Noori v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 143
•10 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Noori v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 143 |
| CLAIMANT: | Narinder Noori |
| INSURER: | IAG Ltd t/as NRMA Insurance |
| MEMBER: | Terence O'Riain |
| DATE OF DECISION: | 10 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages; liability admitted; physical and psychiatric/psychological injuries; entitled to non-economic loss; claim for past and future economic loss; consideration of medico-legal examinations, vocational assessments, and lay evidence on reliability; lack of documentary evidence of past earnings; pre-accident average weekly earnings assessed based on contractor earnings; average weekly earnings used to calculate economic loss; continuing reduction of earning capacity; consideration and application of section 4.7; Held – damages assessed for non-economic loss, past economic loss as weekly loss, and future economic loss as buffer; claimant’s legal costs and disbursements assessed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.36(1) of the Motor Accident Injuries Act2017 Assessment of claim for damages 1. The insurer admits it owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury loss and damage because of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the MAI Act), I assess the amount of damages for this claim as $768,728.28. 3. The amount of the claimant’s costs, considering the amount of damages assessed in respect of this claim and in accordance with the MAI Act, is $60,722.80 inclusive of GST. 4. Attached to this certificate are reasons for my assessment. |
REASONS
INTRODUCTION
On 17 February 2025, I assessed 31 years old Narinder Noori’s (claimant) claim for damages arising from the motor vehicle accident on 22 May 2022 (the accident). An accredited Hindi interpreter attended the assessment conference to assist the claimant.
Jurisdiction
Mr Noori’s application to assess damages is made under the Motor Accident Injuries Act2017 (the MAI Act).
Mr Noori served his claim for common law damages under s 6.14 of the MAI Act within three years of the accident, and the insurer admitted breach of duty of care in a s 6.20 notice.
The rules of evidence do not apply to this assessment. I may investigate any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
BACKGROUND
Reviewing Mr Noori’s statement dated 20 December 2024 I read that he is an Indian born man who alleges on 12 May 2022, at approximately 7.00am, he was driving in the rain to begin work as a grocery delivery driver in Ulladulla, which was about 12 to 15 minutes away from his then home.
He had moved to the NSW south coast not long before this day as his visa conditions required him to live and work in regional Australia.
A ute traveling in the opposite direction started skidding toward Mr Noori’s car. The last thing Mr Noori recalls was the ute colliding head-on.
He regained consciousness when someone knocked on the driver's side door. He was semi-conscious but noticed smoke coming from his car’s front. The person who found him helped him out of the vehicle to lie down and called an ambulance. Mr Noori is not sure whether the police attended.
The ambulance took him to Shoalhaven Hospital, where he underwent emergency laparotomy surgery on the same day. The accident had caused a seat belt injury to the distal small bowel. This was bleeding and had to be resected i.e. the injured part was removed and rejoined. He spent about two weeks in the hospital after the incident.
The injuries Mr Noori alleges he sustained in the accident include:
(a) bowel rupture;
(b) lumbar spine injury including L2 and L3 end plate fractures;
(c) left knee injury;
(d) fractured ribs;
(e) facial injuries;
(f) major depressive disorder;
(g) post-traumatic stress disorder and other psychological conditions;
(h) lower back pain with radiculopathy;
(i) bilateral knee pain, and
(j) digestive problems.
Recuperating in Sydney a few days after discharge from Shoalhaven Hospital he experienced severe pain at the surgery site when the bowel join leaked. An ambulance took him to Westmead Hospital where Dr Lawrene Yuen had to remove a portion of his colon due to infection. He spent another 12 to 14 days in the ICU.
After discharge from Westmead, he developed another bowel infection and his doctors treated it with antibiotics.
Due to the spinal fracture, he remained in bed convalescing at his sister’s home for about 8 to 10 weeks. Since then, his general practitioner (GP) Dr Prashanta Saha of Hawkesbury Road Family Medical Centre provided his treatment.
He began exercise physiology sessions by mid-2023, attending weekly sessions for about two to four months at Merrylands Rehab Centre.
After a short break to travel home, he resumed weekly sessions in October 2024. He also began hydrotherapy about a month before continuing recommencing in October and attended hydrotherapy once a week for about three to four months.
He began seeing a Harris Park psychologist Dr Sue Stern in about mid-2023 for weekly sessions until he went overseas in early 2024.
The statement says he has become isolated and no longer enjoys socialising and has become forgetful. He has lost confidence and has memory problems.
Mr Noori alleges he cannot continue return to working as a grocery delivery driver. He resigned because the physical demands of the job became unmanageable.
As a delivery driver, he was required to lift and carry heavy items, often weighing more than 20kg. Additionally, he has limited tolerance for long hours of driving, sitting, and sometimes standing.
His spinal and knee injuries prevent him doing physical tasks that require extended periods of movement.
He currently drives for Uber, which allows him to adjust his schedule based on pain levels. He typically works around 20 to 28 hours per week, earning between $500 and $600 weekly, depending on the hours worked.
He says he experiences very frequent bowel movements due to his bowel injuries, which significantly affect his ability to pursue other forms of work. This job is the only option that fits his current lifestyle, and he is unable to commit to full-time work.
EVIDENCE
Claimant’s oral evidence
Mr Noori lives in the Newcastle region with his wife, Naveta. She is a dentist qualified in India. Currently she is his dependent and not working.
He was asked about how his bowel problem affected him when he is driving for Uber. He said that he keeps tabs on toilet locations and avoids long trips. This is so he can manage to reach a toilet if he experiences faecal urgency. He is vigilant and tries to limit his trips to no more than 20km. He will cancel an accepted ride request if he feels theurge on the way to the pickup.
He has even interrupted a trip to use the toilet when he felt it was urgent. He was asked how that affects him psychologically. He said that he feels anxious in heavy traffic, especially when he is driving in an area he does not know.
He was asked about when Dr Keller examined him for the insurer to produce a report dated
1 September 2023. Mr Noori did not remember seeing that doctor. That doctor asked him about sitting, standing and driving tolerances.
Mr Noori said that he has generally improved except for his driving tolerance. This was due to his bowel, right shoulder and lumbar spine conditions.
When he has been working and his right shoulder and back pain are activated, he needs to rest for about one to two hours because he is fatigued. Sometimes he has to rest up to three hours.
His sleep is badly affected. This is because of his right shoulder pain, which makes it necessary to change sides frequently.
Since he moved to Newcastle, he has not been able to see his psychologist Sue Stern. He still feels isolated socially but tries, although he can feel irritable. He still has dreams when he recalls the accident. Occasionally he has panic attacks when he is driving. This happens at times in busy traffic. He has a lot of anxiety about driving when his bowels are playing up. He has lumbar pain frequently.
He keeps driving because he feels that is all he can do. He wants to try more exercise physiology and is waiting on the insurer to approve further treatment.
He was asked about his visa ambitions. Mr Noori said he intends to apply for permanent residence status.
The insurer's counsel questioned him about his ability to travel. He has been able to return to India a number of times. After the accident he went there for three months and had treatment for his accident - related injuries while he was there. However, the insurer would not pay for that because it was in India.
He was asked about his wife who he married after the accident. They had become engaged in December 2021, but he had met her 11 years ago. They married in India and went on a honeymoon with another couple. The plan was to drive two to three hours away from the wedding reception and stay two to three days. He did not enjoy himself on his honeymoon due to his health issues. I asked him whether that was because he was unable to be sexually active and he refused to answer that question.
He was asked about how he qualified after the accident in 2023 to drive heavy vehicles, including semitrailers. Before the accident he had been driving light to medium rigid trucks. Mr Noori said he had done a test because it was offered to him for free. He has not investigated whether work is available as a heavy vehicle driver.
At the moment he is not able to drive in Sydney because of his visa restrictions. Sydney was a better market for ride sharing, because there were more potential clients and he could use the Uber and Didi apps to canvas for work.
He was asked about his visa applications. The questioning went to how could he apply for visas when he claims he has lost the ability to concentrate and complete work. Mr Noori said that he had instructed a migration agent to do the work for him. He was also asked whether he had truthfully completed his visa applications, because it required him to make full and frank disclosure about his state of health. Mr Noori said he had started applying for visas before the accident when he answered those questions.
The insurer's counsel asked about the medication he takes to manage his pain. He agreed with the proposition that he is not required any high-level pain medication but occasionally takes ibuprofen and Panadol.
It was put to him that he was exaggerating about his bowel symptoms in order to maximise his compensation. Mr Noori disagreed.
The insurer's counsel asked about if his bowel symptoms were true why would he not work in an office rather than being a driver. Mr Noori said that working in an office would require him to get up frequently to address his back pain and bowel condition. He does not think anyone would employ him while he can only work part time.
He was asked about his tertiary qualification in food technology, where he could work full-time because it is light work. The insurer's counsel wanted to know why he was not planning to increase to work full-time in that area to take advantage of his qualification and the leadership course he took when he was living in Melbourne before the accident. Mr Noori said that driving part time suits better because of his current state of health.
He agreed with the insurer's vocational assessment, which confirmed he has good computer skills including computer assisted drawing.
He would still prefer to be doing food technology work and would do it if it was available but at the moment he cannot work full-time.
He agreed he could work as an order clerk as well as other roles that were suggested but right now, he cannot work full-time, and it would always be subject to the health problems he experiences.
Other lay evidence
Ranjeet Singh’s statement dated 8 October 2024
Ranjeet Singh met Mr Noori not long before the accident and became friends. He recorded his observations when they shared a house after the accident.
Before the accident he saw Mr Noori as friendly and outgoing. He is now not as outgoing as he was before his accident.
Mr Noori’s two housemates shared the cooking and cleaning duties because apart from a little cooking the claimant was hardly able to assist because of his injuries. He cannot stand long enough to do more.
Mr Noori’s housemates would wash his car because he needs it for work.
Mr Singh noticed that Mr Noori will still be home when he leaves for work early in the morning. When he arrived home at around 5.00pm Mr Noori will already be there.
When Mr Singh asked Mr Noori how his day was Mr Noori says his pain in his back meant he could not drive any longer and came home.
Mr Singh noticed when he comes home, Mr Noori is on the lounge looking exhausted and in visible pain.
Mr Noori's injuries also got in the way of doing things he would regularly enjoy. When they watched a movie, the claimant needed three to four breaks because he cannot sit that long.
When they would go out Mr Noori would avoid activities that could aggravate his injuries. The outings are restricted because Mr Noori’s pain increases and he needs to sit down. He also does not like being around large crowds.
The claimant always has his pillow behind his back wherever he sits to ease the pain.
Mr Noori needs help with his groceries because he cannot carry heavy bags.
Dilraj Kour’s statement dated 10 October 2024
Ms Kour is Mr Noori’s sister. He lived with her for about a year when he moved from India to Australia. During that year she observed Mr Noori was very active and outgoing, frequently spending time with friends and social activities.
Ms Kour worked long hours so Mr Noori contributed and helped her husband to prepare meals and clean the house.
After the accident Mr Noori had to move back in with Ms Kour.
For that first year after the accident, she observed he could hardly do anything. He could hardly walk. He needed help to get out of bed and walk into the bathroom.
Mr Noori relied on her completely including frequently driving him to medical appointments which were throughout the week.
Mr Noori could not contribute to any domestic duties.
When Mr Noori had rebuilt his strength, he started to work in Western Sydney as an Uber driver for a brief period before moving to Newcastle. During this period in Western Sydney, she noticed that he was not coping with the work. He would always be angry and aggressive when he came home because of fatigue and pain. He was emotionally exhausted as well.
Ms Kour noticed that even after Mr Noori’s injuries started to settle, one thing that stayed constant was his frequent need to urgently use the bathroom. Sometimes when they ate together at home or outside her home Mr Noori would need to suddenly get up three to four times to go to the bathroom.
She speaks with Mr Noori daily. Sometimes he is normal, but other times he will be angry and not want to talk. She is not sure “what version of Narinder I'm going to get anymore.”
Mr Noori is worried about his finances because he cannot return to full-time work and so Uber seems to be his only viable option. The problem with Uber is he must rent the car that he drives which eats into his income.
Ms Kour regularly supports Narinder financially just so he can get by.
When Ms Kour asks her brother how he is going at work, he says that he struggles. He can hardly work because he must go home early because of the pain in his back or urgently needing the bathroom.
Medical evidence
Dr Yuen, general surgeon who repaired the post operative bowel infection found fat necrosis and an abscess, which was for a while at risk of developing into fistulae.
Dr Andrew Keller’s report dated 1 September 2023, opined that the claimant has recovered the physical capacity to work up to eight hours a day, five days a week in a light or sedentary role. He opined it was reasonable that he had been limited to driving duties up to three days per week.
Dr Keller suggested that he could return to full-time driving over the next three months and is likely to continue to improve and may return to unrestricted work at some point within the next 6-12 months (i.e. by mid-2024).
Dr Phillip Truskett’s report dated 28 August 2023, opined that the claimant was totally unfit for work due predominantly to his back injury until two weeks before he assessed him when he commenced working as an Uber driver five hours per day three days per week on a graded return to work plan.
Dr Truskett opined that the claimant will be capable of returning to pre-injury duties and capacity within the ensuing three months and there should be no shortening of his working life.
Dr Neil Berry’s report dated 21 April 2023 opined that if Mr Noori’s abdominal injuries took the trajectory he predicted he expected they would not impair Mr Noori at work or in self-care.
He also said, “the claimant has had significant distortion of his abdomen with resection of the distal small bowel and then a right hemicolectomy.” He opines he had an anastomotic leak which could cause adhesions and bowel obstruction. Mr Noori has trouble eating a full meal and he has significant abdomen distortion with scarring.
Dr Berry expected Mr Noori would be asymptomatic within 12 months. There is no specialist report about his current bowel condition.
Dr Peter Giblin’s report dated 24 April 2023, opined the claimant remained fit for sedentary work subject to the ability to move around as needed;
"Specifically, I assess him as permanently unfit to use his low back for unrestricted and unrestrained heavy labouring work. He is unfit for constant heavy bending, lifting and twisting or prolonged and enforced periods of sitting or standing."
The orthopaedic specialist noted Mr Noori has mostly low back pain with intermittent shooting pains in the right leg. There is pain in both knees and the right shoulder girdle. He has to avoid squatting, pivoting or twisting. He may need future left knee surgery and a lumbar discectomy. His main form of treatment will be “self-imposed physical restrictions”.
Dr Giblin reported that although he is currently independent, but this could change as injuries deteriorate and his physical responsibilities are enlarged.
Neurosurgeon Dr Shanu Gambhir’s report dated 24 January 2023 reported the claimant did not need surgery but has lost height in L2 and L3 and has persistent right-sided low back pain with occasional thoracic pain.
Psychiatrist Dr Richa Rastogi’s 7 June 2023 report says: "He is permanently unfit to work as a delivery driver".
The accident has caused a major depressive disorder and post-traumatic stress disorder.
She saw him as anxious, reclusive, isolated and reactive. He has physical anxiety symptoms. He has lost confidence driving and interacting socially. He feels worthless. He has post-traumatic stress disorder nightmares and excessive fear. He loses sleep and has poor appetite with low motivation.
He lost interest in the sporting activities he enjoyed and postponed his marriage which strained that relationship.
The treating clinical notes are only up to April 2023 so they do not present Mr Noori’s current state of health.
Vocational assessment evidence
The Vocational Capacity Centre assessors opined the claimant could work fulltime within the sedentary and light classifications. Delivery driving involving lighter items was suitable along with other driving roles such as an Uber/ride share driver.
The most suitable vocational options were food technologist, delivery driver (light items only), select truck driver roles, taxi or rideshare driver, data entry operator, order clerk and select forklift driver roles.
The full time market rate for age group earnings in these roles ranged from $1,007 - $2,149 gross per week.
Healthmarq Extension Assessment’s report dated 26 June 2024 opined the claimant could work full time, albeit with limited lifting capacity from 25 June 2024 to 24 July 2024 for eight hours/day, five days/week.
There was no evidence developed to address loss of opportunities, such as the career trajectory he aspired to before the accident or how he might exercise his tertiary qualifications if he stayed in Australia. This evidence would have assisted me.
Economic loss evidence
A Certificate of Earnings dated 16 June 2022 submits before the accident Mr Noori was self-employed as a Woolworths online grocery delivery driver with gross weekly earnings between $1,100 and $1,400 per week.
Section 6.25 Particulars dated 3 April 2023 provided this work history:
(a)From 2021 to date of accident (exact dates not provided) Linfox employed him as a delivery driver working 40 to 50 hours per week earning approximately $1,200 to $1,500 per week.
(b)The delivery service Branski Kars Unit Trust’s records employed Mr Noori from 17 January 2022 to 11 May 2022 (date of accident) as a contractor delivery driver under his ABN in the South Coast. Weekly earnings were dependent upon his availability to provide delivery services and the number of shifts that he could perform each week. The trust contacted the claimant about returning to work but he never responded and was taken to have abandoned the role.
(c)Between 2020 to 2021 (exact dates not provided) he worked for Uber Eats, earning approximately $700 per week.
(d)Between December 2019 to approximately March 2020 he was a delivery driver at Australia Post, until he resigned. He earned approximately $1,000 per week.
(e)July 2018 to November 2019 he worked Tip Top Meats which he left due to visa issues. He was earning approximately $1,000 per week. His evidence was that that this role utilised his training as a food technology engineer.
(f)Tip Top Meats records confirmed the claimant was employed as a casual employee from 2 November 2018 to 3 November 2019 earning $942 gross weekly.
(g)The claimant’s answers to the request for particulars allege he was earning no less than $1,500 gross weekly pre-accident.
The insurer submits the financial records for the financial years ending 2019 - 2022 confirm pre-accident earnings as follows:
Financial year ending
Income
2024
Not provided
2023
Not provided
2022
taxable income – $35,473
delivery driving income $58,496 less total expenses $25,583
2021
claimant did not submit a tax return in 2021 because he was in Melbourne during the Covid lockdowns
2020
meat boner and slicer at Tip Top Butchers earning $14,085 gross
self-employed gross payments $8266
2019
taxable income $32,668 income from Tip Top Butchers $32,091 gross
Absolute Hospitality $930
The claimant’s Commonwealth Bank statements between 31 December 2021 and
14 June 2022 show regular payments described as wages that vary between $752.12 and $1,960.39. This is consistent with the claimant subcontracting while he was delivering on the south coast.The insurer’s forensic accountant PKF assessed the claimant’s pre-accident average weekly earnings (PAWE) at $646.37 gross per week, in line with the claimant’s 2022 tax return. The insurer assessed this as $58,968 in the 52 weeks before the accident.
The claimant returned to work in October 2023 in Sydney’s west as an Uber driver. He has since relocated to Maitland/Newcastle where Uber work is less remunerated, but this was due to his visa conditions.
iPrana Health Consulting report dated 28 November 2023 records he was working 24 hours per week across three to four days. He works three to four hours in the morning, rests and then works a further two to three hours in the afternoon. He earned between $500 – $600 gross per week.
The claimant’s schedule of damages submits he was earning $550 net per week based on the hours above.
The claimant provided additional evidence after the assessment regarding the claimant’s earnings as a driver including Uber website screenshots of earnings, his statement on the expenses he incurs to operate his Uber car and his visa status. These were relevant to resolving the facts in issue and were considered in formulating my reasons.
It appears that although Mr Noori says he was earning $550 net per week for Uber, he was actually referring to gross profit after expenses were deducted. That amount would still need to be taxed. I note that the figure is continually referred to as net, but I intend to treat that as the gross amount.
SUBMISSIONS
Credit
During questioning at the assessment, the insurer’s counsel put it to Mr Noori he was exaggerating how often he needed to go to the toilet because of his injuries. That was the first time the insurer referred to Mr Noori’s credit.
The insurer’s counsel also submitted to that the claimant had presented at medico-legal and vocational assessments presenting his accident related conditions as manageable, while his statement, the lay witness statements and oral evidence paint a grimmer picture. The insurer submits that this goes against the claimant portraying himself as consistent.
I recollect the insurer submits I cannot accept his evidence on some of the facts in issue, particularly earnings unless there is documentary corroboration. On that reasoning the PKF report is the best evidence of his earning capacity before the accident.
Non-economic loss
There is no relevant evidence about any pre-accident conditions.
The claimant submits he suffered frank injuries in the accident, which have led to chronic psychological and physical conditions, which led to further medical intervention and serious, life-changing disabilities.
The insurer claims that Mr Noori’s has been able to return to work and made a good recovery.
Past economic loss
The claimant relies on the summaries of the evidence from the claimant and other witnesses above.
The claimant claims $1,500 net for 72 weeks at $105,000.
The insurer says Mr Noori’s loss was $646.37 gross ($578 net) per week based on the PAWE calculation.
From 1 October 2023 to 30 December 2023 the claimant alleged he was earning between around $550 net per week for 19 to 24 hours. He could have earned double that if he were fit to work a full week.
He says he is losing around $550 net per week. This is continuing. The claimant claims $950 per week being the balance of what he says were his actual past earnings.
The insurer submits after applying deductions for expenses the claimant’s total weekly net earnings would still not exceed $1,000 net per week.
The insurer concedes the claimant had some loss during this period but not the figure claimed.
From December 2023 to 25 June 2024 the insurer says there is nothing suggesting the claimant’s capacity reduced and it is reasonable to assume the claimant’s condition would improve during this time and his capacity increase.
From 25 June 2024 to the date of resolution the claimants says he is continuing to lose $950 per week.
The insurer says there is no loss, although it agrees the claimant cannot work in roles where there is medium to heavy manual handling.
The insurer says the claimant did not provide sufficient material to support his past economic loss or his current earnings. The claimant has failed to discharge his onus, particularly when at the time it made those submissions the claimant had not produced evidence of his Uber earnings from the Uber app.
The insurer submits the claimant’s alleged current earnings at $550 per week do not differ greatly from what the PKF report said he was earning before the accident.
The insurer submits I could allow a past buffer at $48,000.
The claimant seeks an award of superannuation at 11% of the past economic loss, although he was not paying himself superannuation at the time he was injured.
Future economic loss
The claim for future economic loss as per the schedule of damages dated 21 August 2024 was in the sum of $1,139,340 being a complete loss of earning capacity.
The claim is made at a rate of $1,750 per week.
The insurer submits this exceeds what the claimant’s earnings would be working full time before the accident even considering inflation and ‘promotional opportunities’ which the insurer submits would be limited for his chosen pre-accident vocations.
The medical evidence agrees that he has capacity for full time employment in sedentary roles including driving where heavy lifting is not required.
The unanimous medical evidence agrees Mr Noori cannot return to any roles which require heavy lifting but the insurer submits that the claimant retains a significant residual earning capacity for alternative duties.
The insurer’s VCC report suggested potential for securing suitable roles in his local labour market with expected earnings (for full time work) in the range $1,007 - $2,149 gross per week.
The insurer submits there is an abundance of driving type roles he could take up in various sectors which would not require him to lift beyond 12kg. As noted above there is nothing to suggest that he is not currently or cannot earn above and over what he was earning as a deliver driver. The insurer recommended a buffer of $100,000.
REASONS
Credit
Mr Wilson asked me to decide whether to accept Mr Noori was reliable in giving evidence. He alleged in his questioning in the assessment that the claimant was exaggerating the impact of his bowel condition on his earning capacity.
I have scrutinised Mr Noori’s evidence. I noted the accounts of his interactions with treating and medico-legal doctors, his evidence in his statement and Mr Wilson’s questioning during the assessment. He tended to under report rather than explain how bad his condition was. This may have been led by his lack of confidence in English, his modesty about personal matters and possibly his low mood states, which Dr Rastogi and the vocational assessors noted.
The insurer also questioned the claimant about what he told the Commonwealth Department of Home Affairs about his health when he applied for his visa to remain in Australia.
The insurer obtained the relevant Health Case with that information and uploaded it on 9 April 2025 to the Commission’s portal annexed to an application to admit additional documents. Seeing it was raised in the assessment it was relevant to resolving the facts in issue. The claimant objected to it being considered.
I note that it refers to a medical examination on 21 April 2023. The conclusion is that the claimant’s health for the purpose of the visa application is A grade. I also note that it also includes some details based on a report of this accident. Largely it confirms the claimant’s case, although it is more optimistic than what he told me as he says that he has nil significant impairment at that time. He does not tell the Home Affairs doctors he has limited lifting capacity, while the medical experts agree that is the case
That being said, what the Health case discloses does not makes a material difference to my conclusions expressed in this decision, especially regarding his future economic loss, that he has a significant residual earning capacity.
The Victorian Court of Appeal 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 reasonable in this case to hypothesise that a lack of reliability or inconsistency could have been influenced by Mr Noori’s psychological and mood conditions from before and after the accident rather than an attempt to mislead or in the visa context to ensure he can live in Australia.
Courts and tribunals must contemplate that the circumstances of disclosures, moods, mental illness and time passing can and will impact on a witness recounting what has occurred or is occurring.
The lay evidence is helpful, because it is based on longer multiple observations than the usually no more than a one hour medical examination. Unless a claimant has the habit of keeping a daily and frank journal, lay witnesses with regular interactions with a claimant are often among the most relevant evidence to resolving facts of issue on an accident’s impact.
I have considered the medical evidence that is bullish about Mr Noori’s return to work and given it weight, but the lay evidence refers to how Mr Noori has been since those opinions were expressed.
I found Mr Noori was doing his best to be truthful and consistent in his evidence, which allows me to accept the impact he describes.
Damages
Non-economic loss
The fundamental principle of assessing or awarding damages to an injured person is that a tribunal should assess damages so that they represent no more and no less than a plaintiff’s actual loss: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, Lord Blackburn at [39].
In personal injury matters, because it is difficult, if not impossible, to restore an injured person to the health they enjoyed before the injury, the compensatory principle has been qualified for non-economic loss damages by the phrase “so far as money can 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 cannot be perfect because it cannot be calculated precisely like other forms of damages.[1]
[1] Lee Transport Co Ltd v Watson (1940) 64 CLR 1 at [13]– [14], Dixon J.
The NSW Judicial Commission’s bench book on damages, which summarises the authorities on compensation for non–economic loss[2] and Luntz.[3] are helpful in assessing these damages.
[2] Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis.
There is a statutory cap of $645,000 that limits the amount of non-economic loss damages. However, a tribunal cannot calculate the entitlement based on a percentage of that maximum amount, and there is no proportionality.[4]
[4] Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 – as per Heydon JA at [39].
Mr Noori submitted the appropriate assessment is $600,000, and the insurer submitted $200,000.
There has been 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. His sister says his personality has changed for the worse.
He suffers the anxiety of not feeling in control of his bowels, including being excessively vigilant about toilet locations and urgency. He has lost enjoyment in eating.
He also appeared embarrassed when I asked him if he could clean himself properly when he urgently uses the toilet. He assured me he could. However, to have one’s bowel movements and enjoyment of food altered dramatically, possibly permanently must be accounted for in assessing loss of amenity or enjoyment of life.
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 Noori will find it hard to mitigate his daytime condition and exercise residual work capacity if he cannot achieve optimal sleep.
Almost three years have passed since the accident. The accident injured Mr Noori in frightening and painful circumstances. Since then, he has experienced nightmares and flashbacks coupled with often severe physical pain.
Relevantly to loss of amenities, Iprana recorded in the earning capacity assessment report dated 28 November 2023 that before the accident:
“I had a normal social life, friends, I loved working and talking with others.’ He described spending time with friends, working full time and planning his future. However, he stated since the injury his mood is low, he has no confidence, he avoids talking with others and prefers to be alone. He stated he used to live independently but had to move in with his sister for emotional and physical support following the injury.
Mr Noori reported he does not believe he would be able to live alone anymore due to his physical and psychological injuries; he reported he would be unable to complete household chores due to his physical restrictions and his mood would be extremely low due to a lack of social interaction. Mr Noori stated he speaks with friends via the phone and is trying to increase his social interactions as he knows it is beneficial for his mental health…When questioned during the assessment regarding his future goals and plans for recovery Mr Noori stated he will continue to work as an Uber Driver and engage in psychological therapy. He reported his goals are to increase his social interactions; however, he reported feeling uncertain about his future stating he felt powerless and ‘lost’.”
This was confirmed in his oral evidence and the lay witnesses backed him. The insurer’s counsel referred to how he was able to recover enough to marry and earlier presentations to medico-legal specialists and vocational assessors, but that had been a long time arrangement. His evidence did not refer to how happy he and his wife are now.
All the medical evidence agrees that he must stick to mostly sedentary work and avoid lifting beyond 5kg.
However, he is able to avoid taking pain or psychotropic medication and has not sought counselling and therapy. It appears he is managing, as far he can, his pain and anxiety with frequent rests, relying on help from others and reduced activity.
He was careful to avoid saying anything about diminished intimacy with his partner due to his back pain and stress levels when I pressed him about why his honeymoon was not enjoyable. He appeared embarrassed about that, but it is a matter of common knowledge that continuing lumbar spine pain and depression derogates from a happy intimate connection.
Reading the lay witness statements, it was obvious before the accident that people thought of Mr Noori as energetic and generous with his presence. He had reasons to be optimistic before his accident, but now he is tired, in pain, sleep deprived, experiences bowel urgency, withdrawn, anxious and pessimistic.
Mr Noori cannot claim now that these injuries would shorten his life. However, the circumstances where he was rushed to hospital to repair his ruptured intestine; another bout of emergency surgery to cut out the infected colon; and further infection were frightening. He was in mortal danger in those circumstances.
Disfigurement is relevant to Mr Noori’s case. Regarding the scarring, medical reports describe a long non-herniated and non-tender midline stomach scar on his stomach. He experiences mild tenderness in the lower left abdomen. He suffers flashbacks when he sees the scar, which would be when he dresses and undresses. He has a significantly distorted abdomen.
He has facial scarring, which is reported as minor but he wears a beard to cover it.
Examining the evidence summarised above, this is a case where all aspects of non-economic loss.
I note that the doctors were optimistic in varying degrees that Mr Noori could make a full recovery from all his conditions except the lumbar spine pain.
From the lay evidence it appears that despite medical optimism in 2023 about complete recovery, that Mr Noori’s lumbar spine and bowel urgency conditions are chronic. He can expect on the medium life tables to live another 54 years with this accident’s after-effects.
I assess the appropriate past and future damages for the claimant at $387,000 for his non-economic loss.
Past economic loss
In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined in a case such as this, is whether a claimant has sustained a loss or diminution in his earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard the provisions of s 4.7 of the MAI Act.
Summarising a key principal explained in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (Cervantes) calculating past and future economic loss involves comparing a claimant’s accident related circumstances, and the likely circumstances if the accident had not happened. Where there is loss of earning capacity, a tribunal must consider whether such a loss still might have occurred “independently of the accident.” [33]
Before the accident Mr Noori was unrestricted in his earning capacity, except he was obliged to comply with visa terms, which required him to work in regional NSW. The evidence showed he was a consistent worker and earner.
I find it was most likely that Mr Noori would have continued to work as a delivery driver at least until his visa status had changed to a resident, when he would be free to work wherever he wished in Australia. It was also possible that he may have been able to find regional work that matched his tertiary qualification. It is clear that he intended to keep working and earning money as long as he was able to.
I find the accident intervened to cause Mr Noori to have totally lost his earning capacity immediately after the accident for 72 weeks from the date of accident until 1 October 2023.
Mr Noori has been unable to return to his pre-accident work regime. His evidence is he is restricted to usually working no more than 20 hours per week since then. There are medical certificates, which attest he could work full time in a suitable position, but his statement and oral evidence show his injuries still reduce his capacity for full time work.
He has told people he has stressful financial problems plus a wife who moved from India to support so he has strong incentives to work full time. He also has an established positive work ethic. For those reasons, I accept that but for the injuries suffered in this accident Mr Noori would return to full time work if he could. The only other reason that he may have suffered reduced income independent of the accident would be returning to India where wages are much lower than Australia.
Mr Wilson questioned Mr Noori about that. Mr Noori said he intended to stay. His wife moving to Australia and his pursuit of additional visas supports that.
The claimant did not provide financial records showing his loss from the date of accident but claimed a global figure of $1,500 net per week.
This amount appears based on the answer to the insurer's request for particulars answered on 31 March 2023 that from 2021 to the date of accident (exact dates were not provided) that Linfox employed him as a delivery driver. He says that was when he earned $1,200-$1,500 per week working 40 to 50 hours. Against that are references to him being a sub-contractor rather than an employee.
The insurer’s evidence and submissions are that he could be working full time in suitable work.
The insurer relies on the PKF PAWE calculation as the basis to assess the claimant's loss from the date of accident until 1 October 2023. The forensic accountant's report relies on evidence of contractor income against evidence of expenditure. The claimant applied for review of statutory payments because he alleged that calculation did not reflect his true earnings.
This is a frequent issue in the MAI Act statutory payments scheme. The usual method of relying on tax returns or wage records does not take account for employers making it clear that continuing employment is dependent on a current employee agreeing to set himself or herself up as a sole trader contracting to the employer, so that business can avoid paying administrative costs and workers’ superannuation.
Effectively, these people remain employees because they must following company directives, wear uniforms and work only when the head contractor dictates.
The employer encourages employees/contractors by highlighting they have the opportunity to claim some personal expenses as business-related to avoid tax. However, because these sub-contractors usually earn small amounts the benefits are negligible or do not exist.
Mr Noori, as the recipient of a conditional visa may not have seen himself as having any choice, but his evidence did not address that.
I noted Doussa J’s reasons in Giorginis[5] about how a party is bound by its documentary evidence and that such a discrepancy (such as not declaring income) reflected on a plaintiff’s credit so that the evidence needed to be scrutinised with special care.
[5] Giorginis v Kastrati (1988) 49 SASR 371, [375]-[376], per von Doussa J.
On that basis the PKF report would seem the best evidence of the claimant's loss up to the time he returns to work on 1 October 2023 because it is based on documents. However, because his employer moved him into contracting, it does not reflect his actual loss of earning capacity.
McColl JA in Morvatjou v Moradkhani [2013] NSWCA 157 (Morvatjou) emphasised that while documentary evidence of actual income was the most helpful guide to assess loss of earning capacity, she also said lacking documentation did not necessarily disqualify a plaintiff from recovering damages based on evidence of actual earning capacity.
Although the lack of consistent earnings records before the accident makes this exercise less certain, I accept Mr Noori is doing his best to be accurate when he expresses what his earning capacity was before the accident. He worked a full time load and the average weekly earnings of an employed driver are more reflective of his earning capacity than his contractor earnings.
I agree with the claimant’s submissions that it is reasonable to adopt the average full-time earnings for delivery drivers at $1,184 per week gross to reflect the true loss of earning capacity from the date of accident.
Using the relevant tax calculator for 23-24 the tax withheld from $1,184 is $201 leaving $959.
Accordingly, the loss of earning capacity from the date of the accident until 1 October 2023 would be 72 weeks x $959 net = $69,048.
The loss of earning capacity is continuing since he returned to part time work. I accept his earnings are approximately $550 gross per week.
Subtracting that from $1,184 gross per week for the first 40 weeks after he returned to work the gross weekly loss is $634, which is approximately 0.54 of $1,184. 0.54 x $959 net = $518 rounded up. Multiplied by 40 weeks = $20,720.
The Vocational Capacity Centre Labour Market Analysis Report says it’s search on
6 July 2024 showed the average full time earnings for delivery drivers had increased to $1,376 per week. It’s appropriate to use that figure to assess Mr Noori’s continuing loss from that point. The average full times earnings on that basis is $1,112 net.For the next 39 weeks from 6 July 2024 up to 4 April 2025 the gross weekly loss is $826. $826/$1,376 = approximately 0.6. 0.6 x $1,112 net per week = $667 net per week loss. $667 x 39 weeks = $26,013.
I also find there was a chance that if the claimant continued to work as a delivery driver, he would have been paid superannuation if he had been able to switch employers. He is entitled to be compensated for the loss of that chance as a buffer at $5,000.
That totals $120,781 for past loss. Less statutory payments of $86,305.72 is $29,475.28.
The insurer submits that the s 4.5(1)(d) MAI Act damages are $20,140.
Future economic loss
Due to his accident-related injuries' physical and psychological impacts Mr Noori claims he cannot exercise his ambition to work as he hoped.
It is most likely that he has and will suffer future economic loss due to his injuries, because even at the best he has done since the accident he is yet to return to full earning capacity despite having strong incentives.
The evidence supports finding that if the claimant had not been in this accident that he would have had the opportunity to seek better work, but his injuries and disabilities mean that he is currently stuck in work like taxi or Uber driving. As an incontinent, back pain suffering, depressed and traumatised driver he is less competitive with other drivers.
He has reduced capacity to compete on the open labour market. There is a possibility he could not rise above driving work if he remains poorly motivated due to his depression with the physical sequelae of his bowel and lumbar spine conditions.
The medical evidence regarding the loss of heavy lifting capacity, the corroborated ongoing bowel and lumbar spine problems with continuing psychological impairment supports the claim for the diminution of earnings continuing.
Residual earning capacity
Mr Noori had to prove his economic loss; see Todorovic v Waller (1981) 150 CLR 402 at [412]-[413]. However, once he established that loss, it is for the insurer to prove that Mr Noori has a residual earning capacity and provide evidence of what he can do and what jobs are open to him.[6]
[6] Luntz, Assessment of Damages for Personal Injury and Death (5th ed) at 241 [1.11.26].
The insurer must show that a claimant has a residual earning capacity that he is practically capable (rather than theoretically capable) of exercising. A tribunal must make a practical assessment of the likelihood of Mr Noori obtaining and keeping a real job, which is accessible to him, considering his pain, restriction, and impairment: see Mead v Kerney [2012] NSWCA 215 and South Western Sydney Local Health District v Sorbello [2017] NSWCA 201.
The vocational assessment reports identified career paths in sales, supervision, and clerical roles. I agree with the insurer that Mr Noori has skills he could apply in other fields.
Against that is medical agreement that Mr Noori has a limited work heavy lifting capacity. He only has a capacity for light work. I must assess whether he will eventually have capacity for full time work.
The insurer has not provided evidence that deals with the following:
(a) how Mr Noori would deal with seeking concessions from potential employers to make up for his functional and psychological disabilities;
(b) the submissions and report do not deal with how he would manage his functional and psychological conditions if his work required him to go outside the restrictions that all the doctors agree he would need. Also, nothing addresses how he would retain full-time employment if he inflamed those conditions, and
(c) there are no strategies that address how Mr Noori would fare when competing with non-disabled applicants in the open labour market for full-time work.
I am not satisfied that the insurer has discharged the onus that Mr Noori could be immediately employable on a sustained basis as he hoped because:
(a) the broad consensus of medical and lay evidence supports the claim that the accident has left Mr Noori psychologically and physically impaired and that each impact on the other;
(b) the continuing pain wears down Mr Noori emotionally and reduces his capacity to deal with potential employers, colleagues and customers. This will impair his capacity to market himself, which requires the ability to travel to meet and market to potential employers;
(c) potential employers, would need to make allowances for him, including additional time off work, seating him near toilets, his irritability, reduced confidence, and limited capacity to perform physical tasks;
(d) his ability to work full-time consistently relies on Mr Noori's psychiatric and physical conditions aligning enough so that he feels well enough to apply himself to his tasks, and
(e) suitable full time work would have to be available. Mr Noori would still be limited because his capacity to accept work would depend on appropriate work being available and being well enough to get that work.
I am satisfied though that there is a chance that Mr Noori could find suitable full-time work over the next 36 years because:
(a) Mr Noori has demonstrated he has a good work ethic;
(b) he has in demand skills and training;
(c) he has extrinsic motivation;
(d) he has shown resilience and a can-do attitude in terms of seeking rehabilitation despite the physical pain, and
(e) in time his psychological condition may ease when suitable jobs may be available. The longevity of any role would depend on whether he aggravated any of his conditions.
I am satisfied that these are favourable vicissitudes that mitigate his accident-related disabilities.
Loss of opportunity
This was not developed in the claimant’s case apart from a loss of promotional opportunities being asserted in the claimant’s damages schedule. If his statement or vocational assessments referred to how the accident frustrated hopes to work as a food technology engineer in Australia, that could have been accepted.
It could be accepted on the basis of being common knowledge that the physical and psychological injuries related to the accident would materially contribute to reducing his chances to exercise opportunities to make the most of his tertiary education.
I do not give this aspect weight though, other than what the claimant asserted.
Buffer
The claimant wants me to compensate him for the remainder of his working life with a sum based on $28,000 per year as a continuing loss plus a buffer for the loss of opportunity and incalculable adverse consequences of the accident.
The claimant’s current circumstances are that he is losing $667 net per week based on my calculation above.
It would be reasonable to allow this for three years, because that gives an opportunity for
Mr Noori’s psychological condition to mitigate. This may eventually mitigate due to time passing and treatment or because he is a driver, he could suffer another accident which will overlay or aggravate his current condition. This is a relevant factor as long as he remains a professional driver.Applying the multiplier for three years being 145.6 x $667 = $97,115. I will not discount this because the period it covers is not sufficient for vicissitudes to arise.
Dimitra Dubrow and Gabrielle Feery's article from the Law Institute of Victoria journal[7] on page 88 of the November 2014 edition assists me in summarising the basic principles for evaluation of a claim for future economic loss being compensated with a cushion as the High Court enunciated in Malec v JC Hutton Pty Ltd (Malec) held in assessing damages, the likelihood of future hypothetical events is to be considered.
[7] Doing the sums: Economic loss claims under the Wrongs Act, November 2014 88 (11) LIJ, p.48.
The authors quote Justices Deane, Gaudron and McHugh reasons:
“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring . . . Where proof is necessarily unobtainable, it would be unfair to treat as certain a predication which has a 51 per cent probability of occurring but to ignore altogether a predication which has a 49 per cent probability of occurring. Thus, the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.”
The article advises a tribunal must assess a claimant's future earning capacity based on all probabilities, including other injuries or illness, business failures, commercial shocks such as recessions, promotion, growth, moving to other job markets or alternative employment.
The back pain is permanent, and possibly the faecal urgency. The psychological injuries are indefinite, but I allowed that these could mitigate with time and appropriate treatment.
The impact on his loss of earning capacity is not capable being precisely calculated, despite being confident his accident related injuries will continue to impact his earning capacity.
A cushion is appropriate, because it reflects the uncertainty of the accident’s future impact. As discussed under the residual earning capacity heading, Mr Noori has to deal with overcoming prejudice in the open labour market and negotiating to obtain sustainable conditions so he can remain employed full time.
The chances his accident related conditions will continue to operate adversely against him periodically or continuously is significant, but it cannot be precisely calculated.
The insurer also raised the possibility he may return to India where salaries and wages are much lower. This adds another element of uncertainty which favours the insurer, but marginally as Mr Noori is attempting to obtain permanent residence.
If Mr Noori’s application to remain in Australia was unsuccessful due to being rejected for his accident related injuries, that could also sound in damages against the insurer. Mr Noori’s back will always be a source of discomfort, which will wax or wane wherever he lives. With the right treatment the bowel problems may not be as long lived, but it is still a long term factor.
Following Cervantes, Malec[8] and State of NSW v Moss,[9] I assess a buffer to reflect the continuing loss of earning capacity from his spine injury, the faecal urgency and his psychological conditions, which will cause him not to function in the workplace as well as he could have before the accident and suffer general prejudice on the open labour market resulting in a loss of earnings.
[8] (1990) 169 CLR.
[9] (2000) 54 NSWLR 536.
I allow $230,000 for the buffer including potential superannuation.
I assess the total future economic loss at $327,115.
Section 7.36 (1) (b) of the MAI Act requires me to assess the damages for that liability that a court could award.
I assess the damages for this claim based on the above findings:
| Non-economic loss | $387,000 |
| Past loss of earnings | $115,781 |
| Past superannuation | $5,000 |
| Income tax on statutory benefits | $20,140 |
| Future loss of earning capacity | $327,115 |
Total Damages Assessed: | $855,036 |
The claimant’s economic losses are to be reduced by $86,305.72 and the insurer is to have credit for statutory payments pursuant to s 3.40 of the MAI Act. This will also reflect in the costs assessment.
The adjusted damages are $768,728.28.
Costs and disbursements
I refer to the claimant’s schedule of disbursements. I have assessed the claimant’s costs and disbursements in accordance with the attached damages and costs calculator.
The costs calculated based on the MAI Regulation 2017 on the above amount of damages plus disbursements claimed is $60,772.80.
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