Noor v Transport Accident Commission

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Noor v Transport Accident Commission [2024] NSWPIC 25
CLAIMANT:	Haidar Noor
INSURER:	Transport Accident Commission
MEMBER:	Terence O'Riain
DATE OF DECISION:	12 January 2024
CATCHWORDS:	MOTOR ACCIDENTS - Claims assessment; pedestrian; damages claim; liability wholly admitted; workers compensation; terminated a year after the accident and has not worked since; accident caused spinal changes; conventional treatment pursued for four years; 2022 spinal fusion surgery unsuccessful; combination of psychological and functional disability; non-economic loss; past loss of earnings; future loss of earning capacity; earning capacity assessment; loss of opportunity to progress in career; travel expenses; insurer alleges residual earning capacity; theoretical earning capacity where low reasonable prospect of obtaining work to utilise it; insurer alleges malingering based on organisational psychologist’s assessment more than five years after accident; lack of evidence on efficacy of tests for malingering; lack of objective corroborative evidence for malingering allegation such as observations, social media and medical reports; Stevens v DP World Melbourne Ltd considered on credit and alternative reasons for claimant’s poor performance in testing; most likely claimant would have continued in his industry and have opportunities to progress; small chance of returning to work reflected in vicissitudes discount; loss of earnings and buffer for loss of opportunity applied; Mead v Kerney considered; residual earning capacity; most likely future circumstances; evidence; witness; interest; legal costs; accidents caused disabilities and pain that would make it difficult to sit in economy class in long distance travel; travel damages assessed; Personal Injury Commission Rules 2021; Malec v JC Hutton and Wallace v Kam followed; assessment of damages for personal injury; Held – claimant suffered economic loss; damages assessed at $1,794,954.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act2017 *Assessment of Claim for Damages made in accordance with s 7.36 of the MAI Act* 1. On the issue of liability for the claim, the insurer admits its insured driver owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-ss 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017 (the MAI Act), I specify the amount of damages for this claim as $1,794,954. 3. The amount of the claimant’s costs will be as agreed between the parties considering the amount of damages assessed in respect of this claim.

REASONS

INTRODUCTION

Haidar Noor (the claimant) sustained injury as a pedestrian in a motor vehicle accident on 24 April 2018 (the accident). The circumstances of the accident are not disputed and breach of duty of care is admitted.
I am to assess damages following the Motor Accident Injuries Act 2017 (the MAI Act) in respect of the claimant’s injuries.
The Transport Accident Commission of Victoria (the insurer or TAC) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
Mr Noor lodged a common law claim for damages. Initially his then employer’s workers compensation insurer paid for his treatment and weekly payments for loss of earnings.
The claim was listed for assessment on 30 November 2023.
Ms Lydia Wheatley of Law Partners instructed Marco Nesbeth of counsel for the claimant. Ms Natasha Miller of Holman Webb Lawyers instructed Dennis Ronzani of counsel for TAC.
After the assessment the parties provided a schedule of economic loss.[1] They agreed the claimant’s earnings at the date of accident was a flat rate of $28 per hour and that past superannuation losses should be calculated as 12% on net earnings.
[1] Haidar Noor Schedule of Past Economic Loss Insurers (11614756.1).
The parties agreed payments made to the claimant under the workers compensation legislation for weekly payments total $329,533 plus super at $39,544. The income tax paid on those benefits at $75,822.
The parties also agreed that there is an entitlement for the claimant to recover damages in respect of taxation payments referrable to s 4.5(1)(d) of the MAI Act.
The claimant claims that entire amount totalling $444,899 up to 20 December 2023 as his past economic loss. The claimant says that loss continues, and he has lost the chance to earn higher amounts as he advanced professionally.
The claimant seeks a buffer of $300,000 to compensate for his lost opportunities to advance.
The insurer argues that the claimant had and still has significant residual earning capacity. Apart from 28 weeks following Mr Noor’s spinal surgery, the insurer says he could have been working 20 hours per week. From the schedule it appears the insurer says that his future loss is limited to 23.33 hours per week and denies that the claimant would have advanced professionally to earn higher salaries.
The insurer limits Mr Noor’s past economic loss to $203,178 total weekly payment plus $24,381.26 superannuation, with the income tax paid by the workers compensation insurer at $75,822.
The following amounts are in dispute:
(a)    non-economic loss;
(b)    past economic loss;
(c)    future economic loss, and
(d) travel under s 4.5(1)(b) of the MAI Act. The insurer disputes entitlement on this point too.
The insurer’s position on damages is as follows:
(a)    Based on recent objective psychometric testing performed by Dr Matthew Henricks the insurer contends that the claimant is exaggerating his impairments.
(b)    Further, the insurer contends that his back surgery was unreasonable in view of the objective pathology and ought not to have been undertaken.
(c)    Finally, whatever view is taken of the above issues, the claimant should be able to resume some form of skilled sedentary employment. The insurer asserts that Mr Noor has a greater capacity for employment than he alleges.
Whether the back surgery was reasonable and necessary was not the subject of submissions during the assessment.
There was a worker’s compensation treatment dispute about whether the back surgery was reasonably necessary, which resolved in the claimant’s favour. The undisputed fact that the surgery did not have a curative outcome is only relevant to the quantum. Further the decision about treatment is functus and the insurer is not submitting that the claimant failed to mitigate his damages when he underwent the surgery.
Before the assessment Mr Noor requested that he attend via Teams due to his medical condition. He had some medical support for not attending because in the past he had not been able to attend some medical examinations in person. The insurer insisted that Mr Noor attend in person. When trying to accommodate his restrictions it became apparent this could delay resolving the assessment. Mr Noor then changed his position and attended on the date fixed.

While the insurer could argue this showed that Mr Noor’s condition was not as bad as alleged it also showed that Mr Noor was willing to cooperate with providing the insurer with procedural fairness.
Mr Noor demonstrated during the assessment that he was prepared to listen to questioning and answered without embellishment.

DAMAGES

The evidence

The claimant provided statements and oral evidence at the assessment conference.
He is now 42 years of age. He was born in Iraq and migrated to Australia in 2012. He resides with his wife and has two dependent children.
At the date of the accident, he was employed with Blackdot Consulting Pty Ltd as a Graphic Designer on a full-time basis working 40 hours per week. Net weekly earnings were approximately $1,130. He was responsible for the creative components of graphic design, liaising with the marketing team, video editing, photography, designing websites, brochures and printing. He managed stakeholders, the company brand and operated equipment.
He enjoyed this work and the industry. He could apply his studies in design and visual communications to his role. He could provide for his family. He enjoyed communicating and engaging with his colleagues and would occasionally go out for work lunches or coffee runs.
Mr Noor provided two statements, which are largely the same. The most recent is 28 September 2023.
At or about 3.00pm on 24 April 2018, Mr Noor was crossing the road at the intersection of Clarence Street and Jameson Street, Sydney. He was on a lunch break. The insured vehicle struck him on the left side as he was crossing the road on a green pedestrian signal. The force of the collision knocked him several metres onto the road. Mr Noor sat on the kerb where passers-by helped him. He was in shock and trying to collect himself. He had some slight pain to his lower back but otherwise felt fine due the high levels of adrenalin. He did not want to go to hospital and returned to work. As he continued working, he felt a numbing pain in the left leg. He left work early and returned home. He saw a doctor at Observatory Tower Medical Centre near his work two days after the accident and was sent for CT and MRI scans. The scans showed changes described below in the medical evidence summary.
He says he led a full and active life before the accident. He played in a social soccer league weekly with his friends or former colleagues. He trained at the gym participating in boxing classes or weightlifting and ran or walked almost every day. It was his favourite way to stay fit with his wife and friends. He had friends and enjoyed communicating. He did not find it hard to make friends. He enjoyed spending time with his family.
At the date of the accident, he was thirty-seven years old and he was looking forward to seeing how his life would unfold.
After the accident, he underwent treatment to assist with his high pain levels, including physiotherapy, chiropractic consultations, exercise physiology and hydrotherapy. He had multiple lower back injections. His medication included Lyrica, Prazosin and strong analgesia to manage his pain.
He stayed at work, working 20 hours per week initially. He had to reduce these hours later because of his pain and restrictions and medication. He could not concentrate – which impacted his work performance. He says he struggled to sit at his desk for more than 20 minutes before he required rests. He would stretch or go for a short walk to assist with relieving some of his pain. Eventually his employer terminated his employment in or around March 2019. He has not returned to work since.
In April 2022, he underwent lumbar spine fusion surgery wherein cages and screws were inserted into his lower back. He used crutches for approximately six weeks. Following this, he still had a lot of pain. He could not shower without his wife assisting. He lay in his bed for most of the day. His relationship with his wife was strained as he could not engage in any shared activities or help care for their children.
Since the surgery he reports he still has pain and restrictions in his lower back and left leg, with numbing and tingling pain that travels from his lower back down to his left leg and left foot.
He feels weakened and struggles to navigate stairs and must take one step at a time. He begins to limp after walking for up to 15 minutes. Bending down and twisting is hard because of lower back pain, and he uses a grabbing tool to collect things from the ground. Lifting any items of up to 10kg in weight causes pain which can render him unable to do any other tasks for the rest of the day. His pain levels adversely impact his sleep. He medicates to help his sleep.
His physical injuries impact his psychological capacity. He is depressed with both stress and anxiety. He regularly sees a psychologist and psychiatrist to develop coping strategies.
The accident also caused post-traumatic stress disorder. He has nightmares and flashbacks of the accident. He experiences sleep paralysis which is managed with medication from his psychiatrist. The medication makes him feel delusional and to hear voices in his head.
He tries to stay positive for his children’s sake, however, it is difficult when he has pain causing bouts of anger and impatience. His mental condition can spiral when he does not attend his psychologist regularly. He is shaky when he wakes and feels down and upset. He has panic attacks. He feels anxious and dwells on the future.
Since the accident, Mr Noor could only drive for short periods due to lower back pain. He has stopped driving since March 2023 as he had a few anxious episodes while driving. He especially avoids driving at night. He fears another accident. He is worried that if it happens, he will become paralysed because of the metal and screws in his lower back.
He does not like being a passenger. He feels anxious when crossing roads, especially with his children.
He once collapsed at his hydrotherapy class and an ambulance was called. He is afraid to leave the house on his own in case he faints or collapses.
He takes Palexia, 150mg modified release, and 50mg instant release throughout the day (twice a day 150mg MR + 50mg IR in the morning and the same amount in the afternoon). He takes Gabapentin 300mg three times a day for his pain. For his psychological injury his doctor prescribed Cymbalta 120mg, Seroquel 200mg and 30mg Mitrazapine. He takes Panadol Osteo three times a day and Nexium 20mg to treat stomach acid heartburns and take laxatives to help with bowel movement.
He mourns losing his career. It does not feel possible to return to work. He cannot communicate and avoids people. He feels thankful that he no longer works as he does not like being around other people anymore. Thinking about interacting makes his heart race.
His mouth feels heavy and dry when he speaks, and he is self-conscious of his communicating skills because he can stutter and find it hard to choose words. He says he finds conversations are difficult and he tends to lose focus on what is being said.
He says he lacks confidence now because he feels others are judging him. As he requires regular break periods due to pain, it is not practical and manageable to concentrate or perform well in any role.
Ultimately, he is too focused on his pain levels to complete any of his tasks.
If the accident had not occurred, he reports he would have sought a role as a promo producer. Promo producers come up with ideas to promote television shows. This role includes writing and editing scripts, shooting, directing, and editing footage to create short 10-30-second promotional materials to use on TV, websites and social media. The potential salary ranged between $110,000 to $140,000 annually.
His five-year plan was to advance to being an art director. An art director manages the way a publication, product, websites, TV program, film or theatre production looks. They oversee magazines or book covers, advertising campaigns, apps and product packaging. Art director salaries range between $130,000 to $170,000 per annum approximately.
Since the accident, he cannot engage in his domestic duties, like cleaning, dusting, laundry, shopping or cooking. These cause too much pain in his lower back and left leg. He tried vacuuming, but stopped after a minute because bending intensifies the pain. He cannot carry shopping bags. His wife now manages most of the household duties. He cannot maintain the car and the yard. He used to do that before the accident.
He cannot play soccer. He only manages short slow-paced walks for 20 minutes He manages the leg and lower back pain with medication and rest. He sometimes walks with his children to spend time with them because he cannot do other activities like going to the park. He cannot engage with them because he cannot do much. The accident’s effects mean he cannot nurture his children or pay attention to them. His friendships have become strained as he avoids others and no longer socialises. All he can think and talk about is his pain, so he thinks people avoid him too because of that.
Mr Nesbeth’s questions at the assessment conference confirmed Mr Noor’s statement.
Mr Noor doubts after the accident he could apply himself to his previous work because he cannot tolerate sitting anymore.
He talked about how he had loved travelling overseas before the accident and that now he was not able to do because he could not tolerate sitting for long periods. He travelled overseas annually before the accident. He had also enjoyed long car trips.
He mentioned that the insurer had arranged a psychiatrist to examine him in early October 2023. The report from this examination has not been served.
Mr Ronzani questioned Mr Noor for the insurer about whether Mr Noor could return to work at the Royal Australian College of Physicians (RACP), which seemed to carry less responsibility than the role he held with Blackspot. Mr Noor answered he could not see himself returning to work in his current state and that he had left RACP to work at Blackspot because he wanted more pay and better work.
He was reminded that he had managed to work for 12 months after the accident. As he has had the operation, it was suggested he could return to work in a reduced capacity. Mr Noor said his wife had encouraged him to do this, but his general practitioner (GP) certifies that he has zero work capacity now.
Mr Ronzani also put it to Mr Noor that if he used a stand up desk to alternate between standing and sitting, used regular breaks and utilised other rehabilitation tools to assist him he could still carry out sedentary work, as he had in the past.
Mr Noor confirmed he still had connections in his industry. He thinks that the industry has moved on and that he would have trouble getting back in.
Mr Ronzani ask if Mr Noor intended to return to work once the litigation is finished: Mr Noor responded that\he makes no plans since his injury.
He admitted he still has a page on LinkedIn with information about him.
Mr Ronzani put it to Mr Noor that he could manage work, if he had the litigation pressure resolved.
I asked Mr Noor whether he had any examples of his work to view such as ads or promotional clips. He referred to a short video documentary he made about 10 years ago called Show and Tell about loss and mourning.
After a rest break, I asked Mr Noor if the workers compensation or compulsory third party (CTP) insurers had ever made contact in the past five years about arranging assistance with return-to-work strategies including stand up desks, rehabilitation tools or alternative careers counselling. He confirmed this had not happened.

MEDICAL EVIDENCE

General practitioners

Dr Nirmal Grewal, GP at Observatory Tower Medical Centre in Sydney examined Mr Noor two days after the accident.
An MRI scan taken 1 May 2018 noted “Since accident last Tuesday has numbness and feeling of left leg being heavy when [he] goes up stairs. Numb feeling runs down the leg to foot.”
On 18 May 2018 the claimant consulted Dr Hany Abdalla at Norval Street Medical Centre in Auburn noting the subject accident and that he started experiencing numbness in his left leg two days after the accident, and his lower back pain slowly started increasing. The claimant returned to this Medical Centre on 24 May 2018 and saw Dr Kevin Luu, who noted ongoing lower back pain with left leg numbness radiating down to the toes. With respect to the mechanism of the accident it was noted that the claimant was struck on his left hip and rolled roughly one metre after landing on the ground.
The subsequent clinical notes consist of notes about referring Mr Noor to various specialists.
He continues to see a GP near his home in Victoria for prescriptions and treatment.

Dr Ian Farey, orthopaedic surgeon

Mr Noor’s GP referred him to Dr Ian Farey, orthopaedic surgeon, who reviewed him on 12 June 2018. Dr Farey opined that Mr Noor was suffering from an irritative and compressive left S1 radiculopathy secondary to annular disc protrusion and that the motor accident caused the symptoms.

Dr Farey recommended an epidural steroid injection on the left side at the L5/S1 level which happened on 13 July 2018.
Mr Noor had continuing lumbar spine pain. A repeat lumbar spine MRI on 21 September 2018 found “A left posterolateral annulus tear and disc bulge at L5/S1, similar to minimally smaller than the previous study, abutting but not compressing the S1 nerve origin”.
Mr Noor returned to Dr Farey on 17 June 2019. Dr Farey documented further symptoms.
A further lumbosacral spine MRI on 17 January 2020 described a minimal disc bulge at the L3/4 level and L4/5 level minimal disc bulge, early flaval hypertrophy and minimal narrowing of the lateral recesses without traversing or exiting nerve root impingement. L5/S1 level showed a tiny left posterolateral annular tear and minimal left posterior disc bulge and minimal abutment without displacing the traversing left S1 nerve root.
Dr Farey saw Mr Noor again on 1 August 2019. Dr Farey documented no nerve root compression; with evidence of degenerative disc disease and an annular tear at the L5/S1 level. Dr Farey was against surgery.
He warned that Mr Noor symptoms may increase because of nerve root inflammation. Dr Farey recommended that Mr Noor should continue with his current treatment. Dr Farey noted Mr Noor remained fit for his work-related duties.

Dr James van Gelder, neurosurgeon

Dr James van Gelder saw Mr Noor twice based on correspondence to the GP dated 13 September 2018 and 11 November 2018. Relevant to this assessment, the specialist located the injury and noted (a) Mr Noor was suffering considerable pain, (b) that he should continue conservative treatment, (c) that he was engaged with attempting to get better and (d) that he was not displaying maladaptive pain behaviour.
Guardian Exercise Rehabilitation provided a pre-exercise assessment on 26 October 2018. Mr Noor underwent an initial eight sessions over 12 weeks of a clinically guided exercise program.

Dr Alister Ramachandran, pain specialist

Dr Alister Ramachandran, interventional pain medicine specialist, reviewed Mr Noor on 2 September 2019. Dr Ramachandran diagnosed Mr Noor with:
(a)    chronic axial lumbar spinal pain with somatic referred bilateral gluteal pain of probable discogenic/facetogenic origin;
(b)    chronic lumbar radicular pain – left lower limb;
(c)    adjustment disorder – anxiety/depression;
(d)    active post-traumatic stress disorder;
(e)    secondary deconditioning;
(f)    fear and avoidance behaviour;
(g)    high levels of stress – DAS 21 scoring, and
(h)    high levels of catastrophic thinking.
Dr Ramachandran recommended a pain management plan, which included education, medication, physiotherapy and psychological interventions.
Dr Ramachandran’s letter dated 2 September 2019 summarises how Mr Noor’s pain impairs his capacity to do much beyond self-care.
The doctor notes Mr Noor was made redundant in April 2019 because he could not perform his previous duties; he cannot contribute to household chores; moving about or driving is difficult, and the constant pain aggravates his diagnosed post-traumatic stress disorder and anxiety.
He takes high levels of pain medication, and his psychiatric troubles require regular treatment.
Mr Noor returned to Dr Ramachandran on several occasions including an epidural injection on 18 October 2019 into the L3/4 interspace.

Dr Darweesh Al Khawaja, neurosurgeon

Dr Darweesh Al Khawaja, neurosurgeon reviewed Mr Noor on 13 February 2020. Mr Noor’s pain limited the examination. There was general weakness of the left leg in all muscle distributions.
Mr Noor underwent nerve conduction studies and EMG which were performed with a further specialist on 9 March 2020. The nerve conduction studies/EMG of the left lower limb did not detect any pathology.
Dr Al Khawaja noted on 7 April 2020 that although Mr Noor’s nerve conduction studies did not show any major nerve injury; it did not exclude nerve irritation. Mr Noor still had significant amount of pain in his back and his left leg. Dr Al Khawaja found there was a disc fragment with a tear touching the left L4 nerve root, which he thought may be causing Mr Noor’s symptoms.
Dr Al Khawaja recommended another injection into the left L4/5 facet and left L4 nerve root, which he performed on 29 April 2020.
On 19 May 2020. Dr Al Khawaja documented that the injection helped Mr Noor only for a very short period.
Mr Noor underwent another lumbar spine MRI on 27 May 2020.
Dr Al Khawaja reviewed Mr Noor in person on 18 June 2020. Dr Al Khawaja documented that Mr Noor was still in significant pain with tingling in his left leg and foot. Mr Noor underwent a whole-body bone/SPECT and CT scan on 9 July 2020.
Mr Noor returned to Dr Al Khawaja on 30 July 2020. Dr Al Khawaja recommended that Mr Noor should continue treatment with his pain specialist with an injection to the left L5/S1 facet and the left L5 nerve root, not only as a treatment but also as a diagnostic tool to understand Mr Noor’s pain generator. This happened on 4 November 2020.
On 22 December 2020 Dr Al Khawaja documented that Mr Noor reported improvement after the injection; however, the effect lasted only up to two weeks.
On 2 February 2021 the next proposed treatment suggested to Mr Noor was either repeat the injection or operate to fuse Mr Noor’s spine at the L5/S1 level. Mr Noor went to see Dr Al Khawaja. The surgeon advised Mr Noor about the potential risks.
Dr Al Khawaja fused Mr Noor’s spine at Northwest Private Hospital in April 2022. Mr Noor stayed in hospital for 10 days.
After the operation he underwent physiotherapy, hydrotherapy and exercise physiology.

Dr Robert Breit, orthopaedic surgeon

The workers compensation insurer qualified Dr Breit, who provided his report dated 23 March 2021. That insurer declined to approve the surgery Dr Al Khawaja eventually performed.
Dr Breit opined that Mr Noor had normal reflexes and a lumbosacral disc lesion and non-verifiable radicular complaints associated with significant maximisation and non-organic complaints (my emphasis). By maximisation it appears that the doctor meant abnormal illness presentation.
Dr Breit stated that where there is maximisation and psychological issues that surgery outcomes are often poor, and he did not think the surgery was a reasonable step to improve Mr Noor’s health.
He predicted a poor prognosis, “no matter what”.

Dr Thomas Kossman, orthopaedic surgeon

The TAC qualified Dr Kossman who provided his reports dated 21 August 2023 (2) and 21 November 2023.
These reports were submitted as late documents under rule 67 of the PIC Rules with a vocational assessment report referred to below. Following procedural direction PIC3 cl 28, I considered it was in the interests of justice to allow these reports because they contained information that could be probative to the facts in issue and fit with the objects of the Commission under ss 3 and 42 of the PIC Act.
The claimant did not object to the documents being considered.
Dr Kossman’s opinion on causation did not address any other factors but the accident. However, he opined that Mr Noor’s current condition was failed back surgery syndrome, rather than result of a frank spinal injury in the accident.
He considered Mr Noor’s prognosis to be poor. He will continue to suffer from ongoing pain issues in his lumbar spine, for which he will require further treatment with pain medication and anti-inflammatories.
Gentle physiotherapy, hydrotherapy and exercise physiology as well as acupuncture may help if it is part of his pain management. A review of his pain medication may include using cannabis oil.
Mr Noor had no movement in his left toes, which may be related to a neurological deficit.
Mr Noor suffers from anxiety and depression so psychiatric treatment could be ongoing.
Dr Kossman said that Mr Noor’s lumbar spine condition has had a profound impact on every aspect of his life. Mr Noor is dependent on his family, particularly on his wife, who must take care of some of his daily living activities and personal care. The doctor recommended that an occupational therapist should see if Mr Noor requires tools, aids, domestic services and changes to his accommodation.
Dr Kossman opined Mr Noor has no work capacity to return to his pre-injury work or any modified/light duties if he continues to suffer from excruciating pain issues. If further treatment improved his pain issues, Mr Noor may regain some work capacity, although he is at high risk not to return to any employment in the foreseeable future.
The doctor recommended that Mr Noor abstain from walking long distances, walking on uneven ground, walking upstairs and downstairs, walking on inclines and declines, climbing up and down ladders.
Relevant to the disfigurement aspect of non-economic loss Dr Kossman assessed the surgical scarring as easily identifiable, with contrast between the scar and surrounding skin.
The trophic changes are evident to touch with staple marks or suture marks clearly visible. The scars cause some minor limitation in daily activities. Exposure to chemical or physical agents (for example sunlight, heat, cold etc) may temporarily increase those limitations and no treatment will mitigate this.

Dr Matthew Henricks’ Vocational Assessment Report

Organisational psychologist Dr Henricks’ report 21 August 2023 for the TAC recorded two tests he said were designed to detect malingering. He administered a Structured Inventory of Malingering Symptomatology (SIMS) – an inventory assessing the exaggerated presentation of symptoms of maladjustments.
He followed this with a Miller Forensic Assessment of Symptoms Test (M-Fast) – a structured interview designed to provide information regarding the probability whether an individual is malingering psychiatric illness.
Dr Henricks opined the SIMS test displayed a heightened overall probability that psychological difficulties are being magnified (either consciously or unconsciously). Dr Henricks also noted that Mr Noor may experience symptoms that have atypical severity and pervasiveness.
He also referred to unusual symptom combinations, unusual and uncommon psychotic symptoms, an unusually sudden onset or cessation of mental illness an overly negative self-image.
Due to Mr Noor’s SIMS results, his results on the M-Fast did not surprise Dr Henricks, because Mr Noor displayed exaggerated symptoms. Dr Henricks still regarded Mr Noor’s cognitive ability and skills results as useful to make a conservative estimate of his ongoing capacity.
The nonverbal reasoning scale was administered with Mr Noor. Dr Henricks opined his non-English speaking background meant that he was likely to yield a more accurate overall estimate as to his general mental ability. Mr Noor’s non-verbal reasoning score was assessed to be in the well below average range (66-77: 2nd percentile). Such a result indicates only a rudimentary capacity for on-the-job learning, spatial perception, visual-motor integration, visual information processing, and pattern recognition.
Dr Henricks opined that result is inconsistent with his capacity to complete a bachelor’s degree at a major Australian university and work as a multimedia designer. The test results would indicate that Mr Noor would struggle to live an independent life and could have struggled to comprehend many test questions.
Dr Henricks concluded that these results could not measure Mr Noor’s true cognitive ability because of both the SIMS and M-Fast validity test results. In such a context, his vocational history was likely to be a more accurate predictor of his ongoing capacity than standardised test results.
Mr Noor answered correctly on only 2 out of the 12 questions administered as part of the numeracy subscale. This result was in the below average range and indicated that he possessed only a rudimentary capacity to access, use, interpret, and communicate basic mathematical information and ideas in order to solve a range of practical situations likely to arise in his everyday work or personal life.
This result was obtained without a calculator and was inconsistent with his reports that maths was one of his best school subjects. This suggests that Mr Noor would struggle to complete basic financial store transactions. Dr Henricks opined Mr Noor’s results on this scale appeared to be invalid and his future capacity for work involving basic mathematics is best inferred from his past vocational history.
However, given the results, an additional test was administered to more directly assess Mr Noor’s ongoing capacity to read English words.
The results were in the below average range for someone in his age group and broadly inconsistent with completing tertiary studies at an English-speaking university. These results can only be used as a conservative estimate as to Mr Noor’s true capacity to read.
Dr Henricks opined that because there is no brain injury, any cognitive difficulties experienced from the accident will be temporary.
Dr Henricks said both of his validity tests indicated the possibility of symptom magnification in relation to Mr Noor’s psychological state, though he admits that clinical diagnosis is beyond the scope of a vocational assessment. The vocational assessor was critical about Dr Rastogi or Mr Attai not testing Mr Noor’s self-reported symptoms when diagnosing and treating him.
Despite the diagnosed psychological conditions Dr Henricks opines that Mr Noor’s return to work would boost his self-esteem, increased structure for his day, and a distraction from his problems.
Dr Henricks opines Mr Noor’s educational, and employment related history would provide a better predictor of his true ongoing cognitive capacity. His capacity to complete graduate-level studies at a major Australian university (UTS) suggests Mr Noor is likely to possess general mental abilities in the average range and this suggests his ongoing capacity for retraining up to a similar level of difficulty provided he has sufficient ongoing motivation. Mr Noor also has the capacity to perform clerical work of an elementary or intermediate difficulty level.
Dr Henricks suggests Mr Noor would be an ideal candidate to attempt a phased self-paced return to work from home. Mr Noor could start by bidding for just one or two graphic design or video editing projects via an online freelancing website. This approach would help to break the inertia that sometimes builds when one has been away from the workplace for an extended period. He could slowly build his emotional stamina up to a point where he can tolerate full-time equivalent hours over a three-to-six-month period.
Mr Noor seemed to emphasise his physical ailments were the primary reason that he has not returned to work, so Dr Henricks could not comment on that. He suggested from a psychological perspective, that Mr Noor’s failure to attempt even a minimal return to work via a freelancing assignment or two from home, suggested either personal adjustment difficulties or a lack of motivation to return to work.
Dr Henricks suggested Mr Noor undergo career coaching as well as clinically oriented psychological treatment, to focus on strength-based performance strategies aimed at achieving agreed personal and vocational goals. Dr Henricks did not comment on the lack of insurer instigated attempts to assist Mr Noor to return to work.

Dr Richa Rastogi, psychiatrist, and Attai, psychologist

I was unable to locate these reports or correspondence. The parties listed these items in their bundles and referred to them in the submissions, but the only items I could locate were references in the GP’s clinical notes. The reports suggest that the Rastogi and Attai reports supported Mr Noor’s claimed disability levels.
As Dr Turnbull and Dr Henricks refer to their copies of the reports, I take it that these are accurately reported.

Dr James Bodel, orthopaedic surgeon

Dr Bodel produced a report dated 17 March 2023.
Mr Noor told Dr Bodel that his pain is localised to the lower part of the back from the midline to both the left and right sides, but mainly the left side. He reaches forward in flexion with his hands only to the knees. He has increasing back and left buttock pain at this point and, on extension, with an observed restriction of lateral bending to the right. He has difficulty walking on the toes of his left foot and he cannot perform a single leg heel raise on the left-hand side but can do this on the right-hand side. He has persisting signs of radiculopathy in the left leg.
Dr Bodel was pessimistic about whether Mr Noor could do 10 hours a week of work with these symptoms. Dr Bodel and Dr Kossman’s findings on the level of disability were alike.

Ms Johanna Castle, occupational therapist

Ms Castle’s report dated 5 May 2023 was based on her consultation with Mr Noor on Zoom.
The assessment identified Mr Noor’s physical and cognitive capacities and potential barriers to employment. This report needs to be read in conjunction with the vocational assessment report prepared by Ms Irinah Jurkowski.
Based on his physical capacity only, Ms Castle assessed Mr Noor is not fit for work. His physical tolerances and pain levels are inadequate for work as a graphic designer. Manual handling capacity is limited due to the risk of increasing pain to Mr Noor’s lower back and radiating left leg pain.
His main functional impairments (that affect his vocational options) are chronic pain, prescription medication use and poor mental health.
Pain behaviour was considered consistent with the diagnoses and postural challenges and pain levels remained the same throughout testing and assessment. Mr Noor limited his participation due to low mood and drowsiness.
Mr Noor has no capacity to lift, carry, push or pull in the light to medium work category (up to 15kg).

Ms Irinah Jurkowski, vocational assessor

Ms Juirkowski’s report dated 7 July 2023 for the claimant says Mr Noor continues to experience severe pain and physical restrictions and psychological sequelae. His physical and psychological impairments have resulted in significant limitation of choice and availability of suitable jobs that match his capacity, skill set and experience, and this situation is likely to continue indefinitely.
She recorded that Mr Noor’s psychological state includes:
·        tearfulness;
·        disturbed sleep;
·        social withdrawal;
·        irritability;
·        hypervigilance;
·        frustration;
·        flashbacks;
·        explosive anger;
·        decreased energy;
·        decreased concentration;
·        impaired memory;
·        suicidal ideation;
·        self-harm;
·        harm to others;
·        panic;
·        depression;
·        embarrassment;
·        shame;
·        guilt;
·        anxiety;
·        stress;
·        poor self-esteem;
·        lack of confidence;
·        fatigue;
·        fear;
·        nausea;
·        loss of motivation;
·        agitation;
·        hostility;
·        aggression;
·        confusion;
·        mood changes;
·        feeling sad and down, and
·        withdrawing from friends and social situations.
This has impacted on his life as follows:
·        emotional ramifications / severe restriction of psychological capacity for employment on the open labour market;
·        disruption to social, domestic and recreational activity;
·        reliance on medications to manage mood and pain;
·        poor concentration due to pain and fatigue from sleep deprivation due to pain;
·        mood swings and explosive anger;
·        social isolation;
·        loss of reputation and pride in work;
·        uncertainty and loss of hope about the future;
·        physical deconditioning and loss of work fitness;
·        loss of confidence for job seeking, and
·        long period of unemployment making him unattractive to potential new employers.
Strong executive functioning is necessary to deal with the daily work demands and to plan strategically in order to advance the employer’s goals and personal advancement goals. Mr Noor’s executive functioning has become impaired due his psychological condition as follows:
·        problem solving – defers to his wife;
·        emotional Intelligence – easily becomes irritable;
·        multi-tasking – he is not able to do more than one thing at a time;
·        prioritising – writes lists as prompts;
·        adaptability – difficulty adapting to change;
·        effective communication – deliberately isolates from people;
·        attention to detail – inability to concentrate and focus;
·        big picture thinking – inability to think about future developments, and
·        time management – poor time management skills compared to before injury.

Mr Noor’s studies and work experience is in graphic and digital design, marketing, audio-visual creativity and solution solving.
He has advanced computer skills and can operate complex software suites.
After the accident Mr Noor attempted to return to graphic design work on suitable duties, initially five hours, a couple of days a week, then adjusted down to two hours due to severe pain.
His job was sedentary, and his condition means he is unable to sit for prolonged periods.
His job demands concentration and creativity. He stated he was heavily medicated at the time and had difficulty concentrating and focusing. His attention to detail was poor and his creative work suffered due to a lack of ideas. He had difficulty working with clients and convincing them of his concept designs. He had difficulty handling the equipment at work.
Analysing the skills, he acquired through his employment history it is apparent that when he was well, he could operate in most office environments. Now he is unwell psychologically and physically those skills cannot be relied on and his aptitude for work generally is reduced.
Testing for depression and pain experience showed that Mr Noor’s operating capacity is severely reduced.
The issues listed above militate against his returning to work in his previous role.
Those same factors reduce his capacity to retrain in other types of work. He cannot concentrate enough to return to study to reinvent himself.
If he was still working in digital and graphic design, he could be earning between $75,000 to $115,000 per year.

Dr Leon Turnbull, psychiatrist

Dr Turnbull’s report dated 9 July 2023 says Mr Noor takes a range of analgesics that include Palexia, gabapentin, and Panadol Osteo. The antidepressant Cymbalta is prescribed both for mood and pain.
The mood stabiliser quetiapine is prescribed as a calmative.
He was using prazosin to help with nightmares which he has experienced since the accident, but he had to stop those as he was getting some sort of panic episodes and lowered blood sugars. Nightmares now occur at least nightly, and they are replays of the accident itself or other similarly themed scenarios. He wakes from them in fright and a state of discombobulation. He has flashbacks.
He requires significant medication to get in a vehicle and drive, and not surprisingly that cocktail of medications sees him sedated such that he basically does not drive anymore. The medicine does not provide complete relief.
Dr Turnbull opined Mr Noor’s post-traumatic stress disorder is related directly to recollections of the accident, while the major depressive disorder is related more to his back condition, and if that back condition is accident-related, then there is a logical pathway between the accident and his depressed psychiatric state.
He feels anxious, physically vulnerable and fragile in cars, and worries that he will further damage his back.
He has not done a pain management program, but he has seen a pain specialist and that was not successful.
He sees his psychiatrist every three months and his psychologist weekly. He finds them supportive and feels he would not be here without them. He continues to have suicidal thoughts.
He cannot retain knowledge. He has lost his eye for detail and cannot cope with multitasking.
He feels helpless and hopeless. He stays home most of the time.
He has a significantly eroded mental functioning, his moods are unstable and depressed and agitated, his emotions are disturbed, his sleep is interrupted by nightmares, and he struggles to function and execute tasks day to day.
Dr Turnbull’s opinion is that the prognosis is not good, unless Mr Noor physically improves, and that could potentially open a pathway towards improvement in mood and then maybe a better result in terms of his Major Depressive Disorder. Dr Turnbull opines that, even if there is a substantial physical improvement, the Post-Traumatic Stress Disorder is more likely than not to remain much the same.
Dr Turnbull approves of his current treatment regime, which he says will be needed indefinitely.
Dr Turnbull is of the opinion that he is completely incapacitated for all work. He is too distracted, he does not have stamina, and he is up and down in his moods and emotions. The doctor was pessimistic about Mr Noor ever returning to work.

Personal Injury Commission’s workers compensation certificate of Medical Assessor Michael Long dated 22 September 2023

Medical Assessor Long examined Mr Noor to assess permanent impairment in order to make a lump sum claim under the workers compensation legislation. The comments on Mr Noor pain and disability are relevant to assessing non-economic and economic loss.
Mr Noor’s anterior and posterolateral interbody fusion (Wiltse) osteotomy and decompression was uncomplicated and radiologically appears to have been effective.
Mr Noor reports continuous pain in the lower left and right lumbar region, which is usually 8/10 with medication and without medication. The pain radiates into the anterior left thigh and posterior left leg and there is numbness in the anterior left thigh, which is continuous. There is also numbness on the superior and plantar aspect of the left foot. He is aware of ongoing weakness in the left leg, and he tends to trip. The back pain and left leg pain are aggravated by coughing and physical activity, and it then takes on a stabbing quality.
Occasionally, because of severe pain, it has been necessary for him to attend the Emergency Department at hospital. These severe episodes can continue for up to two weeks during which he requires more personal assistance. The back pain also seems to radiate into his rectum and into the testicles, where it causes a hot sensation.
Sexual activity is almost impossible because of his pain.
Sleep is minimal because of his pain. Lack of sleep and his medication are associated with fatigue during the day. His concentration is poor.
There is a delay in urinating, and he finds it easier to sit when passing urine.
He is continually constipated, but this is controlled with laxatives, which cause occasional diarrhoea.
Over the past two years, he has been aware of heartburn, which has not been specifically investigated or treated.
Before his surgery, Mr Noor became depressed in 2019 and commenced seeing a psychologist weekly and a psychiatrist every two to three months. The accident has prevented him from doing the work he understood and enjoyed. He has now withdrawn from his work colleagues and other friends. He has suicidal ideation.
The accident has left Mr Noor with severe ongoing pain with radiculopathy left leg due to his lumbar spine injuries.
Mr Noor continues to have incapacitating pain in the low lumbar region with radiculopathy.
Mr Noor’s lumbar spine injury adversely impacts his capacity to perform his activities of daily living.

THE CLAIMANT’S INJURIES

There is no dispute Mr Noor sustained the following injuries:
(a)    a left posterolateral annulus tear and disc bulge at L5/S1;
(b)    L5/S1 disc and facet injury and foraminal narrowing causing compression at the L5 nerve root;
(c)    possible fragment of disc at the L4/5 level the L4 nerve root;
(d)    post-traumatic stress disorder;
(e)    major depressive disorder;
(f)    anxiety, and
(g)    depression.
There is some argument from the insurer that Mr Noor did not mitigate his damage, because he decided to have surgery, which has led to a poor outcome. The insurer’s submissions do not go deeply into that. I have not given it weight because Mr Noor pursued conventional treatment for four years before the surgery was performed. The surgery was reasonable treatment in the circumstances, and it is unfortunate, and beyond the control of the claimant that the treatment was unsuccessful.

DAMAGES QUANTUM

The fundamental principle of assessing or awarding damages to an injured person is that a tribunal should assess damages so that they represent no more and no less than a plaintiff’s actual loss: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, Lord Blackburn at [39].
Medical reports have been provided which document the claimant's injuries and their impact on daily life.
The claimant shared how the accident had affected his ability to perform daily activities, work, engage in hobbies, and maintain relationships. He answered counsel’s questions although he took occasional breaks because of pain.
The insurer focused on Dr Matthew D Henricks’ opinion that suggested the claimant was malingering. The insurer’s key points included showing that the claimant provided elevated scores on two tests for malingering. The report said that the testing provided results suggesting that the claimant’s potential for future employment could justify being “investigated further via alternative objective sources of data.”
However, there were no contradictions in statements regarding the extent of pain and suffering experienced. There was no surveillance footage or social media posts challenging the claimant's assertions and suggesting inconsistencies between reported limitations and observed behaviour. There were no reports from insurer-funded rehabilitation providers regarding attempts to return to work, which would have given me a longer-term view of whether the claimant was making bona fide attempts to mitigate his losses.
Dr Henricks’ proposition did not have supporting medical evidence, including any report from the insurer’s recent psychiatric examination.
For example, Dr Kossman who interviewed Mr Noor most recently for the insurer wrote Mr Noor presented at his examination in a way that was completely consistent with the reports of symptoms, complaints and restrictions.
Dr Henricks has stated that the claimant was exaggerating his symptoms based on the statistical analysis of the results of two tests.
The insurer seeks that I consider the elevated malingering scores or views about exaggerated symptoms in the Henricks’ report in deciding the amount of damages. The report does not give an actual score or quantify the “malingering”. The report says that it is not conclusive. The tester ran another test, which also found that score was elevated, but it did not provide a normative score for comparison.
There were also no data or references to peer-reviewed papers, which affirmed how reliable and valid the applied tests were. The insurer did not provide examples where this testing has resulted in convictions or successful civil claims against malingering claimants.
Dr Henricks is critical of Mr Noor’s lack of attempts to return to work and suggested coaching to assist Mr Noor to do so. Dr Henricks suggests this in August 2023 in the context of both insurers failing to provide any support from rehabilitation providers between 2018 and now.
In many cases insurers provide copies of case notes which show how they have assisted injured persons to return to work, particularly in statutory schemes. This was not the case for Mr Noor.
Dr Henricks’ report provided no detail of the extent of the “malingering” detected via testing. Furthermore, the testing was undertaken after a long history of not being assisted to return to work, pursuing conservative treatment and then failed back surgery.
The Victorian case of Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 (Stevens), highlights that if a party asks a tribunal to make findings on credit, then a tribunal may–where the claimant’s mental injury or other relevant factors are part of the facts– consider whether these could impact on how that claimant gives evidence. Accordingly, it is possible in this case to hypothesise that a lack of reliability or inconsistency could have been the product of Mr Noor’s conceded psychological conditions rather than an attempt to mislead.
Other factors could be lack of sleep and the heavy medications he was taking, which he admits leave him foggy and fatigued. The fact that the assessment took place in Mr Noor’s bedroom via video could also contribute to the lack of reliability.
For those reasons I do not find that Dr Henricks’ report would tip the balance towards finding Mr Noor has malingered and that he is hiding his true working ability on purpose.
However, the questioning during the assessment on Dr Henricks report revealed that the claimant had a keen intellect and that he retains some of his problem-solving ability, despite Dr Henricks’ testing showing poor outcomes. I agree with Dr Henricks’ observations that the claimant’s work and educational history would more accurately predict his future trajectory regarding work than his testing on malingering.
Mr Noor could regain some residual earning capacity once this case resolves due to his intellect and work ethic reasserting itself as he achieves some mitigation of his symptoms. However, Dr Kossman’s pessimism, among other doctors, about Mr Noor’s prospects mean that I cannot discount Mr Noor’s future losses greatly.

Non-economic loss

In personal injury matters, because it is difficult, if not impossible, to restore an injured person to the health they enjoyed before the injury, the compensatory principle has been qualified for non-economic loss damages by the phrase “so far as money can do so”: Robinson v Harman [1848] All ER Rep 383.
Section 1.4 of the MAI Act defines non-economic loss as
(a)    pain and suffering;
(b)    loss of amenities of life;
(c)    loss of expectation of life, and
(d)    disfigurement.
The law recognises that an award for non-economic loss will not necessarily be perfect because it cannot be calculated with precision like other forms of damage in terms of money.
There is a statutory cap of $605,000 that limits the amount of non-economic loss damages. However, a tribunal cannot calculate the entitlement based on a percentage of that maximum amount, and there is no proportionality.
Mr Noor submitted the appropriate assessment is $450,000, and the insurer submitted $180,000.
There is considerable physical pain and suffering from his bodily injuries. The claimant also suffers mental anguish and unwelcome intrusions arising from post-traumatic stress disorder, anxiety and depression. In addition, there is evidence of a significant loss of amenities and enjoyment.
The pain and the mental conditions impact his capacity to sleep soundly, excluding him from considerable benefits for his daily activities.
Being unable to sleep soundly due to his accident is a severe disability. It is an important biological function essential for life.
Vital functions during sleep help the body in physical recovery and repair, support brain development, cardiac function and body metabolism, support learning, and improve memory and mood. Mr Noor will find it hard to mitigate his daytime condition and exercise residual work capacity if he cannot achieve optimal sleep.
More than four years have passed since the accident. Since then, he has experienced nightmares and flashbacks coupled with often severe physical pain. He takes strong medication with side effects and has required extensive counselling and therapy with limited success.
All the doctors agree that his condition will not alleviate to enable him to reach his level of functioning before the accident.
Mr Noor had reasons to be optimistic before his accident, but now he is tired, in pain, constipated, medicated, withdrawn, anxious and pessimistic.
He had things he enjoyed doing before the accident like sport, being present for children, his romantic life with his wife, friendships, socialising and mastery at work, that he can no longer do because of the accident. These are critical aspects of a well lived life, which he had before the accident.
Regarding the physical injuries, I note how the pain continues in the listed injured body parts. Mr Noor requires physiotherapy and potent medication to manage.
All the doctors agree that Mr Noor’s condition will not alleviate to enable him to reach his level of functioning before the accident.
Mr Noor had reasons to be optimistic before his accident, but now he is tired, in pain, medicated, withdrawn, anxious and pessimistic.
Disfigurement is relevant to Mr Noor’s case because the medical reports assess and rate the scar’s severity.
Mr Noor did not claim that he would have a shortened life.
Mr Noor’s condition is chronic, and he can expect 40 more years on the medium life tables to live with the after-effects of the accident.
I assess the non-economic loss damages at $303,000.

Past economic loss

Mr Noor showed that before the accident he had a consistent earning pattern in his industry. He had qualifications that fitted his employment, and he was using his education and experience to earn regular income. He had exhibited a pattern of modest progress, as he sought jobs with better pay and opportunities. He had exhibited creativity, using his design and audio-visual skills and ability to produce his own work.
After the accident he attempted to maintain employment, but his employment was eventually terminated almost a year after the accident. The workers compensation insurer continued payments.
The medical evidence supports Mr Noor’s claim that he has suffered pain, limited movement, loss of focus and lacked endurance to continue in his previous roles. His medical certificates maintain he continues to suffer a total loss of working capacity. There are no recent medical reports arguing that Mr Noor’s condition was going to improve.
The insurer argues that after his accident in most weeks Mr Noor could have worked 20 hours per week. There are variations but apart from closed periods of total loss due to surgery the insurer says that Mr Noor retains almost half of his previous earning capacity.
This is based on Dr Henricks’ assertion that Mr Noor may have been malingering based on his testing. I give that assertion little weight. I agree with the claimant’s submissions on his past economic loss in the schedule referred to in this decision’s earliest paragraphs.
I assess Mr Noor’s past economic loss up to 20 December 2023 as $329,533 plus super of $39,544 plus income tax paid on past benefits = $444,899. The economic loss is continuing at $1,213.24 net per week.
Income tax and superannuation between 20 December 2023 and the date of this decision can be agreed between the parties based on the rate of economic loss.

Future economic loss

In assessing future economic loss, I must consider s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances.
Based on observing him during the assessment, what he said in his statements and during questioning, I accept it was most likely that but for the accident he would continue doing the same work. He is intelligent and well spoken. He spoke of his interest in the work, his enjoyment in interacting with stakeholders and how he had been excited about doing more as a producer/director. There was no contradictory evidence from past employers or industry experts to dispute his evidence.

The accident has caused Mr Noor to suffer a diminution in his earning capacity, which based on the doctors’ opinions will continue indefinitely.
I accept that his loss up to now, and indefinitely will be total because the symptoms are persistent and reduce his ability to compete on the open labour market.
The insurer alleges that Mr Noor has a significant residual earning capacity. It was put in questioning that Mr Noor could be accommodated with a stand-up desk, modified hours and scheduled rests and that he was aware of this. The questions showed the insurer’s position that he was delaying returning to work to maximise his claim.
The insurer did not provide evidence to support this other than Dr Henricks’ report. There were no reports of return-to-work trials or consultations with rehabilitation providers showing Mr Noor was withholding cooperation with that goal. Recent medical evidence does not suggest an alternative trajectory other than a total loss of working capacity.
Despite Mr Noor’s incapacity, he was engaging when he spoke of his work. It displayed his charisma, which he would have used to manage stakeholders and lead teams. He spoke as if he enjoyed his work for the mastery, he felt performing it. Because of these points I find it is probable that he could have progressed his career to more challenging and rewarding roles.

Dr Henrick’s point that Mr Noor’s experience and demonstrated capability as pointing towards his future capability is the insurer’s strongest point, albeit it manifests only as a chance that he could return to work.
The High Court enunciated in Malec v JC Hutton Pty Ltd (Malec)[2], how the likelihood of future hypothetical events is to be considered.
[2] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Justices Deane, Gaudron and McHugh stated:
“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring . . . Where proof is necessarily unobtainable, it would be unfair to treat as certain a predication which has a 51 per cent probability of occurring but to ignore altogether a predication which has a 49 per cent probability of occurring. Thus, the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.”
Therefore, a tribunal needs to assess a claimant's future earning capacity based on all probabilities, including business failures, commercial shocks such as recessions, promotion, growth or alternative employment.
Noting the principles referred to in Mead v Kerney [2012] NSWCA 215 the insurer must prove Mr Noor has a residual earning capacity that he is practically capable (rather than theoretically capable) of exercising.
I must practically assess the likelihood of Mr Noor obtaining and keeping a real job, which is accessible to him, considering his pain, restriction and impairment. I find that the insurer has not demonstrated that Mr Noor is hiding an ability to be employed on a sustainable basis. Dr Henricks report does not counter the substantial medical evidence that supports Mr Noor’s level of disability.
I estimate, because he demonstrated he liked work for its own sake, and he is a charismatic and intelligent man there is a small chance that Mr Noor may return to work sometime in the future. As he is limited due to his physical and psychological impairments this may be in the form of occasional self-employment, freelancing or the monetisation of his creativity. That should be expressed as a slight increase in the discount for vicissitudes to reflect that positive aspect. The discount should be 17%.
The loss alleged is that Mr Noor would have been earning $1,600 net per week by now. That claim is based on the various examples of comparable work provided with the IVJ & Associates’ report dated 7 May 2023. However, this loss of a chance of increasing income can be dealt with under the loss of opportunity to advance his position below.
The worker’s compensation insurer has been paying him $1,213.24 net per week to date. I assess that loss is continuing so I calculate that as follows: $1,213.24 x 753.6 (25 years) x 0.83 = $758,868.
Applying the Najdovski v Crnojlovic [2008] NSWCA 175 approach to calculating future loss of superannuation for his remaining 25 years working is $110,187.[3]
[3] Furzer & Crestani 2022 page 25.
A cushion is appropriate as well, because it reflects the probability that Mr Noor could have progressed in his earnings and been promoted to better paid work if the accident had not happened.
While there is a slight chance Mr Noor could return to work in some capacity, I also assess there is a strong chance he could have increased his earnings and advanced his career. The qualities he demonstrated during his questioning and the fact he was actively looking for other opportunities when the accident happened support this claim.
A further factor was that his work history demonstrated moderate mobility between employers, while his employment was stable. He also affirmed during the assessment that each change was to seek better pay and more challenging work.
I allow a buffer of $150,000 to reflect that loss.

Travel under s 4.5(1)(b) MAI Act

This section provides for damages relating to accommodation or travel in accordance with Regulation 9 of the Motor Accident Injuries Regulation 2017. This is additional to treatment and care expenses but allows for accommodation or travel which the accident-related injury causes. I have looked at Senior Member Williams’ decision in White v AAMI Limited [2021] NSWPIC 449 (5 November 2021), which addresses this, but there are no curial statements about this head of damage.
Mr Noor seeks an award in the sum of $70,000.
Mr Noor gave evidence he was a regular overseas traveller in the past and that he intended to do that in the future if he could manage his condition while travelling. It was implicit that this involves funding to pay for upgrades in aircraft seating.
The insurer submits that the claim for additional cost of travel is not supported by medical evidence, The insurer says he has not established a likelihood of undertaking travel at a level where he requires $70,000 worth of upgrades.
There was no evidence from any of the medico-legal specialists that addressed this need. There was no evidence that Mr Noor had established a pattern of using upgraded seating to travel since the accident.
There was no questioning to establish whether business class travel could mitigate Mr Noor’s pain and accommodate his need to stretch, walk and medicate for a long flight.
I can accept though based on experience including my own and observing other passengers that long distance travel would be difficult for someone with spinal injuries. Mr Noor demonstrated during the assessment that he found it difficult to sit in one spot. The medical evidence supports this too. Economy seating on aircraft can involve having to climb across people and cramped seating. Mr Noor is a big man at 190cm so trying to move sideways past seated people with a spinal condition and heavily medicated would be difficult.
Wider seating found in business class, which meant he did not have to shuffle sideways or climb over people would be more comfortable.
I am satisfied that an award should be made based on that evidence.
It is probable that being a traveller in the past that Mr Noor would attempt long distance travel. The accident has caused injuries which cause consistent pain and discomfort, which are aggravated when Mr Noor sits in one spot for too long. Generous seating can vary in price and availability, so it is not possible to allow a precise amount. I allow a buffer of $28,000.

ASSESSMENT OF DAMAGES SUMMARY

I assess the claim as follows on the findings set out above:
Non-economic loss   $303,000
Past loss of earnings (incl superannuation) $444,899
Future loss of earnings (incl superannuation)         $869,055
Loss of opportunity   $150,000
Travel  $28,0000
TOTAL DAMAGES ASSESSED  $1,794,954
The claimant’s economic losses are to be reduced by the amount of workers compensation for weekly payments.

COSTS AND DISBURSEMENTS

I refer to the claimant’s schedule of disbursements. The insurer did not raise a dispute about the disbursements. However, I see there is a claim for $500 without any particulars on what was incurred, which I would not award without more information.
Applying the 2017 Regulation the parties can seek to agree on costs.
If the parties cannot agree I grant leave to seek that I decide that point.

[2024] NSWPIC 25

12 January 2024