Pham v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pham v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 320
CLAIMANT:	Wyn Pham
INSURER:	Insurance Australia Limited trading as NRMA Insurance
MEMBER:	Susan McTegg
DATE OF DECISION:	23 June 2022
CATCHWORDS:	MOTOR ACCIDENTS - Claim for damages; Motor Accident Injuries Act 2017; Claimant pillion passenger who fell off back of motorbike; dispute as to whether Claimant fell because she let go to wave; or because the rider changed gears and bike jolted; fracture of proximal femoral shaft, soft tissue injuries to knees, spine and right hip; significant abrasions resulting in significant scarring; post-traumatic stress disorder; pre-existing persistent depressive disorder’ or ‘dysthymic disorder’; questions as to reliability of Claimant’s evidence; Held – rider changed gears; bike jolted as Claimant simultaneously removed right hand from rider’s waist to waive; apportionment as per Podrebersek v Australian Iron and Steel; contributory negligence assessed at 15%; Claimant gave testimony honestly; Claimant purported to disclose pre-existing psychological condition; non-economic loss assessed at $300,000; past economic loss assessed on basis incapacitated for work since accident; future loss of earnings assessed on basis totally unfit for 2 years and thereafter based on capacity to work 15 hours per week; total damages assess after reduction for contributory negligence of 15% in sum of $889,609.88; costs assessed
DETERMINATIONS MADE:	Certificate Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of Claim for Damages made in accordance with s 7.36 of the Act 1. On the issue of liability for the claim, the NRMA’s insured 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. The claimant’s damages to be reduced for contributory negligence assessed at 15%. 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 $889,609.88 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $67,341.45 inclusive of GST.

Reasons for Decision

Issued under s 7.36(1) of the Motor Accident Injuries Act2017

INTRODUCTION

Wyn Pham (the claimant) sustained injury in a motor vehicle accident on 10 March 2018 (the accident). The claimant was a pillion passenger on a motor bike ridden by Paul Norris when the bike accelerated, and she fell off. In dispute is whether the claimant removed either or both hands from around the waist of Mr Norris to wave goodbye at the same time as the bike accelerated contributing to her fall and subsequent injury.
I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act, 2017 (the MAI Act) in respect of the injury sustained by the claimant.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
Ms Pham sustained the following injuries in the accident:
·        fracture of the right proximal femoral shaft;
·        right knee meniscal tear;
·        injury to the lumbar spine;
·        injury to the cervical spine;
·        injury to the left knee;
·        abrasions to the right arm, both thighs and the right knee;
·        scarring; and
·        psychological injury.
The Insurer has admitted breach of duty of care but alleges contributory negligence of 30%.
The claim was listed for assessment on 26 May 2022. Ms Pham was represented by Mr John Keesing of counsel instructed by Mr Khanh Ton of Ton Legal. The insurer was represented by Mr John Guihot of counsel instructed by Ms Katherine Teague of Hall & Wilcox Lawyers. Ms Elizabeth Matthews and Mr Emran Ahmed from the insurer were also present. Ms Phan attended and Mr Paul Norris gave evidence by telephone.
At the outset of the assessment conference Mr Guihot objected to reliance upon the report of Dr Leonard Lee because he was not an authorised practitioner for the purposes of the MAI Act. I agree the report is inadmissible having regard to s 7.52 of the MAI Act.
Mr Keesing confirmed he did not intend to rely upon the statement of Mr Khanh Ton dated 14 April 2022.
The issues in dispute are the following:
·        whether there should be any reduction for contributory negligence;
·        the reliability of the claimant’s evidence, and
·        the extent to which the accident has resulted in an impairment of the claimant’s earning capacity.
I am asked to assess damages in respect of the following:
·        non-economic loss;
·        past economic loss, and
·        future economic loss.

TRANSITION OF EXISTING DISPUTES TO THE PERSONAL INJURY COMMISSION (the Commission)

The Commission commenced operation on 1 March 2021. The former Dispute Resolution Service was abolished by cl 3 of Division 2 of Part 2 of Schedule 1 to the Personal Injury Commission Act2020, (the PIC Act). The PIC Act and Regulation establishing the Commission provide that a new decision-maker may determine pre-existing disputes in accordance with the previously applying legislation.
Clause 14B(4)(c) of Schedule 1 of the Personal Injury Commission Regulation 2020 provides that the provisions of any Act, statutory rule or other law that would have applied to determine the proceedings, had the PIC Act not been enacted, continue to apply.

TELECONFERENCE ON 16 JUNE 2022

Benestar records

A Direction for Production had been served upon Benestar Group Pty Ltd (Benestar). In response to that Direction a letter had been sent to Michael Dent of Hall & Wilcox dated 24 May 2022 providing dates of counselling sessions purportedly attended by the claimant. At the outset of the assessment conference Mr Guihot provided an email from Benestar Group dated 25 May 2021 stating the letter dated 24 May 2022 was sent in error. Accompanying that email was a letter from Benestar seeking additional details so they could conduct a search of their records.
At the conclusion of the assessment conference Mr Guihot asked if the insurer could rely upon further records which may be produced by Benestar. I indicated I would only allow the insurer to rely on any further records to be produced by Benestar if they had the consent of the claimant. I noted the insurer did not object to the matter proceeding to assessment notwithstanding the failure of Benestar to produce records. Even though the records were sought under a Direction for Production I stated reliance upon such records may be prejudicial to the claimant where her evidence had been completed and where she would not have an opportunity to comment on those records.
Benestar produced further records in response to the Direction for Production on 31 May 2022. Those records detail counselling sessions on 3 June 2015, 3 July 2015, 23 July 2015, 10 December 2015, 18 December 2015 and 15 January 2016. The claimant did not consent to those records being admitted in these proceedings.
The insurer pressed for the inclusion of the Benestar records. The insurer submitted the Benestar records showed prior to the accident the claimant’s employer referred her for psychological counselling. She was suffering depression and anxiety, had engaged in self-harm and as a result had taken large periods of time off work prior to the accident. Further, the insurer submitted the records were produced in response to a Direction issued by the Commission and the delay in receiving the records was in no way related to the conduct of the insurer. The insurer argued that failure to include the records will result in a breach of procedural fairness.
I listed the matter for a teleconference on 17 June 2022 noting as follows:
“Noting the significance of these records I am concerned that if I was to maintain the position, I took at the assessment conference it would arguably be a denial of procedural fairness and may result in further litigation. To ensure the proceedings are brought to finality with no suggestion of procedural unfairness to either party I propose to list the matter for a teleconference so we can discuss how to proceed. If the records were admitted I would, of course, give the claimant an opportunity to respond by providing additional evidence and/or submissions to address this additional evidence and if necessary, I would be prepared to re-open the assessment.”
Mr Keesing of counsel instructed by Mr Ton represented the interests of the claimant at the teleconference and Mr Dent represented the interests of the insurer.
The claimant consented to the inclusion of the Benestar records on the basis no further evidence was relied upon by the insurer. The insurer agreed.

Economic loss

I was informed the claimant agreed with the insurer’s submissions as to the Fox v Wood [1981] HCA 41 component.
I was also informed the claimant and the insurer agreed that past economic loss calculated to the date of hearing, 26 May 2022 is the sum of $224,625.
On the basis past economic loss was calculated at $224,625 the parties agreed the figure for past loss of superannuation benefits as of 26 May 2022 was the sum of $25,081 although I note that calculation was made after deducting the sum of $6,524 from the allowance for past economic loss. However, the claimant did not agree it was appropriate to reduce the sum of $224,625 by the sum of $6,524 being income received by the claimant from Transport for NSW since the accident. I will address this issue further.
Noting the claimant wished to receive ongoing payment of statutory benefits up until the date of assessment I indicated I would update the calculation of past economic loss to the date of the certificate.
On that basis it was also agreed I could issue final Reasons for Decision with a notation that the insurer is entitled to credit for statutory weekly payments made to the claimant.

LIABILITY

Ambulance report

In the ambulance dispatch report the claimant was described as not “completely alert (not responding appropriately)”.
The case description states:
“Pt states having consumed 4 x ETOH beverages and thereafter having been pillion passenger of MC and having fallen backwards of MC when waving goodbye of friends at same time as MC accelerated away. Pt states having been wearing a backpack at time of fall. Pt recalls event and states having slid along roadway for approx. 2.3 secs”.

Police record

Leading Senior Constable Dawson interviewed the claimant at her home on 18 March 2018. He recorded a version in his police notebook which was signed by the claimant:
“Paul and I were at a friend’s house for dinner and a few drinks. About 9.15 pm Paul and I were leaving the house. I was sitting behind Paul as we rode slowly down the driveway. I was holding onto Paul’s waist when he rode slowly up the street and did a you turn. Paul drove/rode slowly down the street when I let go at his waist to wave good bye to our friends. As I did this I lost my balance and with the weight of my back pack fell backwards onto the road. I don’t remember much more as I was dazed”.
When asked “what do you think happened” the claimant replied:
“I lost my balance when I let go of Paul’s waist”.
The claimant also stated:
“The bike was already moving at the time I raised my hand and as Paul drove the bike jolted forward and as a result I fell backwards”.

Application for personal injury benefits

The Application for personal injury benefits was completed by the claimant on 27 March 2018.
In her own handwriting the claimant recorded:
“We were leaving friends place after dinner & drink around 9 - 9.15 pm. I was passenger on motorbike we rode off the driveway & went left. Then the driver u-turned to go the other direction. I was holding on but as we passed my friend’s house (motor bike is still at a moving pace) I waved bye as we passed the house & at the exact time not aware that the driver changed gear? or speed? to ride off. I was not advised or the driver did not indicate me that he was going to increase the speed. I fell & went flying of the bike.”
Also attached to the application form was a diagram which marks the spot where the claimant fell of the bike. It is three houses away from the house of her friend Vicki Jenkins.

Leading Senior Constable Dawson record of interview

Leading Senior Constable Dawson participated in a record of interview with Shane Darlington of AHC Investigations on 23 July 2018. He noted when he arrived at the scene of the accident the claimant was on the roadway being treated by ambulance officers. He described her as being “still on the Morphine whistle from the ambos”.
As to whether the claimant was laying outside 10 McIlvenie Street, Canley Heights, Leading Senior Constable Dawson said,
“If it wasn’t directly outside it was within a few houses of”.

Wyn Pham statement dated 25 May 2018

The claimant provided a statement to Shane Darlington on 25 May 2018. She stated inter alia:
“17.   The motorcycle was parked out the front of our friend’s house. Paul needed to go in the opposite direction of where the bike was facing so he needed to do a u-turn. We rode up the street past a few houses and completed a u-turn.
18.    Prior to going past my friend’s house at number 10, we were only rolling and travelling about 5 km/h. At this time, I was going to wave goodbye to my friends again but my hands were still around Paul’s waist. Suddenly the bike accelerated and I lost my grip around Paul’s waist. At the time I was holding onto Paul and not the bike.
19.    As a result, I lost my hold of Paul and was thrown to the road. I don’t know the speed he was going prior to me falling off.
20.    I was wearing a helmet at the time and so to was Paul. I was wearing jeans, a singlet and enclosed shoes and a backpack.
21.    I landed on the road with my helmet hitting the road hard. I am not sure if I lost consciousness at the time of the accident but I do not have any memory of the details of the accident.
22.    My friends were still out the front of their house however they told me that they were already walking inside and had their back to the road. It was not until they heard the bike return that they looked out and saw that I had come of the bike.”

Wyn Pham statement dated 11 October 2018

In a statement dated 11 October 2018 the claimant stated the backpack and its contents, a three-quarter bottle of Jack Daniels and two stubbies of Corona, weighed less than three kilograms.
She further stated:
“5.     At the time of the accident I was certainly holding on with my left hand. I remain very uncertain as to whether I had released my right hand to waive or was about to. It was certainly my intention to wave but it is my belief I did not get to waive.
6.     After we had gone out of the house we turned left and then did a U-turn so that the house and my friend Vicki Jenkins was on my right-hand side. I am aware that Vicki Jenkins was already starting to walk into the house. As she was on my right-hand side if I was to waive it would only be with my right hand and my left hand would stay around Paul’s waist.
7.     I know from previous experience with driving with Paul that he was very conscious of me hanging on to him around the waist.
8.     I am actually certain that the fall was caused by the sudden acceleration or lurching forward of the bike without warning.”

Wyn Pham statement dated 23 June 2021

Ms Pham provided a further statement dated 23 June 2021. In relation to waving she stated inter alia:
“25. …On doing the U-turn we rode towards Vicki’s place which was on our right-hand side. Immediately after doing the U-turn the bike accelerated. It did not accelerate in an unsafe way. I don’t know how fast it was going. The acceleration was not so rapid that should I want to wave goodbye with my right hand I would be placed in any danger. It was my intention to waive with my right hand. Paul was aware that I intended to wave. …
26. As we approached Vicki’s house I could not see Vicki because I was behind Paul, but I knew we hadn’t reached Vicki’s house yet. Suddenly the bike jolted, in other words it very suddenly increased in acceleration. I had never experienced that before on the back of Paul’s bike. I lost my grip on Paul and with perhaps a small amount of assistance from the backpack on my back, I fell backwards on to the roadway”.
Ms Pham further state she does not know the source of the information contained in the ambulance notes and in the hospital notes which states she was waving when she fell. She notes that one or two months after the accident a policeman came to her home to ask her about the accident. She states Paul Norris was drunk that day and he was aggressive and abusive when drunk. In that context Ms Pham stated:
“48. ….Paul told me that day that: ‘You let go of my waist to waive goodbye to our friends, lost balance and fell with the weight of the backpack.’ Paul had been saying this to me since the accident as though he wanted me to learn it off by heart or he was trying to say that if was my fault for the accident. I didn’t think it was true but I was told this again and again….
So, I told the police officer Paul’s story, as that had been repeated to me time and time again and I was afraid of Paul. Also, I do not have a clear recollection. I do have a clear recollection of hanging on and the bike jolting. Of course, that happened before I fell. …
49. When I filled in the Personal Injury Benefits Claim on 27 March 2018, Paul helped me fill in the description of the accident. So, in fact it was his story not mine. He more or less dictated it to me.
50. When I saw the NRMA investigator I told him what I remembered as Paul wasn’t there as we had broken up at that time.”

Oral evidence of the claimant

Ms Pham was questioned at the assessment conference. When asked about the history recorded by the ambulance officer and in the hospital notes Ms Pham stated she does not recall that night. In relation to the version provided to Leading Senior Constable Dawson Ms Pham stated at that time that is what she thought happened because that is what she was told by Paul Norris.
Ms Pham denied she changed her version of events because she thought the version where she was waving at the time of the accident would harm her claim.
Ms Pham was asked about her level of consciousness and said she could recall “going in and out”.

Statement of Paul Norris

Paul Norris provided a statement to Shane Darlington on 28 May 2018. He stated at the time of the accident he was wearing jeans, enclosed shoes and a t-shirt. He stated inter alia:
“34.   At about 9.15 pm I rode off from our friend’s place. My bike was parked outside number 10. Wyn sat on the rear of my bike and held onto my waist and not the bike.
35.    I was wearing a helmet and so was Wyn.
36.    I was wearing jeans, enclosed shoes and t-shirt. Wyn was wearing jeans, enclosed shoes and a singlet and a back pack.
37.    I rode up the street for about 40m before completing a u-turn and I needed to go the opposite direction. …
38.    After completing the u-turn I was about 15m before no. 10 I changed from first to second gear. At this point I would have been travelling at about 40-50 km/h.
39.    During this time, I could tell she was still holding around my waist.
40.    Immediately after changing to second gear I felt Wyn’s hands slip from around my waste and fall off the bike. I could tell she had fallen off the bike.
41.    By the time I realised she had fallen from the bike I was inline with number 10. I completed a u-turn and returned to where Wyn was on the road way.
62.    I don’t believe Wyn was waving to her friends at the time of the accident. I believe she had plans to waive however both hands came off my waist at the same time when she fell off the bike. I feel I would have felt only one hand release in grip if she was going to waive at her friends. She also fell off before we reached the house.”

Oral evidence of Paul Norris

Paul Norris was questioned by telephone at the assessment conference. He agreed his bike was a racing bike and extremely powerful. He also agreed at the date of the accident Wyn Pham had been a pillion passenger on his bike 10 to 15 times.
He stated when he started the bike the claimant was on the bike with her hands around his waist. He did a U turn and started driving in the direction of home.
Two or three houses before the house of Ms Jenkins he changed gears. At that time, he said the claimant’s arms were still around his waist. He stated he accidentally dropped the clutch causing a sudden acceleration in the bike and at that time the claimant’s hands slipped from around his waist, and she fell off the back.
Mr Norris confirmed he was not wearing leathers. He also denied telling Ms Pham what to tell the police although when asked if he told her to say she let go of his waist to wave he stated he didn’t recall. He also could not recall if he was present when Ms Pham completed the claim form but did not think he told her what to say when she completed that form.
Mr Norris stated after the accident Ms Pham was in and out of consciousness.

Statement of Vicki Jenkins

Vicki Jenkins provided a statement to Shane Darlington on 2 July 2018. She stated when the claimant left her driveway on the back of Paul Norris’ bike, she started to walk up her driveway towards the front door. She heard the bike come back and turned around and saw the bike with no passenger on the back. She said she saw the claimant lying on the ground in front of her house in front of the tree.
Ms Jenkins also stated Mr Norris was wearing his leathers and boots.

Was the claimant contributorily negligent

Firstly, I find the evidence of Vicki Jenkins unreliable but of little importance. Her evidence as to the whereabouts of the claimant’s presence on the road and her evidence as to what Mr Norris was wearing at the time is inconsistent with the evidence of both the claimant and Mr Norris.
The insurer accepts there was a breach of duty of care by Mr Norris in accelerating suddenly and without notice causing the bike to jolt and Ms Pham to fall off the back.
The question I am required to determine is whether the claimant had removed one or both hands from around the waist of Mr Norris, contributing to her fall from the bike.
I accept the claimant was in pain and had been administered morphine when she was attended by ambulance officers. The ambulance report suggests the claimant was not completely alert. This is consistent with the assertion of Mr Norris that Ms Pham was in and out of consciousness.
The history recorded by the ambulance service of falling from the bike whilst waving goodbye to friends at the same time as the bike accelerated is consistent with the history recorded by Ms Pham in the Application for personal injury benefits and in her record of interview with Leading Senior Constable Dawson on 18 March 2018, eight days after the accident. In his notebook Leading Senior Constable Dawson recorded: “The bike was already moving at the time I raised my hand and as Paul drove the bike jolted forward and as a result I fell backwards”. Ms Pham signed the notebook entry.
In her statement dated 25 May 2018 Ms Pham said she was going to wave goodbye, but her hands were still around Paul’s waist although she also stated at paragraph 21 of that statement, she did not have any memory of the details of the accident. In her statement dated 11 October 2018 Ms Pham said she was uncertain whether she had released her right hand to wave.
I do not accept the claimant’s assertion that she had been persuaded by Mr Norris to say she let go of his waist to wave goodbye, lost balance due to the weight of the backpack and fell. Whilst this version was set out in the claimant’s statement dated 23 June 2021, she also stated she did not have a clear recollection of what occurred. When questioned at the assessment conference Ms Pham said she could not recall that night.
Mr Norris in both his statement dated 28 May 2018 and his oral evidence said he felt the claimant’s hands slip from around his waist when he accidentally dropped the clutch causing a sudden acceleration in the bike. However, assuming the sudden acceleration of the bike and the lifting of her hand from around his waist occurred almost simultaneously he may not have been aware Ms Pham started to lift her right hand to wave.
It was also suggested that it was unlikely Ms Pham was waving because the bike had not reached the house of Ms Jenkins at the time the accident occurred. However, Mr Norris said the bike was travelling at 40 to 50kmph at the time the accident occurred and would undoubtedly have travelled the distance to Ms Jenkins’ house in a very short time frame. That being the case I consider it would be reasonable for Ms Pham to start to lift her right arm to wave prior to reaching Ms Jenkins’ house.
Noting Ms Pham was not completely alert at the scene of the accident I find it unlikely that she would adopt and relay to others a version of events which was untrue.
I am satisfied Ms Pham now has no recollection of that night and that the version of events recorded by the ambulance service at the scene, by Leading Senior Constable Dawson on 18 March 2018 and by the claimant in the Application for personal injury benefits is an accurate version of what occurred.
I find that Ms Pham fell from the bike and sustained injury when Mr Norris changed gears, accidentally dropping the clutch causing a sudden acceleration and jolting in the bike at the same time as the claimant simultaneously removed her right hand from his waist with the intention of waving to her friends.
In Podrebersek v Australian Iron and Steel (1985) 59 ALR 529 (Podrebersek) the High Court at [10] stated:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage …and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.”
I accept that in many circumstances waving whilst riding as a pillion passenger on a bike is a manoeuvre that may be exercised without the passenger falling. However, there is clearly an obligation on a pillion passenger to hold on securely when the bike is in motion and in failing to do so I find the claimant guilty of contributory negligence.
The insurer submits an appropriate reduction for contributory negligence would be 30%. However, weighing up the comparison of culpability as per Podrebersek I am satisfied that the degree of departure from the standard of the reasonable person displayed by the claimant in the circumstances would amount to a finding of contributory negligence of 15%.
I propose to reduce damages accordingly.

THE ASSESSMENT OF DAMAGES

The evidence

The claimant provided a detailed statement dated 23 June 2021. She is a single mother and currently resides with her two daughters aged 22 and 9.
Ms Pham is now 45 years of age. She was born in Vietnam and migrated to Australia as a young child, the eldest of five children. On leaving school Ms Pham held a variety of jobs including in retail. She also undertook a hospitality course at Campbelltown TAFE and an accounting/business course at Liverpool TAFE.
Ms Pham gave birth to her eldest daughter in 2000 and shortly after commenced work at Westpac in customer service where she worked for about five years. For about 12 months in or about 2005 Ms Pham worked as a business development manager. Following a period when she was in receipt of the supporting parents benefits Ms Pham obtained work as a real estate receptionist where she remained for about a year and a half before working as a salesperson for a short period. Ms Pham moved to Canberra and worked as a receptionist in a small accounting officer for 6 to 12 months before commencing work with ACT Health as a sterilising technician. Ms Pham gave birth to her second daughter in 2011. As a single mother of two children Ms Pham received the single parents benefit until 2014 when she returned to Sydney.
In 2014 Ms Pham commenced employment with Transport for NSW as a payroll officer. Initially she was employed as a permanent part time officer but worked full time hours with additional overtime. Ms Pham states she loved her job describing it as the best job she had ever had. Ms Pham has not returned to work since the accident.
Following the accident Ms Pham was hospitalised for five days before being discharged home in a wheelchair. Not only did she sustain a fracture of the proximal femoral shaft she also sustained soft tissue injuries to her knees, her spine and her right hip. She also had significant abrasions caused by road burn to her right shoulder, her right arm, the back of her right elbow, the palms of both hands, both knees, the right ankle and between her legs.
Ms Pham stated following the accident the insurer provided a cleaning service for a few months but after it ceased her eldest daughter had to assist her. She said her daughter resented this and it impacted their relationship.
Ms Pham states not long after the accident she became aware she couldn’t do anything for herself and became increasingly depressed. Her sleep became disturbed, and she started to have nightmares of the different ways she could die. She states she has flashbacks to the accident; she became irritable and intolerant. She also increased her alcohol consumption. Ms Pham also states she has difficulty controlling her emotions and her memory is poor.
Ms Pham states she now has a limp, pain in her right hip and knees, pain in her neck which comes and goes and what she describes as a feeling like she has “weight in her lower back”; “an irritable pinch which cannot be relieved”. She also described loss of movement in her neck and back. Ms Pham also says she has lost sensation in the palms of both hands, she has difficulty sitting or standing for extended periods and difficulty with kneeling, crouching, pulling, and pushing. She also has significant scarring.

Pre-accident medical history

In about 2008 the claimant sustained a laceration to her right shoulder following an accident with a glass pane leaving her with a residual keloid scar on the right shoulder.
Ms Pham conceded from about 2014 she attended Advanced Health Medical Centre at Canley Heights and suffered from minor anxiety and depression. She also acknowledged seeing a work organised counsellor for three or four sessions whilst working for Transport for NSW.
The records of BHT Corporation Pty Ltd show the claimant sought treatment from Advanced Health Medical Centre for anxiety and depression on 12 February 2015, 5 March 2015, 13 March 2015, 16 March 2015, 16 April 2015, 15 June 2015, 25 August 2015, 24 October 2015, 2 November 2015, and 12 February 2016 when she reported “burnt out at work”. On 16 March 2016 she reported a breakdown, and ongoing counselling was recommended.
Ms Pham sought treatment at Fairfield West Medical Centre. On 22 February 2017 she reported being tired and stressed all the time and reported having seen a psychologist in September 2016. On 7 September 2017 Ms Pham reported getting emotional easily. On 6 October 2017 she complained of headaches and stress associated with issues in her personal life. She reported she had suffered anxiety for a long time, had seen a psychologist and was previously on medication. On 3 November 2017 Ms Pham was seen for anxiety and depression noting that her grandma had passed away.
On 15 December 2017 the claimant expressed concern about her drinking noting that she usually drinks alcohol four or more times per week and consumes five or six standard drinks on a typical day of drinking.
On 15 January 2018 Dr Hua, general practitioner (GP) undertook an alcohol assessment and reported the claimant had one or two standard drinks on a typical drinking day and six or more standard drinks less than monthly.
On 19 January 2018 the claimant consulted Dr Shinwari with a history of anxiety, work stress and worries over little things. He referred the claimant to a psychologist and prescribed Efexor-XR.

Benestar records

The claimant underwent counselling through Benestar, an EAP provider to the claimant’s employer. The Benestar records detail counselling sessions on 3 June 2015, 3 July 2015, 23 July 2015, 10 December 2015, 18 December 2015 and 15 January 2016. The claimant’s supervisor accompanied her to several sessions.
On 3 June 2015 it is noted it was the claimant’s first full week back at work after three months off. The claimant was considered at low to medium risk although she reportedly had suicidal thoughts. On 3 July 2015 the claimant suggested her GP had diagnosed depression and anxiety and she was the subject of blame from her traditional Asian family. On 23 July 2015 the claimant expressed frustration in respect of mood swings. The next attendance was not until 10 December 2015 following the breakdown of the claimant’s relationship with her boyfriend. She also continued to discuss her distress over her relationship with her family. On 18 December 2015 the claimant reported her mood was improving and on 15 January 2016 she reported a significant improvement in her mood over Christmas and felt she had things to look forward to. Discussion ensued over an ongoing self-care plan and a wellness plan. This was the last counselling session.

Post-accident medical history

Following the accident, the claimant was admitted to Liverpool Hospital from 10 March 2018 to 15 March 2018. The discharge referral recorded her injuries as follows:
· spiral fracture of the inter trochanteric region and proximal femoral shaft with a lateral displacement of the fractured fragment, and
· multiple abrasions, largest over the right shoulder.
On 12 March 2018 the claimant underwent operative fixation of the right femoral shaft fracture under the care of Dr Lieu.
Whilst hospitalised the claimant also underwent a CT of the head and cervical spine, an
X-ray of the right ankle, foot, tibia and fibula, an X-ray of the chest, an X-ray of the pelvis and an X-ray of the right shoulder.
The claimant first consulted Dr Shinwari on 19 March 2018 following the accident. In addition to recording her physical injuries Dr Shinwari reported the claimant remembered the accident, felt anxious and was teary.
In a report dated 18 April 2018 Dr Lieu noted the claimant was still non-weightbearing. He reported she complained of significant pain around the entire right thigh and both knees. He suggested she could commence to weight bear on crutches and progress to weight-bearing as tolerated without crutches within three to four weeks. Dr Lieu referred Ms Pham for physiotherapy treatment.
The claimant also underwent physiotherapy with Sports Focus from 26 April 2018 to 28 August 2019 in relation to her knees, right hip, left hip and neck.
An MRI of the left knee on 16 May 2018 concluded:
“Grade 2 injury of the medial collateral ligament.
Low grade sprain of the proximal attachment of the anterior cruciate ligament.
Bony contusions involving the lateral femoral and tibial condyles as well as the medial tibial condyle.
Further bony contusion involving the medial margin of the medial patellar facet”.
An MRI right knee on 16 May 2018 concluded:
“Grade 2 injury of the medial collateral ligament.
Low grade sprain of the proximal attachment of the anterior cruciate ligament.
Short segment undisplaced vertical longitudinal tear involving peripheral third of the anterior horn of the lateral meniscus.”
On 23 May 2018 Dr Lieu reported the MRI scan confirmed grade 2 injuries of both medial collateral ligaments (MCL ligaments). He also noted disruption of the proximal attachment to the femur. He stated significant bruising in the femur and medial aspects of both medial tibial metaphysis would explain the claimant’s significant pain and instability.
The claimant sought treatment with Michelle Jackson clinical psychologist on 12 May 2018, 22 May 2018, 28 June 2018 and 12 July 2018. On 12 May 2018 Ms Jackson noted the claimant was taking Endone and Oxycodone for chronic back pain. She reported pain in both knees, both hips, ankles, both wrists and back. Ms Jackson noted the claimant experienced depression, frustration, anxiety and anger with herself for not being independent and able to manage things. The claimant reported that she became teary and experienced flashbacks when she saw a car speeding or driving carelessly. She reported difficulty sleeping due to pain and woke up crying and screaming. Ms Jackson noted the claimant was ‘not able to control her anxiety’ and ‘hyperarousal’ and was ‘not coping with anything’. In a report dated 1 May 2020 Ms Jackson diagnosed post-traumatic stress disorder with panic and depression due to the accident.
On 22 June 2018 Dr Lieu reported slow progress with pain around the femur and both knees. He recommended continued physiotherapy.
On 19 June 2018 a proposed return to work plan was devised with an anticipated start date of 25 June 2018 commencing with work from home. This never occurred.
On 7 September 2018 Dr Lieu reported the claimant was still intermittently wearing her knee splints. She complained of numbness around the anterior thigh and walked with a limp. He reported ongoing irritation to the hip abductors although her knees were both stable. He recommended removal of the hardware at two years post-surgery.
On 7 November 2018 Dr Shinwari reported the claimant “went to work last week, was not allowed to come the next week”.
On 28 May 2019 Dr Shinwari reported the claimant felt anxious, irritable, was always in pain, pain was aggravated by cold weather, she was limping on the right side and had weak knees.
At review on 12 July 2019 Dr Lieu reported Ms Pham continued to have significant pain around her thigh with ongoing swelling and a limp. She walked with an antalgic and Trendelenburg gait. The fracture site was irritable and tender to palpation and there was ongoing pain and irrigation of her abductor muscles and the insertion site of the femoral nail. He also noted a moderate knee effusion.
The claimant underwent an X-ray of the right hip and femur on 14 July 2020 showing the screws in the femoral neck and the intramedullary nail in the right femur. A healing fracture was present in the proximal femoral diaphysis. The fracture was healing in reasonable alignment.
An X-ray of the right knee on 14 July 2020 showed mild osteoarthritic change in the right knee joint, with evidence of joint space narrowing, subchondral sclerosis and osteophyte formation. A minor effusion was present in the knee joint.
An X-ray of the left hip and left knee on 14 July 2020 showed minimal osteoarthritic change in the left hip joint and left knee joint, with evidence of joint space narrowing and subchondral sclerosis.
The claimant underwent removal of the metal hardware from the right femoral shaft and a right knee arthroscopy in October 2020 under the care of Dr David Lieu.
Ms Pham commenced treatment with Workers Doctors at Parramatta on 27 October 2021. She mainly came under the care of Dr Eric Lim or Dr Ben Dickson. Dr Lim reported Ms Pham continued to struggle with back, hip and knee pain and she cannot sit or stand for more than 15 to 30 minutes. He also reported she had trouble sleeping, flashbacks, anxiety, trouble concentrating, stress, irritability, fatigue, poor memory, depression and concluded she suffered intrusive post-traumatic stress disorder which impacted her capacity for work.
Dr Kwok, clinical psychologist of South Western Sydney Area Counselling Service provided a report dated 26 March 2022. She stated she had treated the claimant for post-traumatic stress disorder on eight occasions since 29 April 2021. She reported Ms Pham’s social, practical and occupational functioning was severely impaired due to a combination of her post-traumatic stress disorder and other medical conditions. Whilst Dr Kwok found Ms Pham unfit for work at that time, she was unable to comment on her future work capacity where Ms Pham was in the early stages of treatment, namely, cognitive behavioural therapy.

Whilst Dr Kwok refers to treatment commencing on 20 April 2021 her records include session notes from a consultation on 20 April 2020. In relation to the claimant’s pre-existing condition Dr Kwok recorded:
“Pre-injury symptoms before the accident she had anxiety associated with depression due to family expectations. She saw other counsellors about her self-worth and self-esteem. However, after the accident the symptoms of depression and anxiety had exacerbated. She now has screws and scars and walks with a limp she felt she wasn’t good enough before the accident now she feels worse since the accident.”
On 29 April 2021 Dr Kwok recorded, inter alia:
“*Daily – takes daughter to school (10), plays poker. Has been living like this since 2018 accident. Before this, she was ‘workaholic’ but had anxiety and depression (due to family before). Has another daughter who is 21 years old.
Used to work to cope with emotional distress. She worked in payroll for government, transport. She was good at it and was in her 4^th year in the job when the accident happened (full time casual). The physical injury prevent her from working at the time; was also getting nightmares on most days (dreams of different ways to die). Currently not employed anymore.”
Keystone Professionals provided a report dated 19 May 2021. It was reported the claimant had begun to feel that her right knee was unstable. She also complained of left knee pain, pins and needles from her left hand radiating up to her left shoulder. It was reported the claimant believed her physical condition had worsened.
Dr Shinwari upgraded the claimant’s capacity for work from no capacity to two hours a day three days a week from 20 May 2021. Keystone Professional believed the claimant could pursue employment as a home loans officer, payroll officer, receptionist or in administration.
And on 29 October 2021 Dr Kwok recorded, inter alia:
“Poker, which used to relax her, is no longer giving her the stimulation”.
On 16 July 2021 Dr Shinwari reported the claimant alleged she had severe unbearable pain. She was complaining of back tingling sensation, right knee and hip pain. He reported the right knee looked slightly swollen and noted it was unstable.
On 16 September 2021 Dr Shinwari reported complaints of sore knees, hips and lower back. He reported she had fallen when her knee gave way.
The claimant was referred to Dr Kumagaya, psychiatrist on 29 October 2021. He provided a report dated 7 April 2022. He diagnosed post-traumatic stress disorder and concluded the claimant’s prognosis for a full recovery and a return to her pre-accident employment and activities was guarded.
An ultrasound of the right ankle on 30 December 2021 concluded appearances were in keeping with tibialis posterior tenosynovitis.
Dr David Lieu provided a report dated 11 February 2022. He reported the claimant had pain in both hips, ongoing pain in her right knee and pain in her right ankle. She had recently been diagnosed with tibialis posterior tendinopathy. Clinically, she was difficult to examine as she was painful everywhere. Dr Lieu noted that since her injury, her femoral shaft fracture had fully united without complication, with no significant pathology found in her knee at the time of her last arthroscopy. Dr Lieu indicated that there is likely a strong psychological component to her pain.

The claimant’s medico-legal evidence

Dr Uthum Dias, 11 November 2019

Dr Dias assessed the claimant at the request of her lawyers on 11 November 2019. On examination he reported Ms Pham was a depressed historian who was emotional and teary and who demonstrated distress when sitting and found it necessary to stand up on two occasions due to pain and discomfort in her lower back and right hip.
He reported Ms Pham had suffered from depression and anxiety since about 2007 but had experienced a significant aggravation in those symptoms due to the accident. He also reported that following the accident Ms Pham had resorted to consuming alcohol at a dangerous level on a nightly basis but over the preceding three months had reduced her consumption to one to two standard drinks per week.
Dr Dias concluded as a result of the accident Ms Pham suffered from:
·        chronic mild non-specific cervical spine pain secondary to an acute musculoligamentous strain;
·        chronic non-specific lumbar spine pain secondary to prolonged altered gait;
·        chronic right hip pain, stiffness and discomfort and an acquired right true leg discrepancy secondary to the right proximal femoral shaft fracture;
·        chronic right knee patellofemoral dysfunction with an associated medial meniscus tear and a grade 2 medial collateral ligament strain secondary to an acute soft tissue impaction injury;
·        chronic left knee patellofemoral dysfunction and an associated grade 2 medial collateral ligament sprain, secondary to an acute soft tissue impaction injury;
·        scarring as a result of abrasions to the right arm, right forearm, right hand and left hand, and
·        scarring as a result of abrasions to the right and left thigh and right knee.

Dr Uthum Dias, 22 March 2022

In his report dated 22 March 2022 Dr Dias stated the claimant was still suffering from debilitating symptoms of pain, stiffness and discomfort affecting her lower back, right hip, right thigh and right and left knees and intermittent pain in the cervical spine. She also had residual scarring to the right arm, right hip and right knee.
He also reported she was suffering from symptoms of depression and anxiety, although she was not undertaking treatment for those symptoms.
Ms Pham estimated that she could stand or walk for up to eight minutes at a time due to worsening lower back, right hip and right knee pain before requiring a break. She estimated she could only sit comfortably for 30 minutes and avoids driving for longer than 10 minutes. Ms Pham stated she avoided tasks that involved kneeling, squatting, crouching, bending or twisting of the lower back.
Dr Dias reported Ms Pham relies on family members to assist with domestic tasks, she is unable to perform gardening duties and can only undertake light grocery shopping. Dr Dias also recorded Ms Pham was drinking alcohol heavily and on a daily basis.
Her treatment at that time was pain medication, physiotherapy and home exercises.
Dr Dias noted large areas of scarring to the right arm and forearm including a large barely visible hyper pigmented scar over the right forearm measuring 15cm in length and 6cm in width. She had more prominent and clearly visible scars including to the right elbow measuring 8cm in length and 4cm in width and to the proximal right forearm measuring 12cm in length and 6cm in width. He also noted minor scarring to the right and left palm which were barely visible to the naked eye. Dr Dias also noted a linear scar to the right hip measuring 6cm in length with visible suture mark and associated contour defect. He noted a 4cm scar to the right thigh and 1.5cm scars to the right knee all associated with suture marks, pigmentary contrast and a mild contour defect. He also reported the presence of ovoid scars to the right and left knee measuring 2.5 x 2cm in length with pigmentary contrast with the surrounding skin and an arthroscopic portal scar which was 1cm in length and had hyper pigmentary contrast with the surrounding skin.
Dr Dias felt the prognosis for improvement was poor and was of the view the claimant remained totally unfit for any form of employment and was likely to remain unfit for employment on an ongoing indefinite basis into the foreseeable future.
He concluded Ms Pham was at risk of developing significant post-traumatic osteoarthritis affecting her right hip and right knee. He felt she may ultimately require a right total hip replacement and possible a right total knee replacement in the next 15 to 20 years.

Dr Horace Ting, vocational and functional assessment report, 16 February 2022

Dr Ting reported Ms Pham now suffers from low self-worth, breakdowns and crying bouts, broken and disturbed sleep and feels fearful and anxious. He says she does not trust herself to be a reliable worker at present. She has withdrawn from social activities and disconnected from friends. She suffers from irritability, loss of motivation and depressive episodes where she wants to give up.
Dr Ting noted the claimant had premorbid anxiety and depression. He obtained a history of a difficult childhood, with an alcoholic and abusive father. Ms Pham had become estranged from her eldest daughter who had left home, and she did not have regular contact with her four younger brothers.
Dr Ting stated:
“Ms Pham is certified unfit for work and is not work ready at this stage. Her ongoing treatment needs, physical restrictions, psychological difficulties, cognitive sequelae, persistent pain, disturbed sleep pattern, reduced community mobility, job loss, and restricted access to the open labour market have resulted in her low level of readiness for work”.
Dr Ting concluded should she become job ready Ms Pham demonstrates a residual physical capacity to perform sedentary work for two to three hours per day. However, he noted barriers to employment included physical and functional restrictions, psychological sequelae, persistent pain, cognitive sequelae, low energy levels, her age, restricted access to the open labour market and poor health conditions noting she now suffers from psoriasis and her weight fluctuates.
However, Dr Ting concluded not only is Ms Pham not job ready, but she does not demonstrate a real earning potential at this stage and is unlikely to return to gainful employment without significant improvement in her condition and intensive rehabilitation and vocational services.

The insurer’s medico-legal evidence

Dr Anthony Smith

The claimant was assessed by Dr Anthony Smith, orthopaedic surgeon. He provided a report dated 16 July 2020.
Dr Smith found the fracture had united without any shortening or deformity. He concluded the claimant has pre-existing but asymptomatic bilateral hip osteoarthritis and bilateral knee osteoarthritis. Whilst the claimant could have aggravated her hip and knee osteoarthritis in the accident, he felt any aggravation would have resolved of its own accord with no remaining disability three months post-accident at most.
Dr Smith reported from an orthopaedic point of view, the claimant would have been fit to return to work in her usual occupation without restriction after three to seven months at most. He concluded the claimant had fully recovered and had no assessable impairment.

Dr Graham George

Dr George, psychiatrist assessed the claimant and provided a report dated 23 July 2020.
Dr George reported the claimant’s sleep had been disturbed since the accident and she had frequent nightmares of the accident or of different ways of dying. She reported flashbacks and had remained apprehensive and on edge.
Dr George reported the claimant disclosed a history of anxiety and depression in relation to family issues with which she coped reasonably well. She was often depressed, irritable, and lacked tolerance.
Dr George reported the claimant was drinking to relax, at least five days out of seven, a whole bottle of wine or five or so standard alcoholic drinks.
Dr George reported her affect was tearful when she spoke about the accident and her mood appeared depressed.
Ms Pham was not under psychiatric care or taking psychotropic drugs although she had consulted a psychologist two months earlier.
Dr George diagnosed chronic post-traumatic stress disorder in association with alcohol use disorder because of the accident. He concluded the claimant’s prognosis was guarded because she did not appear motivated to continue in treatment.
Dr George provided a supplementary report dated 26 August 2020 after reviewing treatment records dating back to 2007. He noted a pre-accident history of ongoing anxiety and depression, occasionally treated with anti-depressant medication, as well as alcohol abuse both prior to and following the accident.
However, Dr George also noted that at examination, Ms Pham did not deny prior episodes of anxiety or depression and had indicated intervention with antidepressant medication previously. He noted she linked it to specific psychosocial stressors related to family issues. However, whilst he had not taken an alcohol history prior to the accident Dr George concluded it appeared from time-to-time alcohol abuse had been a problem.
Dr George diagnosed a pre-existing ‘persistent depressive disorder’ or ‘dysthymic disorder’ which can be described as a predominantly depressed mood state where the person’s mood is ‘more down than up over at least a two-year period’. He noted alcohol abuse was often associated with anxiety and depression.
Dr George maintained the accident-related diagnosis of chronic post-traumatic stress disorder in association with alcohol use disorder.
Dr George noted the claimant had been able to hold down a job as a payroll clerk for Transport for NSW prior to the accident but had been unable to work since the accident. Dr George maintained that the claimant was capable of future part time work up to 20 hours per week. He opined that her capacity was restricted due to ongoing symptoms including the intrusive nature of post-traumatic stress disorder, elements of anxiety and depression as well as alcohol use disorder. His conclusion was made on the basis that there is no guarantee the claimant will engage in treatment.

Functional and vocational assessment of the Vocational Capacity Centre (VCC)

The claimant underwent a functional and vocational assessment at the VCC on 11 November 2021. The functional assessment was conducted by Dr Inez Farag and the vocational assessment was conducted by Ms Annie Hartley.

Functional assessment

The claimant presented as somewhat emotional and defensive. She reported her emotional state was such that she could not recount in any detail the events surrounding her accident. In terms of the post-accident intervention, however she was a reasonable historian and responded adequately to the questions posed.
As a result of the accident, the claimant sustained a fracture injury to the right femur. She also described other symptoms affecting the knees, the lower back and the neck and with persistent pain in the right hip. She has scarring ‘all over the body’, including the hands, side of the trunk, in between the knees, ankles and groin.
Functionally, the claimant displayed limitations that were associated with restricted movement of the right hip. She was limited in sustaining awkward postures that load the right hip, such as crouching, squatting or repetitive climbing. Pivoting on the right leg was restricted impacting her ability to negotiate uneven terrain. In the manual handling tests, she was limited by the right hip movement restriction, with lifting from floor level being limited to light weights of no more than three kilograms.
Dr Farag reported that based on her demonstrated abilities at the assessment, the claimant was considered capable of undertaking a range of work that falls in the sedentary and semi-sedentary work categories. The claimant was considered physically capable of undertaking her pre-injury role as a payroll officer. In employment that was deemed to be physically suitable, the claimant was considered eventually capable of working full-time hours.
Dr Farag indicated that appropriate alternative vocational options included home loans officer, payroll officer, administrative roles/receptionist, general clerk, data entry operator and sales assistant.

Vocational assessment

As at the date of accident the claimant was employed by Transport for NSW, in the position of payroll officer. She had worked as a payroll officer with Transport for NSW since 2014 on a casual but full-time basis. Ms Pham reported some issues with anxiety relating to her personal situation and had received some counselling through her employer. Her boss had gone with her to the first session as a support person. She described feeling valued and supported in her role and had been hopeful of gaining a permanent position when the accident occurred.
Ms Hartley noted Ms Pham became teary, agitated, fidgety, rubbed her hands together and had the appearance of a person who was anxious and on the verge of panic. She noted Ms Pham was a poor historian, she had difficulty recalling dates and she was scattered when relating her problems. She observed a seated tolerance of 20 minutes, and observed the claimant to frequently stand and pace, put her arms behind her head and rub her neck.
The claimant demonstrated a general cognitive capacity in the below average range. This result was unexpected given her work history and background. Ms Hartley reported objective testing indicated exaggeration, therefore it was difficult to rely on the test results as a true indicator of general ability, clerical and administrative skill. However, whilst Ms Hartley noted there were indicators that Ms Pham was intentionally exaggerating the magnitude of her problems there was also evidence of significant, ongoing psychological distress.
Ms Hartley noted the claimant had been diagnosed as suffering post-traumatic stress disorder and alcohol use disorder with ongoing significant symptoms of emotional distress. Ms Hartley noted although the claimant had avoided treatment in the past, she had recently returned to counselling. Ms Hartley reported finding suitable work will be difficult and confronting to the claimant and she will require support in any return-to-work process.
Ms Hartley noted the claimant’s good previous work history, with experience in a range of clerical and administrative roles. Ms Hartley considered Ms Pham will need to engage in treatment to develop strategies to understand and manage any symptoms relating to post-traumatic stress disorder, and to also engage in a drug and alcohol rehabilitation program to address her alcohol dependence issues to have a chance of success in maintaining any work she undertakes. Ms Hartley concluded a return to work of 20 hours per week would be most suitable initially, with a view to a graduated return to full-time hours, made in consultation with treatment providers.

THE RELIABILITY OF THE CLAIMANT’S EVIDENCE

At the assessment conference the insurer sought to rely upon a report of AHC Investigations dated 24 May 2022. The claimant agreed she had attended the office of an accountant and set up an ABN entity titled The Trustee for the Wyn Pham Super Fund on 2 February 2021. She said this was designed to transfer superannuation paid by her industry fund into a self-managed fund.
The investigation report suggests the claimant is regularly and actively involved in professional poker tournaments. Facebook shows she won a poker tournament in July 2019 and several prizes between April 2020 and March 2020. The Facebook page for WPT League Sydney shows the claimant participated in the WPT Deepstacks Main Event with a seat buy-in of $1,500 (March 2022). She is also listed as the winner of events on 12 April 2021, 10 May 2021, 13 May 2021, 17 January 2022, 16 February 2022 and 1 March 2022. These events appear to have taken place at the WPT League located at 93 Edensor Road, St Johns Park. The claimant’s Facebook page contains images of her playing poker on 28 February 2022, 29 March 2022 and 7 May 2022.
When questioned about her participation in poker games the claimant denied she failed to inform insurance doctors about them specifically stating she informed the vocational assessors. Certainly, under the heading “Social Situation” Ms Farah has reported Ms Pham enjoys playing poker and that she “likes to drink”.
Ms Pham confirmed that notwithstanding the record of wins she made a loss playing poker. She stated she used to play three times a week but no longer. She said playing poker is associated with drinking alcohol, is her main social release and gets “me out of my head”.
Ms Pham agreed she had told doctors she had difficulty concentrating but did not agree she had not mentioned her participation in poker tournaments. Ms Pham asserted she told everyone. She did not agree she was not socially withdrawn. She said she did not need to be social to play poker, simply to play and drink without the need to think about anything else. Ms Pham described poker as her “saviour”.

Ms Pham said she started playing poker seven months after the accident, when she was still using a wheelchair. Initially Paul Norris helped her to get there and thereafter, until last year when she started to drive herself, she would be picked up by a friend. Ms Pham stated she often plays for about four hours; she can sit or stand and probably attends about once a week.
It was suggested Ms Pham had not told doctors of her longstanding depression, her referral to a psychologist and that she had been prescribed Efexor shortly before the accident. Ms Pham stated she had been upfront with the NRMA examiners about her history of depression and anxiety. The claimant also submits that she disclosed her referral to counselling in her replies to the insurer’s request for particulars. Whilst she was unable to recall the name of the provider, she indicated she attended counselling in a building opposite the Queen Victoria Building.
Whilst I am satisfied that there is no truth in the suggestion that the history initially provided by the claimant as to the circumstances of the accident was done so at the behest of Mr Norris, I accept that the claimant has no real recollection of the events of that night.
I had the opportunity to assess the claimant during the Assessment Conference. I formed the view the claimant gave her testimony honestly although she was often vague in her responses, and unable to recall the circumstances of the accident. In assessing the claimant’s veracity, I also take into account the serious psychological illness from which she now suffers.
I also noted the claimant’s replies were brief and she made no attempt to elaborate or otherwise convince me of the veracity of her evidence. In the same way I think Ms Pham purported to disclose her pre-accident history of depression, anxiety and excessive alcohol use, albeit without detail as to the extent or otherwise of those pre-existing conditions.
Similarly, I do not think there was any attempt by the claimant to hide her participation in poker tournaments. She informed several medical practitioners that she played poker, although in the absence of further detail it was probably not understood that she was participating in tournaments.

THE INJURY SUSTAINED BY THE CLAIMANT

The claimant suffered a right proximal femoral shaft fracture resulting in chronic right hip pain, injuries to both knees, injury to her right ankle, soft tissue injury to the cervical and lumbar spine, significant abrasions and scarring. I also accept the claimant now suffers from chronic post-traumatic stress disorder in association with alcohol use disorder as a result of the accident.
I do not accept the opinion of Dr Smith that the claimant has fully recovered from the effects of the accident where it is inconsistent with the evidence generally.
However, I do accept the recent opinion of the treating surgeon Dr Lieu that the femoral shaft fracture has now fully united without complication and that there is no significant pathology in the right knee. I accept, as surmised by Dr Lieu that there is now a strong psychological component to the claimant’s pain. However, as reported by Dr Dias I accept Ms Phan continues to experience debilitating symptoms of pain, stiffness and discomfort, affecting her lower back, right hip, right thigh and right and left knees and intermittent pain in the cervical spine. I find the claimant’s perception of pain is exacerbated by her psychological condition.
Whilst the claimant’s ability to play poker might suggest she is not socially withdrawn and she certainly is able to maintain concentration for long periods of time I also accept her explanation that she plays poker in a solitary fashion, in that she sits, drinks and concentrates on the game. The claimant’s participation in poker is not sufficient to persuade me that she is not psychologically impaired. Dr George and Dr Ting described the claimant as teary and depressed and Ms Hartley described the claimant’s presentation as teary, agitated, fidgety and anxious, and although that was in the context of medical assessments, I find the claimant remains psychologically impaired.
I accept the claimant is currently unfit for employment. However, I note she has recently resumed psychological treatment and is now under the care of psychiatrist Dr Kumagaya. In her statement Ms Pham said from a physical point of view she thought she could work part time and Dr George also thought the claimant may have the capacity for part time work although her capacity for work would be influenced by whether she engages in treatment. On this basis I find the claimant has the capacity for a future return to work on a part time basis, in a sedentary, low stress role.

THE ASSESSMENT OF DAMAGES

Non-economic loss

Section 1.4 of the MAI Act defines non-economic loss as including pain and suffering, loss of amenity of life, loss of expectation of life and disfigurement.
The current maximum payable for non-economic loss is $595,000.
The claimant submits an appropriate allowance for non-economic loss is $350,000 whilst the insurer submits, I should allow $125,000 on the basis Dr Smith found the claimant had fully recovered and had significant pre-existing symptoms of anxiety, depression and alcohol abuse.
The claimant has suffered with chronic pain over the last four years including the long period of rehabilitation associated with the femoral shaft fracture. She has been left with significant scarring as outlined by Dr Dias in his report and whilst she had a pre-existing psychological illness as described by Dr George her psychological condition has been significantly exacerbated by the accident including the development of symptoms associated with post-traumatic stress disorder.
Whilst it is hoped with the benefit of counselling and psychiatric care Ms Pham may ultimately return to some form of employment, she lost the opportunity to secure a permanent position with Transport NSW. Indeed, as a result of the accident Ms Pham lost her job and has been incapacitated for return to employment. Ms Pham has difficulty sitting or standing for prolonged periods and is permanently unfit for manual tasks. Her relationship with her eldest daughter has been disrupted and she has found it necessary to rely on others including her daughters for assistance with household tasks.
Noting the claimant is now 45 years of age with a life expectancy of 41 years with limited expectation of improvement, other than the amelioration of symptoms depending on the success of psychological treatment I consider an appropriate assessment of damages for non-economic loss to be the sum of $300,000.

Past economic loss

At the date of accident, the claimant was working as a payroll officer with Transport for NSW on a fixed term full-time contract which ended on 31 March 2019. The claimant was employed from 30 June 2014 to 31 March 2019 working 35 hours per week. There were no employment duties she had difficulty performing, nor were there any performance issues.
I do not accept the claimant’s employment ceased due to the end of engagement where it is clear the claimant was unfit for work following the accident and where there is no reason to conclude she would not have secured continued employment on a further contract, or as she hoped a permanent position
The parties agree the claimant was earning the sum of $995 net per week at that time.
The claimant seeks to apply CPI increases each year and calculates the claim for past economic loss as follows:

Period

Net income

Total net income

10.3.2018 – 30.6.2018

$995 x 16 weeks

$15,920

1.7.2018 – 30.6.2019

$1,012 x 52 weeks (2.1%) *

$52,624

1.7.2019 – 30.6.2020

$1,025 x 52 weeks (1.6%) *

$53,300

1.7.2020 – 30.6.2021

$1,023 x 52 weeks (-0.3%) *

$53.196

1.7.2021 – 26.5.2022

$1,055 x 47 weeks (3.8%) *

$49,585

Total

$224,625

*CPI Increase

In submissions dated 10 June 2022 and confirmed during the teleconference on 17 June 2022 the insurer agreed it was appropriate to award past economic loss as of 26 May 2022 in the sum of $224,625.
As discussed, I also propose to allow an additional four weeks calculated at $1,055 net per week in the sum of $4,220 to cover past economic loss up to date.
The insurer submits I should deduct the sum of $6,524 net which is shown as income in the claimant’s 2018/2019 PAYG summary from Transport for NSW. The claimant submits no deduction should be made where there is no evidence that it relates to the period of past economic loss. The claimant submits the payment was probably a payment relating to accruals prior to the accident such as holiday pay.
The claimant submits the only other explanation is that the payment relates to sick pay post-accident. However, the claimant draws my attention to page 611 of the claimant’s bundle of documents which reveals that on 22 February 2018 the claimant took sick leave without pay which indicated she had exhausted her sick leave prior to the accident on 10 March 2018.
Perusal of pay advices dating from 22 March 2018 until 4 March 2019 show the claimant was either on sick leave with pay or AWOL (absent without leave) and received no payment of salary. The claimant was paid annual leave on 5 October 2018 although the figure does not correspond with the amount shown in the 2018/2019 PAYG summary. However, I am satisfied that the claimant did not receive income during her absences from work following the accident. On that basis I can only conclude the payment of $6,524 related to annual leave accrued prior to the accident and I do not propose to deduct that sum from the allowance for past economic loss.
I calculate past wage loss for the period 10 March 2018 to 23 June 2022 in the total sum of $228,845.
I calculate past loss of superannuation benefits at 11.5% of the sum of $228,845 in the sum of $26,317.18.
The insurer is entitled to credit in respect of weekly statutory benefits paid to the claimant pursuant to s 3.40 of the MAI Act.

Fox v Wood

Fox v Wood refers to the claimant’s entitlement to recover taxation payments deducted from statutory payments of compensation. In accordance with my direction the insurer provided further submissions dated 1 June 2022. I was advised in a message uploaded to the portal on 8 June 2022 that the claimant agreed with the submissions filed by the insurer.
Section 4.5(1)(d) of the MAI Act provides:
“the only damages that may be awarded for economic loss are (subject to this Division):
(d) damages by way of re-imbursement for income tax paid or payable on statutory benefits or workers compensation benefits arising from the injury that are required to be repaid on an award of damages to which this Part applies.”
The MAI Act provides for three separate periods of entitlement to weekly payments of statutory benefits. During the first two entitlement periods the insurer made payments to the claimant after deducting tax payable on the amount of each payment. The tax withheld was remitted to the Australian Tax Office (ATO). During the third entitlement period commencing week 79 after the accident the insurer paid the amount of the statutory benefits without deducting taxation.
In Allianz Australia Insurance Ltd v Jenkins [2020] NSWSC 412 (Jenkins) the court determined the insurer was not required to deduct tax from payments of statutory benefits from the commencement of the third entitlement period on the basis the payments were not considered income in the hands of the claimant.
The question for the court turned on the definition of “pre-accident earning capacity” in cl 7 of Schedule 1 of the MAI Act. Significantly ss 3.6 and 3.7 of the MAI Act dealing with the first and second periods of entitlement respectively refer to “loss of earnings” whilst s 3.8 of the MAI Act dealing with the third entitlement period refers to “loss of earning capacity”. A ruling had been obtained from the ATO that payments in respect of the first two periods were taxable, but payments in respect of the third period were not.
In Jenkins Adamson J stated at [31] and [32] of the judgment:
“31 In construing the Act, it is important to recall that the purpose of the provisions referred to above is to provide compensation, albeit partial, for economic loss. The ATO distinguished between payments in the first and second period on the one hand (which were measured by reference to ‘loss of earnings’) and payments in the third period (which were measured by ‘loss of earning capacity’) on the other. It is reasoned that the amounts for loss of earnings bore the character of loss of income, which was, accordingly, taxable, whereas the amount for loss of earning capacity bore the character of capital, which was not taxable. It follows that if a claimant were entitled to receive the tax component of weekly earnings (by being entitled to be paid a gross figure) but was not subject to an obligation to pay that amount in tax to the ATO the claimant would be in receipt of a windfall.
32 Such a consequence cannot have been intended. When interpreting a legislative provision, a construction which would promote the purpose of the legislation is to be preferred … The compensatory purpose of damages at common law was the basis of the decision of the High Court in Cullen v Trappell where the majority Gibbs, Stephen, Mason and Wilson JJ) decided that, in assessing damages for personal injuries, the court should take into account the income tax which the plaintiff would have to pay on the earnings of which his injuries had deprived him. Gibbs CJ later explained Cullen v Trappell in Fox v Wood (1981) 148 CLR 438 at 440 ... as follows:
‘To assess damages on the basis that the plaintiff has lost his gross earnings, when in fact the earnings would not have been subject to tax, would give the plaintiff more than he had really lost, and would depart from the fundamental principle referred to in British Transport Commission v Gourley [1956] AC 185, at p.197, ‘that the tribunal should award the injured party such a sum of money as will put him in the same position as he would have been if he had not sustained the injuries.’”
Having regard to the characterisation of the payments made in the third entitlement period there was no obligation on the insurer to withhold tax and remit it to the ATO and similarly there is no obligation on the claimant to pay tax on those payments.
Accordingly, I agree with the parties the claimant is only entitled to recover the sum of $17,220, the sum withheld by the insurer and remitted to the ATO on payments received during the first and second entitlement periods. I allow the sum of $17,220 in respect of the Fox v Wood component.

Future economic loss

In assessing future economic loss, I must have regard to the provisions of 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 her most likely future circumstances.
I am satisfied that uninjured the claimant would have maintained her employment with Transport for NSW, noting she had been employed for four years and it was job she said she loved. However, the claimant had a pre-existing persistent depressive disorder’ or ‘dysthymic disorder’ and concedes she utilised the services of the in-house psychologist and had several absences from work as a result in or about June and December 2015.
The accident caused a change in the claimant’s most likely future circumstances where she has been incapacitated for work since the accident, where she has lost her job and where her future earning capacity is limited.
More difficult to determine is the claimant’s residual earning capacity. The insurer relies upon the opinion of Dr George who found, having regard to her psychological injury, the claimant had the capacity to work 20 hours per week.
The VCC assessor Ms Hartley noted the claimant’s good work history with experience in a range of clerical and administrative roles. Subject to undergoing treatment for her psychological illness and engagement in a drug and alcohol rehabilitation program Ms Hartley felt a graduated return to work was possible. However, she also noted finding suitable work will be difficult and the claimant will require support in any return to work. The VCC report suggests the claimant has the capacity to undertake a range of sedentary or semi sedentary occupations including payroll officer, clerk, data entry operator, sterilisation technician or sales assistant.
The insurer submits I would assess future economic loss calculated at $450 net per week based on working 20 hours per week for five years, after which it would be expected, the claimant could return to full time hours and duties. I do not agree.
I find the claimant’s symptoms of anxiety, sleeplessness, depression, poor sense of self-worth in associated with her physical limitations will impede her ability to not only obtain employment on the open labour market but to maintain employment.
However, the capacity to play poker for four hours suggests the claimant can concentrate for long periods of time. The claim has recently re-engaged in psychological treatment with Emily Kwok and is under the care of Dr Kumagaya, psychiatrist. The success of that treatment is currently uncertain.
To allow the claimant an opportunity to undergo the treatment proposed by her psychiatrist and psychologist I consider it appropriate to assess future economic loss for the next two years on the basis of total incapacity for work. I do not propose to discount that figure for the vicissitudes of life having regard to the short time frame. Thereafter, on the basis of an improvement in her psychological wellbeing and having regard to the assessment of Dr Ting as to the claimant’s physical capacity I propose to calculate future economic loss on the basis the claimant has a residual earning capacity of three hours per day or 15 hours per week.
The claimant submits future wage loss should be calculated by reference to a current earning capacity of $1,055 net per week. Noting the insurer agreed this figure represents the claimant’s current earning capacity I agree.
I propose to calculate future wage loss based on a current earning capacity of $1,055 net per week for a 35-hour week.
The question is whether there should be an increase in the deduction for the vicissitudes of life having regard to the claimant’s pre-existing psychological condition. Having regard to the claimant’s attendance upon her GP in January 2018, the referral to a psychologist, the prescription of an anti-depressant and her absence from work by reason of psychological illness in 2015 I am of the view the claimant was vulnerable to further absences from work. However, I also note the claimant has a very good work history and had maintained her employment with Transport for NSW for nearly four years at the date of accident. I am satisfied the usual discount of 15% is sufficient to take into account any possible future absences from work by reason of the pre-existing psychological condition.

Accordingly, I assess damages for future wage loss in the sum of $414,562.18 calculated as follows:
(a) 23.6.22 to 23.6.24 (2 years) calculated at $1,055 x 99.4 (multiplier for 2 years on the 5% tables) in the sum of $104,867.
(b) 23.6.24 until retirement at age 67 years (20 years) calculated at $602.80 (loss for 20 hours per week) x 666.4 (multiplier for 20 years on the 5% tables) = $401,705.92 x 0.907 (multiplier for 2 years on the 5% deferred tables) = $364,347.27 less 15% for the vicissitudes of life in the total sum of $309,695.18.
I note that as per Najdovski v Crnojlovic [2008] NSWCA 175 loss of superannuation should be calculated at 14.39% of the net future wage loss.
I assess damages for future loss of superannuation benefits calculated at 14.39% of the sum of $414,562.18 in the sum of $59,655.50.

ASSESSMENT OF DAMAGES SUMMARY

I assess the claim as follows on the findings set out above:
Non-economic loss  $300,000.00
Past Loss of earnings (incl superannuation)  $255,162.18
Future loss of earnings (incl superannuation)  $474,217.68
Fox v Wood  $17,220.00
Sub-total  $1,046,599.86
Reduction for contributory negligence  $156,989.98
TOTAL DAMAGES ASSESSED  $889,609.88

The claimant’s economic losses are to be reduced by and the insurer is to have credit for statutory payments pursuant to s 3.40 of the MAI Act.

COSTS AND DISBURSEMENTS

I refer to the claimant’s schedule of costs and disbursements.
I do not allow the report fee paid to Dr Leonard Lee where the report was inadmissible having regard to s 7.52 of the MAI Act.
I allow two additional hours for the assessment conference noting it did not conclude until 1.45pm on 26 May 2022.
I allow four conferences as claimed.
I also do not allow the claim for photocopying medical reports where that disbursement relates to the cost of a doctor copying reports.
I otherwise assessment the claimant’s costs and disbursements in accordance with the attached Damages and Costs Calculator.

Period	Net income	Total net income
10.3.2018 – 30.6.2018	$995 x 16 weeks	$15,920
1.7.2018 – 30.6.2019	$1,012 x 52 weeks (2.1%) *	$52,624
1.7.2019 – 30.6.2020	$1,025 x 52 weeks (1.6%) *	$53,300
1.7.2020 – 30.6.2021	$1,023 x 52 weeks (-0.3%) *	$53.196
1.7.2021 – 26.5.2022	$1,055 x 47 weeks (3.8%) *	$49,585
Total	$224,625

[2022] NSWPIC 320

23 June 2022