Plumridge v PANDELIS - [2022] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PLUMRIDGE v PANDELIS
[2022] SADC 42
Judgment of her Honour Judge Thomas
11 April 2022
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - INTERACTION OF COMMON LAW AND STATUTORY DAMAGES AWARDS
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - DAMAGES FOR NON-ECONOMIC LOSS - CIVIL LIABILITY LEGISLATION MODIFICATIONS
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - INCOME LOSS AND LOSS OF EARNING CAPACITY - CIVIL LIABILITY LEGISLATION MODIFICATIONS
The 25-year-old applicant was injured in a motor vehicle accident whilst riding her bike to work and claims damages for her physical and psychiatric injuries. Liability was admitted and the trial concerned the assessment of damages.
The applicant claims that as a result of the accident, in addition to pain and suffering, she has suffered permanent injuries to her right shoulder, neck and upper back and developed a post-traumatic stress disorder; that she is now unable to socialise and complete her university degree, has restricted employment opportunities and is unable to return to work in an office environment.
The respondent alleges that the applicant exaggerated the extent of her claimed injuries and the level of adverse impact in circumstances where she successfully completed a further semester of university subjects, found permanent better remunerated full-time sedentary employment in her chosen field as a credit assessor, and was able to socialise, form positive relationships, and coach and play competitive netball and do well, without any significant ongoing treatment in the five years following the accident.
The respondent alleged any impairment to the applicant’s earning capacity was by reason of a pre-existing major depressive disorder she has suffered since childhood.
Judgment is to be entered for the applicant in the amount of $271,864 plus interest and costs.
Held:
(1) Damages for non-economic loss are assessed under s 52(3) of the Civil Liability Act 1936 on the basis that the injury to the applicant’s right shoulder is the dominant injury of her multiple injuries and the applicable ISV item number is 92.2 with a range of 6 to 10. To reflect the level of adverse impact of her multiple injuries, it is appropriate for the ISV for her dominant injury to be higher than the maximum of 10. The ISV is increased by 25% and rounded up to a whole number, 13, resulting in an award of damages for non-economic loss of $5,200.
(2)    The expert medical diagnosis of the applicant’s psychiatric condition arising from the accident (PTSD) and GEPIC rating for psychiatric impairment provided in a GEPIC report under regs 14 and 23 of the Civil Liability Regulations 2013 are to be accepted.
(3)    The applicant’s PTSD arising from the accident is the primary impairment to her earning capacity. The residual disabilities arising from the applicant’s physical injuries have otherwise been accommodated and do not adversely impact her earning capacity for a higher earning sedentary role.
(4)    The applicant’s PTSD arising from the accident has not deprived her of the opportunity to complete her university degree or to progress to more senior technical or analytical roles given her demonstrated capacity to perform the role of a credit assessor at a high level.
(5) As a result of the applicant’s PTSD, she is unlikely to fulfil the requirements of a more senior position involving people management. In accordance with s 56A of the Civil Liability Act 1936, it is appropriate to assess her lost earning capacity as the difference between her current salary as a credit assessor and what she would have earned as a permanent team leader. Using the agreed discount multiplier and a 15% discount for the usual vicissitudes of life, the award for loss of future earning capacity is $172,545 and for past economic loss is $21,624. These assessments include the statutory discount of 20% under s 56(5). Loss of past and future superannuation benefits are assessed at $2,054 and $20,200 respectively, both including the statutory discount of 20% under s 56(5).
(6)    It is appropriate in the circumstances found to make an award for future medical expenses, allowing for psychology, physiotherapy and surgery costs, of $21,000, and for future services and equipment of $26,250.
(7)    Agreed past medical expenses are $2,991.
(8)    The Applicant is awarded damages in the amount of $271,864 plus interest.
Civil Liability Act 1936 (SA) s 3, s 35, s 51, s 52, s 53, s 54, s 55, s 56A, s 76; Civil Liability Regulations 2013 (SA) regs 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 22, 23, Schedule 1; District Court Act 1991 (SA) s 39; Law Reform (Ipp Recommendations) Act 2004 (SA) s 29; Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 (SA); Superannuation Guarantee (Administration) Act 1992 (Cth) s 19, referred to.
Battunga Country Lions Club v Paues [2021] SASCA 72; Graham v Baker (1961) 106 CLR 340; Husher v Husher (1999) 197 CLR 138; McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Mills v BHP Coal Pty Ltd [2017] QSC 184; Purkess v Crittenden (1965) 114 CLR 164; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201; Todorovic v Waller (1981) 150 CLR 402; Watts v Rake (1960) 108 CLR 158, applied.
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Mallett v McMonagle [1970] AC 166; Penrith City Council v Parks [2004] NSWCA 201, considered.

PLUMRIDGE v PANDELIS
[2022] SADC 42
Civil
PART A: INTRODUCTION
Overview
PART B: RELEVANT LEGAL PRINCIPLES
Statutory regime for personal injury damages arising from motor accidents
Personal injury arising from an MVA motor accident
Damages for non-economic loss
Injury Scale Values and item numbers
Schedule 1 – Ranges of Injury Scale Values
Multiple Injuries
Examinations and assessments and written reports
Pure Mental Harm
Consequential mental harm
Pre-existing conditions
Damages for economic loss
Statutory modifications for economic loss
Proof of future economic loss
PART C: THE TRIAL AND EVIDENCE
The Trial
Associate Professor Brinded
Dr Herriot
Ms Ainsley
Dr Fedoric
Mr Killington

The Applicant’s Witnesses
Generally
Ms Angela Plumridge
Mr Geci
Ms Edson
Mr Mack
Ms Reid
Dr Sandow
Dr Bastian
Dr Schirripa

The Respondent’s Only Witness
Dr Wyatt

PART D: FACTUAL FINDINGS
Introduction
Family Background
2009 Move to Adelaide
Full-time Employment - 2011 and 2012
TAFE SA – 2013 and First Semester 2014
Mental Health First Semester 2014
Netball Season Winter 2014
Bachelor of Commerce (Corporate Finance Major)
Netball Season Winter 2015
Bachelor of Commerce – Second Semester 2015
The Accident
Moving House after the Accident
Injury Claim Made
Treatment - 2016 after the Accident
University Studies – First Semester 2016
Employment at BWS after the Accident
Referral to Dr Sandow – May 2016
Netball Winter Season 2016
Employment with Westpac – July 2016
Treatment by Dr Sandow – August to December 2016
GP Visit – March 2017
Netball Winter Season 2017
First Examination by Dr Wyatt – 9 June 2017
Mental health GP consultations – July & August 2017
Re-examination by Dr Sandow – September 2017
GP Consultations – December 2017 to June 2018
First Examination by Dr Bastian – 15 June 2018
First GEPIC and ISV Assessment – Associate Professor Brinded
Netball Winter Season 2018
Permanent Full-time Employment with Westpac – July to December 2018
Dr Wyatt’s Second Examination – 19 November 2018
Other GP consultations – October and November 2018
Proceeding Instituted – December 2018
Mental health GP consultations - January to March 2019
Westpac Quarterly Assessment – January to March 2019
First statement of loss
Acting team leader role – June/July to December 2019
Mental health GP consultation – July 2019
Difficulties at work
Mental health and other GP consultations – October and November 2019
First examination by Dr Schirripa – 18 February 2020
GP consultation – 27 March 2020
COVID-19 restrictions
Further referral to Dr Sandow – May and June 2020
Dr Schirripa’s second ISV Assessment and GEPIC Report – 3 September 2020
Further examination by Dr Sandow – 24 September 2020
Second examination by Dr Bastian – 8 October 2020
Further consultations with Dr Sandow – November and December 2020
Mental health GP consultation – December 2020
Return to work
GP consultations with Regency Medical Centre
Third examination by Dr Bastian - 8 February 2021
Third Examination by Dr Wyatt – 10 February 2021
Dr Schirripa’s third examination of the Applicant
PART E: ASSESSMENT OF THE ISV FOR THE APPLICANT’S INJURIES
Alternatives cases depending on the dominant injury
Conclusion as to the appropriate ISV for multiple injuries
Orthopaedic injuries
Reported Symptoms and Clinical Findings
Diagnosis
Prognosis
Level of adverse impact
ISV Assessment

Mental Harm
The Parties’ Contentions
No PTSD before the Accident
Continuity of PTSD Symptoms
Pre-existing psychiatric condition
Workplace difficulties
Conclusion as to diagnosis of mental harm
Prognosis
Level of adverse impact
Personality
ISV Assessment
PART F: ASSESSMENT OF ECONOMIC LOSS
Loss of earning capacity – Matters of proof
The Applicant’s Case
Capacity to complete university degree
Deprivation of capacity to progress to more senior management role
Working from home or office
Current employment not in jeopardy
Agreed Statement of Fact
Key findings relevant to loss of earning capacity
Primary award for loss of future earning capacity
Adjustments and final award for loss of future earning capacity
Past Economic Loss
Past superannuation loss
Future superannuation loss
PART G: ASSESSMENT OF OTHER LOSSES
Past medical and out-of-pocket expenses - agreed at $2,991
Future medical treatment
Past services
Future services and equipment
Interest
PART H: CONCLUSION AND FORM OF JUDGMENT

PART A: INTRODUCTION
Overview

This proceeding concerns an assessment of damages under the Civil Liability Act 1936 (Civil Liability Act) and the Civil Liability Regulations 2013 (Regulations) for multiple personal injuries arising from an accident that occurred on 11 January 2016 when the Applicant, Ms Angela Plumridge, was knocked off her bicycle by a motor vehicle driven by the Respondent (the accident) in circumstances where the provisions of the Civil Liability Act and the Regulations relevant to this case have not been judicially considered.
The Respondent admitted that the Applicant is entitled to 100% of her damages as agreed or assessed.[1]
[1] Second Defence (FDN 12) (Defence) [1].
The Applicant claims that as a result of the accident she sustained multiple physical injuries (her right shoulder, neck/cervical spine, upper back/thoracic spine, lower back/lumbar spine, bruising and abrasions to various parts of her body and lacerations to her right ankle) as well as pure mental harm. Whilst she made a full recovery from her minor physical injuries, the Applicant claims she has sustained a permanent injury to her right shoulder in the form of damage to the right acromioclavicular (AC) joint as well as secondary injuries to her neck/cervical spine and upper back/thoracic spine.[2] The Applicant also claims she had developed a psychiatric illness, a post-traumatic stress disorder (PTSD), as a result of the accident as well as consequential mental harm.[3] Additional psychological symptoms are alleged to comprise depression, anxiety, reduced concentration and self-esteem and a degree of rumination.[4]
[2]   Statement of Claim (FDN 2) (Claim) [6.1]; Applicant’s written closing (FDN 73) [B96]-[B97]. By the
close of trial, the Applicant had abandoned her earlier complaint in her written opening (FDN 64) [15] that her right rotator cuff was permanently injured.
[3]    Applicant’s written closing [B104].
[4]    Ibid [B105].
By reason of the accident and her multiple injuries, the Applicant claims she has suffered disabilities including:[5]
·constant aching pain, discomfort, restricted movement and whole person impairment of her right shoulder with intermittent catching and clicking of the right AC joint and pain radiating to the right medial scapular region and upper back
·constant tightness, intermittent pain, discomfort and restricted movement and whole person impairment of the cervical spine
·regular headaches, nausea from pain medications, sleep disturbance and fluctuations in weight
·ongoing psychological and psychiatric symptoms consistent with pure and consequential mental harm
[5] Claim [6.2].
Whilst the Respondent in his Defence denied the injuries allegedly sustained by the Applicant were as a result of the accident,[6] at trial it was ultimately accepted that she had sustained injury to her right shoulder and “a psychiatric injury as a consequence of the accident”.[7] The Respondent denies the Applicant suffered any injury to her neck as a result of the accident, other than a transient injury of the nature to be expected from falling off a bicycle in the circumstances in which she did.[8]
[6] Defence [2].
[7] Respondent’s written closing (FDN 72) [1]-[2].
[8] Ibid [4].
The Applicant claims she is now restricted in her employment as a credit assessor, for employment generally and for tertiary studies, and is unable to fully exploit her earning capacity.[9] She further claims her injuries will not materially improve in the future and she has sustained a permanent impairment of earning capacity for full-time, higher income managerial or leadership roles by reasons of four distinct measures of loss: deprivation of her ability to complete her university degree; impairment of her ability to handle stress preventing her from performing management or more senior roles; impairment of her ability to return to an office environment to work; and a more general loss of capacity from her reduced ability to obtain alternative employment.[10]
[9] Claim [12].
[10] Claim [11]-[12]; Applicant’s written closing [A63] and [B434]-[B480].
The Respondent challenges the extent of the Applicant’s injuries and any consequential impairment,[11] and contends that her injuries resolved over time to a point where she was able to seek and obtain employment, form positive relationships and socialise, coach and play competitive netball at a high standard and do well, and not require any significant ongoing treatment.[12] The Respondent further submits the Applicant has exaggerated the effects of her injuries during the course of this proceeding.[13] Accordingly, the Respondent has challenged the evidentiary basis of the medical opinions relied upon by the Applicant to support ongoing problems either in her shoulder and neck or her psychiatric injuries.[14]
[11] Respondent’s written closing [3].
[12] Ibid [4]-[5].
[13] Ibid [6].
[14] Ibid [7]
Despite accepting that the Applicant also sustained “a psychiatric injury as a consequence of the accident”, the Respondent submits the accident was not the cause of any “psychiatric problems” she may well have suffered in 2019 and beyond and submits they were caused by “other factors”.[15] The Applicant therefore complains that the Respondent’s case regarding her psychiatric injury is “confused and confusing”.[16]
[15] Ibid [8]-[9].
[16] Applicant’s written closing [A88]-[A94].
In my view, whilst there was considerable dispute over all these matters, the real difficulty in this case concerned the assessment of the Applicant’s future economic loss in circumstances where she was relatively young at the time of the accident, was working part-time and studying at university, and had not yet set a course in life. The assessment of the adverse level of impact of her injuries arising from the accident was further complicated by pre-existing mental health issues and the limited medical evidence about that condition and its probable effects and the limited evidentiary basis for comparing her behaviour and personality before and after the accident, and her pre-accident earning capacity.
The Applicant claims damages in the amount of $715,005 (including interest) plus costs as follows:[17]
[17] Ibid [B575].
Non-economic loss  $17,680 (ISV 25)
Past loss of earning capacity  $30,400

Past loss of superannuation  $2,888
Future loss of earning capacity  $435,488
Future loss of superannuation  $52,258

Past medical and out-of-pocket expenses  $2,991
Future medical treatment  $50,000
Future services and equipment  $120,000
Interest  $3,300
Total  $715,005
PART B: RELEVANT LEGAL PRINCIPLES

Statutory regime for personal injury damages arising from motor accidents
At common law, the fundamental principle in assessing damages for personal injury is to award such monetary compensation as will restore the injured person to the position they would have been in if they had not sustained the negligently caused injury, so far as money can do. The recoverable damages usually comprise three sorts of loss: non-pecuniary (ie pain and suffering); loss of earning capacity; and actual financial loss, referred to as special damages, for medical and rehabilitation expenses, medications and the like.
Because the process is notoriously imprecise and incapable of arithmetic calculation,[18] all Australian jurisdictions have enacted legislation modifying the damages that may be awarded for personal injury in various circumstances including for motor accidents. In South Australia, Part 8[19] of the Civil Liability Act 1936[20] modifies the applicable common law principles where damages are claimed for a “personal injury”[21] arising from a “motor accident”[22] (whether caused intentionally or unintentionally).[23]
[18] Todorovic v Waller (1981) 150 CLR 402 at 412 per Gibbs CJ and Wilson J.
[19] Headed “Damages for personal injury”.
[20] Referred to below for convenience as the Civil Liability Act.
[21] Defined in s 3 as “bodily injury including mental harm”; with “mental harm” defined as meaning “impairment of a person’s mental condition”.
[22] As defined in s 3 of the Civil Liability Act.
[23] Section 51(a) which was inserted into the Civil Liability Act by s 29 of the Law Reform (Ipp Recommendations) Act 2004 (the Ipp Amendments and commenced on 1 May 2004).
Despite the statutory modifications to the assessment of damages, the common law principles still apply to important aspects of the question of liability and inform the concepts of personal injury law employed by the legislation. Therefore and most fundamentally, the burden still lies on the injured person to prove the nature and extent of the injury and loss for which he or she seeks damages as a result of the respondent’s negligence. A respondent still bears the burden of proof for matters in mitigation of damages.[24]
[24] However, both parties’ burdens of proof are modified by s 56A(4), as discussed below [78]-[83].
Sections 34 and 35 of the Civil Liability Act should not be overlooked. Specifically, in this case, in determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.[25] In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.[26]
[25] Section 34(2).
[26] Section 35.
The enactment of the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 (the 2013 Amendments) made significant amendments to Part 8 of the Civil Liability Act, further restricting the recovery of damages for personal injury arising from motor accidents occurring on or after 1 July 2013.[27] These amendments were part of a package of legislative reforms that introduced a new scheme for catastrophic injuries caused by motor vehicle accidents in South Australia. This scheme is not relevant to the Applicant’s claim for damages for her personal injuries in this proceeding.[28]
[27] That is the commencement date for the amendments to the Civil Liability Act as provided by s 21 of the 2003 Amendments. See also reg 4(1).
[28] The 2013 Amendments also amended the Motor Accident Commission Act 1992 and the Motor Vehicles Act 1959.

Accordingly, the Applicant’s damages are to be assessed in accordance with Part 8 and the regulations made under s 76 of the Civil Liability Act, that is the Civil Liability Regulations 2013 (the Regulations).
Personal injury arising from an MVA motor accident
As part of the 2013 Amendments, the definition of a “motor accident” in s 3(1) of the Civil Liability Act was amended to include “is caused by or” before “arises out of” so that the current definition is “an incident in which personal injury is caused by or arises out of the use of a motor vehicle”.[29] In the second reading of the Motor Vehicle Accidents (Lifetime Support Scheme) Bill (the Second Reading of the Bill) in the Legislative Council on 9 April 2013, the purpose of this amendment was explained so as “to better align with” the Motor Vehicles Act 1959.[30]
[29] Emphasis supplied.
[30] South Australia, Parliamentary Debates, Legislative Council, 9 April 2013, 3624.
The 2013 Amendments also introduced a new subsection (2) after s 3(1) as follows:
(2)For the purposes of this Act, personal injury will arise from a motor accident if the personal injury is caused by or arises out of the use of a motor vehicle.
Since liability was not in issue, the application of Part 8 of the Civil Liability Act and the Regulations to the assessment of the Applicant’s claim for damages was uncontroversial in this proceeding. There was therefore no need to consider the practical effect of these amendments, if any.
The 2013 Amendments also introduced the new concept of an “MVA motor accident”: that is, “a motor accident where the motor vehicle is a motor vehicle as defined in the Motor Vehicles Act 1959.”[31] This definition distinguishes between motor accidents where the motor vehicle is defined as such under the Motor Vehicles Act 1959 and other motor vehicles (such as a vehicle operated on a railway, tramway etc) so that damages for non-economic loss for personal injuries arising from an MVA motor accident are now addressed by the new provisions in s 52(3) to (8).[32]
[31] Section 3(1).
[32] Other accidents (ie either motor accidents that do not involve a motor vehicle as defined under the Motor Vehicles Act 1959 or are not motor accidents within the meaning of s 51(a)(ii) of the Civil Liability Act) must be assessed under s 52(2) of the Civil Liability Act.
Damages for non-economic loss
Damages may only be awarded for non-economic loss if the injured person’s ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days or medical expenses of at least the prescribed minimum have been reasonably incurred in connection with the injury.[33] “Non-economic loss” is defined in terms of the traditional common law heads of damage as follows: [34]
(a)     pain and suffering; or
(b)     loss of amenities of life; or
(c)     loss of expectation of life; or
(d)     disfigurement;
[33] Section 52(1) of the Civil Liability Act.
[34] Section 3..
This has been the case since the Ipp Amendments commenced on 1 May 2004. There was no issue in this case about the satisfaction of these statutory preconditions to an award for non-economic loss.
Injury Scale Values and item numbers
The 2013 Amendments introduced a new scheme for the assessment of MVA motor accidents requiring an injured person’s total non-economic loss to be assigned a numerical value on a scale running from 0 to 100, referred to as an “injury scale value” and defined as an “ISV” in the Regulations (ISV).[35]
[35] Section 52(3)(a); reg 3.
The 2013 Amendments constrain damages for non-economic loss in three further ways compared to the previous statutory scheme.
First, by providing a threshold for damages for non-economic loss only where the ISV exceeds 10,[36] unless the consequences of the non-economic loss are exceptional compared to other cases involving the same injury and the circumstances of a particular case are harsh.[37] Both requirements must be fulfilled for the court to exercise its discretion despite the statutory threshold not being met. The first requirement reinforces the policy intent of aligning the outcomes for cases involving the same injuries unless the circumstances of a specific case are both exceptional by comparison and harsh.
[36] Section 52(4).
[37] Section 52(5). In such case an assessment under s 52(5) must be based on an injury scale that should
rarely be more than 25% higher than the ISV that otherwise applies: s 52(6).
Secondly, if the ISV exceeds 10, damages for non-economic loss are to be calculated by reference to the ISV and the significantly less generous amounts specified in s 52(3)(c) of the Civil Liability Act than those that apply to non-MVA motor accidents under s 52(2).
Thirdly, by the way in which the court must assess the ISV by reference to rules as follows.
That is, in assessing the ISV, the court must[38] apply any rules prescribed by the Regulations.[39]  As such the prescribed rules are an essential feature of the legislative reform for the assessment of damages introduced to provide strict guidance on how to fix the ISV for any injury, with the obvious policy object of promoting consistency in damages assessments for similar injuries and fairness between the outcomes for injured persons.
[38]   Emphasis supplied.
[39]   Section 53(3)(b). Regs (4)(1)(a) and 6(1) reiterate this fundamental principle. The general requirements
for these regulations are provided for by the insertion into the Civil Liability Act of a new Part 9 Division 13. In this division, s 76 provides that the regulations will prescribe the requirements for medical examinations and assessments of injuries, the rules for determining an ISV, the rules to apply for multiple injuries, the provision of advice or evidence or reports on matters relevant to the assessment of damages or liability for the injury by accredited health professionals and a system for the accreditation of health professionals in connection with such evidence or advice.
Accordingly, it is expressly provided in the rules that the court must in assessing the ISV for an injury, have regard to the ISVs given to cases involving the same or similar injuries and assess the ISV according to the rules prescribed by the Regulations.[40] That is not possible in this case because there are no cases that have yet been determined.
[40] Reg 4(1).
As contemplated by s 76 of the Civil Liability Act, reg 6(1) identifies the rules under which the Court must[41] assess the ISV for an injury as those set out in Part 2 of the Regulations and Schedule 1.
[41] Emphasis supplied.
The Applicant submitted that regs 6(1) and 6(2) are “contradictory in so far as reg 6(1) mandates that a court must determine the ISV according to Schedule 1 and Part 2 while reg 6(2) only requires that it consider Schedule 1 for the specified injuries.”[42]I do not find any contradiction between Schedule 1 providing both the mandatory rules under which the court must assess the ISV and the ISV range to be considered in assessing the ISV for any particular injury. I read reg 6(2) as referring to the range of ISVs the court is to consider because it must have regard to Schedule 1.
[42] Applicant’s written closing [B282].
There is, however, a possible incoherence in so far as Part 4 (Assessment of motor vehicle injuries) is not expressly provided to be part of the rules under which a court must assess the ISV for an injury despite that part dealing with the fundamental requirements for examinations and assessments of injured persons, and the reports to be provided by accredited health professionals giving opinions as to the applicable ISV item number, and other expert opinions relevant to an injury. Practically, this is resolved by a contextual reading of the mandatory requirement in reg 4(2) that an ISV assessment must not be undertaken until the injury has stabilised and a medical assessment of the injured person has been undertaken by an accredited health professional and report provided under reg 23, effectively incorporating by implied reference the requirements provided for these matters in Part 4.[43]
[43] Emphasis supplied. Reg 16 also refers to medical reports.
Curiously, reg 4(3)(c) expressly provides that a court may determine that a medical assessment by an accredited health professional is not required. Other than in the circumstances prescribed in reg 4(3)(a) and (b),[44] when and why this might be appropriate is not clear. Further, the apparent inconsistency with the mandatory[45] requirement that there be a medical assessment and reg 23 report before any ISV assessment can be undertaken, creates another incoherency in the rules. This was not problematic here in the Applicant’s case because there were multiple reg 23 reports in evidence before me.
[44] That is, where there is no qualified accredited health professional to undertake the assessment or the insurer and the injured person reach an agreement that such an assessment is not required.
[45] Emphasis supplied.
Schedule 1 – Ranges of Injury Scale Values
In assessing the ISV for an injury mentioned in the injury column in the table in Schedule 1, a court must consider the range of ISVs stated in the Schedule for the injury.[46] Schedule 1 classifies in nine parts (and some divisions in the parts) the injuries arising out of an MVA motor accident by nature (such as body part or as pure mental harm) and severity of injury and a unique ISV item number, providing a “range” of ISVs for each ISV item number. The ISV “range” for an injury is defined as “the range of the ISVs for the injury set out in Schedule 1”.[47] It is expressly provided that the range of ISVs for an injury reflects the level of adverse impact of the injury on the injured person.[48]
[46] Reg 8(1).
[47] Reg 3.
[48] Reg 8(2). Emphasis supplied.
Practically, the first step for a court in assessing an ISV is to identify the injury and the corresponding ISV item number. This is to be done with the assistance of a reg 23 medical report after a medical assessment.
By way of illustration, injuries in Part 6 of Schedule 1 (Orthopaedic Injuries), Division 3 (Shoulder Injuries) are assigned ISV item numbers between 90 and 93 with mutually exclusive ISV ranges between 0 and 50:
·Item number 90 for an extreme shoulder injury (ISV range 31 to 50)
·Item number 91 for a serious shoulder injury (ISV range 16 to 30)
·Item number 92 for a moderate shoulder injury, comprising two sub-items 92.1 (ISV range11 to 15) and 92.2 (ISV range 6 to 10)
·Item number 93 for minor shoulder injury (ISV range 0 to 5)
Prescription of the range of ISVs for an ISV item necessarily constrains compensation for the level of adverse impact to the specified ISV range for a single injury.[49] As such, Schedule 1 to the Regulations provides for proportionality between different injuries by prescribing different ranges of ISV. For example, compare the ISV range for central nervous and head injuries (ISVs of 0 to 100 for all relevant ISV item numbers) to wrist injuries (ISVs of 0 to 40 for all relevant ISV item numbers).
[49] Except where there are multiple injuries, there are rules for exceeding the maximum of the ISV range
for an ISV item number for the dominant injury.
The court in assessing the ISV for an injury must[50] consider the range of ISVs for that injury provided in Schedule 1.[51] Only if an injury is not mentioned in Schedule 1, can a court have regard to the “ranges” prescribed in Schedule 1 for other injuries of comparable severity.[52]
[50] Emphasis supplied.
[51] Reg 8(2), reading reg 6(2) as I do to refer to the ranges of ISVs the court is to consider because it must
do so.
[52] Reg 6(3).
The court may have regard to a non-exhaustive list of other matters in assessing an ISV for a particular injury as provided for in reg 9. Relevantly, in assessing an ISV, a court must[53] have regard to the provisions relevant to using Schedule 1 that are set out in Schedule 1 in addition to the ranges of ISV. For example, for ISV item number 92.2 for a “moderate shoulder injury,” “examples” and “comments” are provided for in Schedule 1 as follows:
[53] Emphasis supplied.

92

Moderate shoulder injury

92.2

Comment

An ISV under this item will be appropriate if there is a whole person impairment for the injury of less than 10%

6

10

Examples of the injury

     •     Traumatic adhesive capsulitis with discomfort, limitation of movement and symptoms persisting or expected to persist for about 2 years

     •     Permanent and significant soft tissue disruption, for example, from tendon tears or ligament tears

     •     Nerve palsies from which the injured person has made a good recovery

     •     Painful persisting dislocation of the acromioclavicular joint

     •     An injury to the sternoclavicular joint causing permanent, painful instability

Comment about this level of ISV

     •     An ISV at or near the bottom of the range will be appropriate if the injury is to the non‑dominant upper limb

     •     An ISV at or near the top of the range will be appropriate if the injury is to the dominant upper limb

In the case of moderate shoulder injury with an ISV item number of 92.2, “whole person impairment” is made relevant by its reference under the heading “Comment” and regard must be had to it by a court under reg 9(2)(a). This concept is defined as follows:
whole person impairment, in relation to an injury, means an estimate, expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured person's overall ability to perform activities of daily living, as described by AMA 5, other than employment.
Further, reg 10 expressly provides that the extent of whole person impairment is an important consideration, with the qualification that it is not the only consideration affecting the assessment of an ISV. Regulation 16 addresses the mandatory requirements for a medical report stating a whole person impairment. Regulation 17 provides that greater weight is to be given to assessment based on AMA 5[54] other than for assessments of scarring and mental harm.
[54] AMA 5 means the 5^th edition of the Guides to the Evaluation of Permanent Impairment published by the
American Medical Association.
Similarly for ISV item number 92.2, in considering the range of ISVs for a moderate shoulder injury, the court must have regard to the examples of the injury provided and whether the injury is to the dominant or non-dominant upper limb.
Reg 9(2) provides that in assessing an ISV, a court may[55] have regard to other matters to the extent they are relevant in a particular case. Reg 9(3) identifies the following matters to which a court may have regard, without limiting what may be relevant:
[55] Emphasis supplied.
(3)Without limiting subregulation (2), a court may have regard to—
(a)the injured person's age, life expectancy, pain, suffering and loss of amenities of life; and
(b)the effects of a pre‑existing condition of the injured person; and
(c)difficulties in life likely to have emerged for the injured person whether or not the injury happened; and
(d)with respect to assessing an ISV for multiple injuries, the range for, and other provisions of Schedule 1 in relation to, an injury other than the dominant injury of the multiple injuries; and
(e)the extent to which the injured person has refused treatment that could lead to a significant improvement in the level of impairment caused by that injury or condition, reasons for any refusal of treatment, and any evidence provided by a health professional as to the likely effect of treatment.
Plainly, the provisions in Schedule 1 are to be given primacy over other relevant matters the subject of reg 9(3) because a court is directed that regard to the former is mandatory whereas regard to the latter is not.
For a single injury, there is no rule providing that a court may exceed the maximum ISV in the range prescribed for the injury by its ISV item number.[56]
[56] Unlike s306O(2) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
Multiple Injuries
Where there are multiple injuries, a court must consider the range of ISVs for the dominant injury.[57] The dominant injury is the injury of the multiple injuries having the highest ISV range[58] reflecting the level of adverse impact of the injury on the injured person. To reflect the appropriate level of adverse impact of multiple injuries on an injured person, a court may assess the ISV for multiple injuries as being higher:
·in the range of ISVs for the dominant injury than it would assess for the dominant injury only;[59] or
·higher than the maximum ISV for the dominant injury if the court considers the level of adverse impact so severe that the maximum IVS for the dominant injury is inadequate.[60]
[57] Reg 11(1).
[58] Section 76(5): if the highest range for 2 or more of the injuries is the same, the dominant injury is the
one the court selects.
[59] Reg 11(2).
[60] Reg 12(1) and (2). Emphasis supplied.
Other than the following note to reg 11(2) (which reflects common sense and is borne in mind in assessing the ISV for multiple injuries), the Regulations provide little guidance as to when it would be appropriate to uplift an ISV beyond the maximum ISV for the dominant injury.
This regulation acknowledges that—
(a) the effects of multiple injuries commonly overlap, with each injury contributing to the overall level of adverse impact on the injured person; and
(b) if each of the multiple injuries were assigned an individual ISV and these ISVs were added together, the total ISV would generally be too high.
However, a court is expressly constrained in assessing the ISV for multiple injuries in two ways. First the ISV must not be more than 100 (ie the scale maximum). Secondly, it should rarely[61] be more than 25% higher than the maximum ISV for the dominant injury.[62] Written reasons must be given by a court for an increase more than 25%,[63] although my expectation would be that reasons would be given for an ISV assessment in any event.
[61] Emphasis supplied.
[62] Reg 12(3).
[63] Reg 12(4).
The Applicant submits the following summary of McMeekin J in Mills v BHP Coal Pty Ltd[64] as to the application of similar provisions concerning multiple injuries in the context of workplace injuries in Queensland is of assistance, rejecting the Respondent’s submission that the Queensland precedents for motor vehicle assessment are not appropriate guidance because there are important distinctions.[65]
(a)   the dominant injury is to be determined having regard to the range of ISVs applicable to the injury;
(b)   determine ISV within the range of ISVs provided for the injury and determine whether the maximum ISV in the range adequately reflects the adverse impact of all the injuries (“the maximum dominant ISV”);
(c)   if the maximum dominant ISV is not sufficient, then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV;
(d)   in arriving at the appropriate ISV, the court is to bear in mind that the effects of multiple injuries commonly overlap;
(e)   in assessing an ISV for multiple injuries, the range for, and other provisions of Schedule 9 in relation to an injury other than the dominant injury of the multiple injuries can be considered;
(f)   the overriding purpose of the ISVs prescribed – to reflect the level of adverse impact of the injury on the injured person;
(g)   the court is guided by the provisions of Schedule 9 but is not necessarily limited to those factors and a court can have regard to other matters relevant to the particular case e.g., age, insight, life expectancy, pain, suffering and loss of amenity;
(h)   an important consideration is the extent of the whole person impairment.
[64] [2017] QSC 184 at [5].
[65] Applicant’s written closing [B295]-[B297]. The case concerned the determination of general damages for pain and suffering under s 306P of the Workers’ Compensation and Rehabilitation Act 2003 and s 130 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld). There is a similar scheme for the assessment of personal injury damages in Queensland and the rules for assessing the ISV for multiple injuries is in substantially the same form as regs 11 and 12 of the Regulation.

As a summary of the relevant rule, it is uncontroversial save for two matters of obvious importance. First, the summary does not mention the important requirement that the level of adverse impact must be “so severe” that the maximum ISV is inadequate[66] to reflect the level of adverse impact before a court can proceed to assess an ISV above the maximum. Secondly, since the guidance provided to the court under the South Australian scheme for MVA accidents is stricter than the Queensland scheme in material respects,[67] it is important not to misconstrue what is meant by stating that the overriding purpose of the ISVs prescribed is to reflect the level of the adverse impact on the injured person. In my view, the prescription of ISV ranges to injuries specified in Schedule 1 of the Regulations substantially constrains a court in assessing an ISV outside the range of ISVs for an ISV item number so as to objectively reflect the adverse level of impact of an injury on an injured person, whether there be a single or multiple injuries. Indeed, the policy underlying the South Australian scheme for MVA motor accidents is to significantly reduce the amount and the circumstances in which an injured person will be entitled to compensation for personal injuries caused by or arising from an MVA motor accident.
[66] Not “insufficient” as in the summary.
[67] For example, there is no equivalent to s 306O of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) in the South Australian Civil Liability Act and Regulations or s 61(2) in the Civil Liability Act 2003 (Qld).
Examinations and assessments and written reports
A court’s assessment of an ISV is underpinned by independent accredited medical expert opinions given in written reports in accordance with reg 23 following examinations of the injured person and assessments undertaken in accordance with reg 20. The report must address the diagnosis, prognosis, injury stability, consistency with the stated cause, effect on any pre-existing or subsequent injury and the extent to which it has been made worse, whether based on AMA 5[68] or other criteria, the GEPIC rating for pure mental harm, the whole person impairment and the ISV item number.[69]
[68] Reg 3.
[69] The form of a reg 23(1) report is determined by the designated Minister: reg 23(2.)
Plainly, reg 23 reports giving an opinion on the ISV item number for an injury based on clinical examination and assessments by accredited health professionals provide the objective starting point for, and thereby constrain, a court in assessing the ISV. The prescription of the information to be provided to accredited health professionals for the purposes of an ISV assessment and the standardisation of the matters to be addressed in such reports reflects a policy objective that there be a disciplined and rational basis for the consideration of expert opinions.
The importance and use of reg 23 reports is explained in the Second Reading of the Bill as follows: [70]
Objective medical evidence will be used to place the injury within a severity point range while consideration of the differing impact of an injury on the particular individual will determine the final ISV within the range. The ISV table provides a mechanism for the court (or the respective parties pre-court) to determine the impact of an injury on an individual following a medical impairment assessment by an accredited medical expert.
…
These are intended to reduce bias, avoid excessive numbers of costly reports, and increase quality and objectivity of reports.
[70] South Australia, Parliamentary Debates, Legislative Council, 9 April 2013, 3624 at 3627 and 3628.
Ultimately the court is responsible for determining the assignment of the ISV to an injury within the range of the ISV number assessed by a medical expert but within the confines of the statutory framework of the Civil Liability Act and Regulations. Generally and practically, a court should give primacy to and be reluctant to depart from the unchallenged opinion of an accredited health professional as to an ISV item number given in a reg 23 report without good reason. Where there is conflicting expert evidence, the court will determine the applicable ISV by assessing all the facts, the credibility of the witnesses and the most compelling expert opinion in the circumstances found.
Pure Mental Harm
The Civil Liability Act and the Regulations draw a distinction between consequential and pure mental harm.
As regards the Applicant’s claim for personal injury in this case, damages for mental harm may only be awarded if the injured person was physically injured in the accident and the harm consists of a recognised psychiatric illness.[71]
[71] Section 53(1)(a) and (2).
Pure mental harm is addressed in Part 2 of Schedule 1 of the Regulations comprising four ISV item numbers for extreme, serious, moderate and minor psychiatric impairment with corresponding ISV ranges of 41-65, 26-40, 8-25 and 0-7. Part 2 of Schedule 1 is prefaced with a general comment to which a court must have regard in assessing the ISV for pure mental harm pursuant to reg 9(2): “This Part includes references to rating on the psychiatric impairment scale, Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC).”
A “GEPIC rating” for pure mental harm is defined in reg 3 as: “a rating in accordance with the GEPIC for the psychiatric impairment caused by the mental harm”. As in Schedule 1, “GEPIC” is defined to mean:[72]
The guide to the evaluation of Psychiatric Impairment for Clinicians prepared by MWN Epstein, G Mendelson and NMH Strauss as published in the Victorian Government Gazette on 8 May 2008.
[72] Reg 3.
The Applicant submits “The commentary dealing with the applicability of each of the [GEPIC] categorisations [in Schedule 1] is abbreviated and vague.”[73] I do not agree. Contextually read, the four ISV item numbers for pure mental harm distinguish between the severity of the injury (denoted by a specific ISV range) on the basis of mutually exclusive GEPIC ratings. The prescribed form of the opinion as to a GEPIC rating in a reg 23(1) report as determined by the designated Minister under reg 23(2) is consistent with the obvious policy objective that a medical expert[74] is constrained in their opinion as to the applicable ISV item number by their assessment of the GEPIC rating, bearing in mind it is a rating to be determined in accordance with the GEPIC. Dr Schirripa’s oral evidence about his GEPIC training to this effect[75] is therefore unsurprising and reinforces my view that a court should be reluctant to depart from the range of ISVs within an ISV item number for pure mental harm where there is an expert medical opinion as to a GEPIC rating given under reg 23. I accept that there is little guidance to a court where there is no medical expert opinion as to the applicable GEPIC rating but that was not an issue in this case.
[73] Applicant’s written closing [B329]-[B333].
[74] That is, for a GEPIC assessment, by the definition in reg 3, a person duly registered to practise in the medical professional and holding a specialist registration as a psychiatrist who has successfully completed a course of training in the use of the GEPIC under a scheme determined by the Minister for the purposes of the Regulations.
[75] T435-6.
Regulation 14 provides rules for assessing pure mental harm as follows:
14—Pure mental harm
(1)     This regulation applies if—
(a)a court is assessing an ISV; and
(b)a GEPIC rating for psychiatric impairment of an injured person is relevant under Schedule 1.
(2)     A GEPIC rating may be accepted by the court only if it is—
(a)     an assessment of pure mental harm; and
(b)     assessed by a medical expert; and
(c)     provided to the court in a GEPIC report.[76]
[76] Emphasis supplied.
The application of a GEPIC rating is somewhat awkwardly addressed by this wording in so far as it raises the question as to when a GEPIC rating will or will not be relevant. Contextually read having regard to Part 2 of Schedule 1 (the only part that deals with pure mental harm), the given examples and comments all refer to GEPIC ratings. Since by reg 9(2)(a) it is mandatory for a court to have regard to such provisions in Schedule 1, and the classes of GEPIC ratings for each ISV item number are mutually exclusive, the GEPIC rating appears to always be a relevant matter for a court to have regard to in assessing pure mental harm unless there is not one at all. This latter possibility is contemplated by reg 14(2) in so far as effectively a GEPIC rating cannot be accepted by the court unless it is an assessment of pure mental harm by a “medical expert”[77] in a GEPIC report.
[77] Defined in reg 3 to mean:
… in relation to an assessment of a GEPIC rating, means a person—
(a)who is registered under the Health Practitioner Regulation National Law—
(i)to practise in the medical profession; and
(ii)holding specialist registration as a psychiatrist; and
(b) who has successfully completed a course of training in the use of the GEPIC under a scheme determined by the Minister for the purposes of these regulations
The Applicant submits that the natural and logical interpretation of reg 14 is that a psychiatric injury may be assessed in the absence of a compliant GEPIC report and, further, that reg 14 does not provide that a GEPIC rating must be accepted by the court if all of the three pre-conditions are satisfied.[78] The former proposition is uncontroversial. However, whilst I also agree with the second proposition advanced by the Applicant as a matter of logic, given the importance of a GEPIC rating specified in Schedule 1, a court would need to have good reason to depart from an opinion given by a medical expert as to a GEPIC rating for the psychiatric impairment of an injured person in a compliant GEPIC report in assessing the ISV for mental harm.
[78] Applicant’s written closing [B321]-[B322].
In my view the point is not whether a GEPIC rating is final and determinative.[79] The scheme of the Civil Liability Act and the Regulations does not require any matter that a court must or may have regard to in assessing an ISV for an MVA motor accident injury to be determinative. Rather, certain matters that the court must have regard to are to be given primacy because of the fundamental importance of there being consistency between cases involving the same injuries based on an objective medical basis for the court’s assessment of the ISV and the injured person’s damages in all the relevant circumstances.
[79] Applicant’s written closing [B336].
Consequential mental harm
Where an injured person suffers consequential mental harm following a physical injury, the court must treat the consequential mental harm merely as a feature of the physical injury.[80]
[80] Reg 13.
Pre-existing conditions
Where a pre-existing condition may be relevant to the assessment of an ISV, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.[81]
[81] Reg 15.
The ‘eggshell skull” rule that the tortfeasor must take the injured person as he or she finds them, both physically and psychologically, still applies.
Damages for economic loss
Although the nature of the loss is the same, damages for economic loss are assessed in two stages: firstly, past economic losses being the actual loss of wages that occurs to the time of trial that can be more or less precisely ascertained and, secondly, future economic loss having regard to the Applicant’s proved condition at the time of trial.[82]
[82] Graham v Baker (1961) 106 CLR 340 at 346-7 per Dixon CJ, Kitto and Taylor JJ.
Fundamentally, at common law when liability is established, damages are awarded to the extent that any reduction in earning capacity is or may be productive of economic loss.[83] Both elements must be established: the injured person must prove both what capacity has been lost and the likely economic consequences of such lost capacity.[84]
[83] Ibid.
[84] Husher v Husher (1999) 197 CLR 138 at [6]-[7] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
The assessment of the likely economic consequences from the destruction of the injured person’s future earning capacity requires a comparison between what he or she would likely have earned if not injured and what he or she is likely to earn injured. In other words, a court in making the comparison between the economic benefit to the injured person from exercising their earning capacity after and before the injury[85] is forming a view as to “what will be and what would have been”.[86]
[85] Penrith City Council v Parks [2004] NSWCA 201 at [3] per Giles JA.
[86] Mallett v McMonagle [1970] AC 166 at 176 as cited in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 640.
In this regard, there is an important distinction in the court’s approach to proof of a fact as a matter of history and proof of events that allegedly would have occurred but cannot now occur or allegedly might occur.[87] For example, the injured person must prove that he or she has suffered a diminution in earning capacity and that this diminution is productive of financial loss, on the balance of probabilities. Both are to be assessed on an all or nothing basis, because the fact is accepted as having occurred if the court is satisfied it did occur on the balance of probabilities (or vice versa).[88]
[87] Malec, ibid pages 642-643.
[88] Battunga Country Lions Club v Paues [2021] SASCA 72 at [41].
By contrast, the hypothetical question of what a plaintiff would have been capable of earning if not negligently injured involves an evaluation of probabilities and “possibilities”[89] and speculation to some extent because the hypothesis is false (because the plaintiff has been injured) and the future or hypothetical effect of a plaintiff’s injury is not susceptible to definite or scientific proof. Accordingly, the award of damages takes into account and reflects the court’s assessment of the degree of probability or chance that an event would have occurred or might occur. The approach is the same whether the event would have occurred before or might occur after the assessment of damages takes place.
[89] Brennan and Dawson JJ preferred not to use the term probability to describe the possibility of occurrence of a situation where its possibility of occurring is minimal. Malec op cit. page 640.
Further, once a loss of earning capacity has been established by an injured person, the onus of demonstrating a failure to exploit any residual earning capacity lies on the respondent, taking into account all of the circumstances that apply to the injured person.[90] These are both questions of fact to be established on the balance of probabilities by the trier of fact.[91]
[90] South Western Sydney Local Health District v Sorbello [2017] NSWCA 201.
[91] McArthur v Mercantile Mutual Life Insurance Coy Ltd [2001] QCA 317 at [62] per Muir J.
Statutory modifications for economic loss
There is a threshold for damages for loss of earning capacity and the total of any such award is capped.
Section 54(1) of the Civil Liability Act provides that if an injured person was incapacitated for work, damages for loss of earning capacity are not to be awarded in respect of the first week of the incapacity. Section 54(2) caps total damages for loss of earning capacity at the prescribed maximum.[92] These limitations apply to damages for personal injuries arising from all accidents including an MVA motor accident.
[92] $2.2 million plus CPI.
The 2013 Amendments introduced significant modifications to the assessment of damages for economic loss for personal injury arising from an MVA motor accident by providing that any entitlement to such damages is subject to the provisions of a new s 56A.[93]
[93] Section 56A(1).
Consequently, a new threshold and exception to that threshold applies to an award of damages for the “loss or impairment of future earning capacity” based on the applicable ISV as assessed as follows:[94]
(2)A person who suffers personal injury arising from an MVA motor accident may only be awarded damages for loss or impairment of future earning capacity if the injury scale value that applies under the regulations in relation to the injury exceeds 7.[95]
(3)However, a court may award damages in a case that would otherwise be excluded by operation of subsection (2) if satisfied—
(a)that the consequences of the personal injury with respect to loss or impairment of future earning capacity are exceptional; and
(b)that the application of the threshold set by that subsection would, in the circumstances of the particular case, be harsh and unjust.
[94] Section 56A(2)-(3).
[95] Emphasis supplied.
As for the exception to the threshold for non-economic loss, both requirements of s 56A(3) must be met.
Proof of future economic loss
The 2013 Amendments also introduced significant changes to the common law basis for proving future economic loss by requiring a court not to take into account possibilities where the court is unable to evaluate the chance of their occurring or where the court evaluates there being less than a 20% chance of their occurring. Previously, a court was required to attempt to assess future economic loss no matter how difficult that may have been in the circumstances of a particular case.
Section 56A(4) now provides:
(4)In assessing damages for loss or impairment of future earning capacity in relation to personal injury arising from an MVA motor accident (other than with respect to a discount that would, apart from this section, be made for the usual vicissitudes of life)—
(a)a court must not take into account—
(i)any inference as to a circumstance in respect of which the court is unable to evaluate the chance of it occurring; or
(ii)any inference as to a circumstance that the court evaluates as having less than a 20% chance of occurring; and
(b)an award of damages must be arrived at by taking into account the several circumstances on which a court may rely, the chance of each occurring, and the combination of those chances; and
(c)a court must, when making an award of damages, state—
(i)the circumstances that have been taken into account for the purposes of the award; and
(ii)the inferences that the court has drawn from those circumstances; and
(iii)the court's evaluation of the chances of each circumstance relied on occurring; and
(iv)its determination of the resultant award of damages.
Whilst the language of these provisions is unique to this legislation in referring to “inferences as to circumstances” it is apparent that these provisions modify the common law principles for the assessment of future possibilities considered in the seminal passage in the High Court authority Malec v Hutton:[96]
…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. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages.
[96] (1990) 169 CLR 638 at 643 per Deane, Gaudron and McHugh JJ.
Using the language of Malec v Hutton, s 56A(4) provides that the court must only take into account future events (ie “inferences as to circumstances”) where the court is able to evaluate the chance of that future event occurring and evaluates the chance as being 20% or more, effectively prescribing that chances of less than 20% are to be regarded as speculative and ignored.
The Applicant submitted that s 56A(4) applied to the assessment of residual earning capacity.[97] I concur because the assessment of residual earning capacity is of course implicit in the assessment of an injured person’s loss of earning capacity, to which 56A(4) clearly applies, although without discerning between positive and negative contingencies (save for the usual vicissitudes of life). I disagree, in so far as it may be suggested by the Applicant that it only applies to matters that the Respondent seeks to prove in mitigation of damages, such as positive contingencies or the Applicant’s failure to mitigate. The clear intention of s 56A(4) is to direct a court, in undertaking the notoriously imprecise and difficult exercise of assessing loss of future earning capacity, to require relevant circumstances to be proven with greater certainty than under the common law and be transparent in doing so. For example, this means that a court will need to be satisfied that without the accident, the Applicant’s prospects of increased earnings from completing higher education or promotion would have been greater than 20%.
[97] Written closing [B430].

That said, section 56(4) expressly provides that it does not apply to any discount for the usual vicissitudes of life. In my view, the legislative intention in expressly preserving this discount is to further reduce an injured person’s damages award for future economic loss by distinguishing between the positive and negative contingencies that must be proved with reasonable precision in accordance with s 56A(4) and the usual 10-15% reduction for the usual vicissitudes of life.[98]
[98] Battunga op cit at [79].
When the court has reached a figure for loss of future earning capacity in accordance with s 56A(4) and the discount for the usual vicissitudes of life, and applied the prescribed discount of 5% for calculating the present value of the future losses,[99] it must then apply a further 20% discount.[100] This 20% discount is to be applied to both past and future economic loss.
[99] Section 55.
[100] Section 56A(5).
The effect of loss or impairment on superannuation is limited to the amount an employer would be required to pay (currently 9.5% and to be increased to 12% from 1 July 2025 under s 19 of the Superannuation Guarantee (Administration ) Act 1992 (Cth)) .[101]
PART C: THE TRIAL AND EVIDENCE
[101] Section 56A(6) and (7).
The Trial
The trial took place over six days during the course of which the Applicant gave oral evidence, as did her current partner, an old friend and two of her workplace supervisors. Independent medical experts Drs Schirripa and Bastian and treating orthopaedic surgeon Dr Sandow were called by the Applicant and cross-examined. I gave leave to the Respondent to interpose in the Applicant’s case his only witness, Dr Wyatt, who was also cross-examined.
A joint tender book of documents was prepared for use at trial comprising reports from independent and treating medical experts, treating clinical records, clinical notes and correspondence, radiological investigations, the Applicant’s taxation records, sick certificates, educational and employment records, her injury claim form, photographs of her injuries and netball records. Most of the documents were tendered during the course of trial and identified as separate exhibits.
The authors of some of the medical reports tendered were not called as witnesses, nor were any of the Applicant’s treating general practitioners or psychologist. The Applicant changed general practitioners many times between 2014 and 2021 and changed to Dr Lynton Bentley’s practice (Florey Healthcare) immediately after the accident so there was no treating general practitioner with oversight of the Applicant’s health issues before and after the accident or of all her health issues. This was an important evidentiary gap that has made assessment of the Applicant’s mental condition before and after the accident particularly difficult.
Because all the general practitioners’ reports and clinical notes were provided to the independent medical experts and the subject of cross-examination of the Applicant, I received them into evidence, generally without objection from the Respondent. The reports of two expert psychiatrists, a psychologist, a vocational rehabilitation consultant and an occupational therapist warrant specific comment.
Associate Professor Brinded
Associate Professor PMJ Brinded was practising as a consultant psychiatrist at the time he examined the Applicant on 21 June 2018 and prepared an ISV Medical Assessment Report for Pure Mental Harm and GEPIC Report dated 11 July 2018.[102] It gave the first independent psychiatric opinion diagnosing PTSD. He later retired and was not called as a witness. I was told there were difficulties with his availability because he lived in New Zealand, the borders were closed, and he was unco-operative.
[102] Exhibit A15.
The Respondent initially objected to the tender of his report without having the opportunity to cross-examine him. Ultimately the tender of his report was not opposed on the basis of an express reservation by the Respondent as to the weight I might attach to any opinions expressed in his report in the absence of an opportunity to test those opinions in cross-examination.[103]
[103] T75.16-.31; T433.33-.37.
Despite this reservation, the Respondent submitted that if I were to ultimately find the Applicant suffered mental harm arising from the accident, I should assess the ISV for her psychiatric injury within the range of the ISV number assessed by the Associate Professor (which coincidently was the same as assessed by Dr Schirripa despite there being two years between their assessments).
There were additional difficulties with the untested opinions expressed by the Associate Professor in his report. By the time of trial, the Associate Professor’s opinions were based on an incomplete history of the Applicant’s mental health since he did not have before him all the information that was before me nearly three years later, putting aside his reservation that the Applicant presented as a “somewhat reluctant historian” at that time.
In March 2020, some 18 months after the Associate Professor delivered his GEPIC report, Dr Schirripa expressed opinions in his first report[104] that the Applicant’s psychiatric injuries were not stable, and he was guarded about her prognosis. It was Dr Schirripa’s opinion that it was not appropriate to complete an ISV or GEPIC assessment at that time.
[104] Exhibit A11.
As a result of these difficulties, I was cautious about the opinions expressed by the Associate Professor in his report and have not relied on any opinions diverging from those of Dr Schirripa that I have accepted.
Dr Herriot
Dr Peter Herriot is a consultant psychiatrist and interviewed and examined the Applicant twice for medico-legal purposes. He did so first on 16 October 2019 and again on 2 September 2020. He prepared reports dated 23 November 2019 and 9 September 2020 following his examinations of the Applicant. He was not called to give evidence and his reports were not tendered. However, both reports were provided to Dr Schirripa, who reviewed and commented on passages from them in his reports dated 10 March 2020[105] and 8 April 2021.[106] Other than noting that these reports were prepared, and Dr Schirripa reviewed them, I did not take account of the passages of Dr Herriot’s reports cited in Dr Schirripa’s reports or attach any weight to his comments about them.
Ms Ainsley
[105] Exhibit A12 at page 28.
[106] Exhibit A14 at page 51.
On a referral from Dr Skiffington, the Applicant began attending a psychologist, Ms Emma Ainsley, for therapy on 16 October 2019, initially fortnightly, and thereafter every three weeks or so. By the time of the trial, Ms Ainsley had been treating the Applicant for 18 months. According to her report dated 11 December 2020,[107] Ms Ainsley has qualified and is registered as a psychologist with the Australian Health Practitioner Regulation Agency, the Psychology Board of Australia and the Australian Psychological Society.
[107] Exhibit A29.
Ms Ainsley is not a medical expert within the meaning of the Regulations since she does not hold a specialist registration as a psychiatrist and has not completed a course of training in the use of GEPIC under an accreditation scheme for the purposes of the Regulations.
Ultimately, Ms Ainsley was unavailable to give evidence at trial due to her own health issues.[108] After much discussion with counsel, Ms Ainsley’s report[109] was tendered and received subject to the Respondent’s objection to her expertise to express a medical opinion on the Applicant’s mental condition and a reservation as to the weight that should be attached to her opinions as the Applicant’s treating psychologist in the absence of any opportunity to cross-examine her.
[108] Exhibit R82.
[109] Exhibit A29.
The Applicant by her counsel conceded that her report was not being relied on by the Applicant for any medical opinion.[110] In closing submissions, the Applicant submitted that the Respondent elected not to cross-examine Ms Ainsley and simply allowed the tender of her report by consent.[111] I do not accept this submission as correct. The Respondent’s counsel made plain his position with regard to the admissibility and weight to be attached to Ms Ainsley’s opinions in the absence of cross-examination, depending on their relevance on all the evidence.[112]
[110] T673.8-.10.
[111] Applicant’s Closing Submissions [249].
[112] T414.31-417.10;T682.3-683.5
Ms Ainsley’s report was prepared on the basis of medical reports and clinical notes including the reports of Dr Peter Herriot (consultant psychiatrist) and Dr Boris Fedoric (rehabilitation Counsellor), which were not before me. Her report expresses opinions about her diagnosis of the Applicant’s psychiatric condition and functional impairment that are medical opinions, including by reference to opinions expressed by Drs Herriot and Fedoric. In light of the Applicant’s concession that her report is not relied on for medical opinions that are untested and rely on untested opinions of other health professionals that are not in evidence, I am unable to give her report any weight and have therefore disregarded it and any submissions made by the Applicant on the basis of her report in assessing the Applicant’s claim for damages.[113]
[113] Applicant’s Closing Submissions [A84].
Ms Ainsley’s clinical notes[114] were also tendered. The Respondent relied on these notes to submit that the litigation itself has created an additional stress on the Applicant and her mental health that can be expected to improve after it has concluded.[115] They are (as are the treating general practitioner’s clinical notes) relevant in providing context to the key issue of the Applicant’s evolving symptomatology and her understanding of her mental health issues and how best to manage them. I have relied on them for this purpose only and not for any medical opinion recorded in them, bearing in mind that the Applicant was not taken to any of these clinical notes in cross-examination nor examined on them by her own counsel.
Dr Fedoric
[114] Exhibit A79.
[115] Respondent’s written closing [71].
A report dated 1 March 2020 prepared by Dr Boris Fedoric, a vocational rehabilitation consultant, was provided to Dr Schirripa for the purposes of his third examination and assessment of the Applicant and final report, although Dr Fedoric was not called as a witness and his report not received into evidence. Since there was no express reference to or implicit reliance on Dr Fedoric’s report in Dr Schirripa’s final report, this has not caused me any difficulty in considering Dr Schirripa’s evidence.
Mr Killington
Mr Michael Killington is an occupational therapist who prepared a report of the assessment of the Applicant’s activities of daily living he conducted at the share house she lived in with Mr Geci on 8 April 2019.[116] His recommendations for services, ongoing therapy and equipment summarised in his report were confirmed in a supplementary report.[117] Both his reports were based on medical reports and instructions from the Applicant’s solicitors that are inconsistent with the factual findings I have made as to the extent of the functional impairment caused by the Applicant’s accident injuries.
[116] Exhibit A34.
[117] Exhibit A38.
Accordingly, whilst I have not attached any weight to his interpretation of expert medical evidence, I have taken into account his recommendations and costings where they accord with the functional impairment caused by the Applicant’s accident injuries I have found.
The Applicant’s Witnesses
Generally
Although the Applicant is one of five children and her parents are still living, none of her family gave evidence about the adverse impacts of her accident injuries on her. This was despite the Applicant’s sister Sarah living with her at the time of the accident and working as a radiographer at St Andrew’s Hospital, where she was taken directly after the accident, and the suggestion early in the trial that she would be called.
In light of the Applicant’s contentions that she suffered a distinct personality shift as a result of her accident injuries and the Respondent’s challenge that she exaggerated reports of her symptoms, this was unsatisfactory since no-one who gave evidence was in a position to verify her evidence (putting aside Mr Geci, the reliability of whose evidence I address below). It was particularly unsatisfactory that the Applicant’s sister Sarah was not ultimately called.
Ms Angela Plumridge
The Applicant presented as an intelligent and articulate witness, consistent with the observations of the numerous health professionals who have treated or assessed her for medico-legal purposes since the accident in 2016. Her answers were generally logical and considered. She was particularly candid in examination-in-chief in recounting detail about personal issues such as her family background, mental health and relationships.[118] There were times when she was genuinely distressed in giving evidence on sensitive topics and yet she managed well to still express herself and, in answering the questions as she did, she displayed, in my view, a significant degree of resilience in dealing with the ordinarily stressful process of giving evidence.
[118] For example, T81.4-.13 (year 5 bullying). T166.5-.28 (anger and upset at blowing team leader role).
Her general demeanour in giving evidence was consistent with the observations reported by Dr Schirripa of her mental status examination the first two occasions he examined her in February 2018 and August 2020. That is: maintaining eye contact, giving her history in an articulate and intelligent manner, her thinking organised and logical, not evasive or guarded in answering (although tearful and anxious in her interview with Dr Schirripa), affect matter of fact but cognitively alert and oriented and generally intact.[119] When he examined her in April 2021 shortly before the trial and she reported a worsening of her symptoms, Dr Schirripa reported her still as cognitively alert and oriented and able to concentrate adequately in the interview, despite being tearful, anxious and downcast.[120]
[119] Exhibit A11, page 7; Exhibit A12, page 7; Exhibit A13, page 5.
[120] Exhibit A14, pages 4 and 5.
The Applicant’s recall of the detail of events that occurred many years ago was variable. There were some matters where her recall was detailed and consistent with previous accounts she had given, such as the detail of the original trauma of the accident itself and the symptoms of her physical accident injuries. There were other matters where her recall of details, such as the precise dates she undertook certain subjects or when she received awards for netball, was poor. On a number of occasions she volunteered that her memory was not so good because she has PTSD.[121] Since I found her recall better than many witnesses and it does not fit with the evidence about the high standard of her work performance as a credit assessor, this refrain was to my mind unsatisfactory and seemed rehearsed. However, I do not make much of it, recognising this may be due to the insights into her psychiatric condition she says she has since gained from her treating psychologist.[122]
[121] T120.2-.9: T153.4-.24; T206.1; T213.36.
[122] T163.6-.8.
In cross-examination, her demeanour changed noticeably. In the absence of the obvious rapport she had established with her own counsel, the Applicant was a more difficult witness, interrogating questions instead of answering them, not directly answering other questions and at times appearing to be fashioning her answers in anticipation of the cross-examiner’s agenda.
Early on in cross-examination, her evidence about the seriousness and frustration of her right shoulder locking and seizing even when she was playing netball was a notable example. Her answer that seizing and locking were different things in her eyes was combative and her uncertainty whether she ever ceased playing because her shoulder locked unpersuasive.[123] She was then evasive in explaining what she was actually doing when cleaning that caused her shoulder to lock up and repeated instead how frustrated she felt rather than answering the question directly until I asked her to tell me what she was doing.[124] The exchange about her refusal in cross-examination to confirm her earlier evidence in examination-in-chief that morning about whether her shoulder was constantly sore, causing her to be snappy and irritable, was combative and unsatisfactory and when she finally did, her explanation as to why she then did not seek treatment for it in 2017 and 2018 was also unsatisfactory[125] and caused me to approach her evidence with some caution.
[123] T193.12-195.33.
[124] T195.34-T198.19.
[125] T205.23-T208.22.
However, I was more concerned about the general reliability of her evidence considering the material differences between her written evidence in the form of two affidavits of loss (sworn a considerable time apart in 16 April 2019[126] and 12 March 2021[127]) and the evidence that finally emerged at trial.
[126] Exhibit A5 (First Affidavit).
[127] Exhibit A6 (Second Affidavit).
As regards her incapacity for work since the injury, in her First Affidavit she deposed to attempting to return to studies in Semester 1, 2016, on a disability pathway, struggling due to pain, headaches, fatigue and psychological symptoms, but did not return to her studies in Semester 2, 2016. Her attempt to complete a subject in Semester 1 failed because she struggled with pain and discomfort from her shoulder injuries and (unspecified) psychological symptoms.
Her sworn affidavit omits her successful completion of her subjects in Semester 1 (including a distinction and credit) and her decision not to enrol in Semester 2 because she had found a full-time job and career path she was driven to focus on. It omits that she found it impractical to study part-time and work full-time and she needed the money. She had switched to working afternoon shift in Semester 1 2017 and was as a result having difficulty getting to sleep after finishing work at 10pm and waking up to study before starting full-time work again. She failed her subject because she did not do the work required and lacked interest in it.
Her First Affidavit then deposed to being only able to cope with employment as a credit assessor due to heavy reliance on strong codeine until 2017 and, after being offered a permanent position, being partly incapacitated for her employment, affecting her productivity and performance at work. Her sworn affidavit omits that by April 2019, she had been identified as a high performing and highly productive credit assessor, earmarked for progression to a team leader role, as her performance review for the March 2019 quarter shows. Further, the only complaint in her feedback to her supervisor concerning her health was not about her accident injuries but about “completing my surgery require[d] on my ankle to get back into my physical health.”[128]
[128] Exhibit R1, page 21.
Consequently, the following passage in her First Affidavit was unimpressive:
Following the accident I stopped playing netball. In 2017 I was placed in A grade Netball due to someone leaving. I was the next person in line to go up. I went back but I couldn’t play in the physical manner I did before. I am extremely careful the way I move on the court and cannot play to the level I did previously. I am not playing this year as I am sick of being sore and cannot cope.[129]
…
After about 6-8 weeks my ankle significantly improved and clean out surgery was not required.[130]
[129] Exhibit A5, page 8. Emphasis supplied.
[130] Exhibit A5, page 11. Emphasis supplied.
As the evidence unfolded at trial, it became apparent she not only played to a higher level than previously, moving up two grades and winning awards because she was a very good netballer, but stopped playing because she had badly dislocated her ankle. These omissions were unsatisfactory.

Again, the Applicant’s submissions overstate the nature and extent of her impairment to work and address the issues too crudely in terms of an alleged total incapability to progress to more senior, lucrative roles.[594] In my view, her counsel’s submissions do a disservice to the Applicant’s demonstrated technical and analytical skills and the objective evidence suggesting she has some prospects of progressing to a more senior role with her current employer or another financial institution using these skills. In this regard, I note Dr Schirripa’s opinion that “she may be able to progress further in terms of technical or analytical roles within a financial institution” is important and should not be overlooked.[595]
[594] Applicant’s written opening [B444].
[595] Ibid.
It is therefore critical to consider the ways in which the Applicant’s PTSD symptoms manifest themselves and adversely impact her performance at work, and draw some conclusions as to how her PTSD may impact her future prospects for promotion.
As I have found,[596] the Applicant’s inability to regulate her emotions in dealing with conflict with subordinates and her superior in the workplace (particularly in conflict situations) because of her PTSD arising from the accident directly resulted in her failing to meet an essential criterion for the position of a team leader. Whilst the Applicant was still in the role, the responsibility of performance managing a difficult team member was removed from her by her superior, Ms Reid. She was counselled about her workplace communication, a basic workplace skill and part of Westpac’s code of conduct.[597]
[596] See [456] above.
[597] T282.32-.34.
I accept that the Applicant is, by reason of her PTSD arising from the accident, most likely unable to perform a role with the added responsibility and inherent difficulty and stress of managing people without significant risk of triggering severe symptoms of anxiety, and thereby adversely affecting her functional capacity to meet the basic requirements of the position of a team leader. The Applicant is therefore unlikely to progress to the role of a permanent team leader or any other more senior and higher remunerated role involving people management skills.
Although she was untrained and had no experience in people management, I am not satisfied that the Applicant would have been an unsuitable people manager in any event even if she had not had the accident. There was insufficient evidence of her personality and communication style before the accident for me to conclude that her aspirations for people management were totally misplaced. I am therefore unable to conclude whether the gruffness, directness and honesty valued by Mr Mack was the Applicant’s premorbid personality or as a result of a personality shift arising from the accident. I am also not satisfied on the evidence that her depressive disorder would have adversely impacted her ability to be a competent people manager having regard to the very different symptoms and functional impairment of each disorder, on Dr Schirripa’s evidence.
I find the Applicant had not demonstrated any proven people management skills before the accident simply by her holding a position as a store manager with Woolworths’ BWS. Her oral evidence clearly described the different and lesser responsibilities of a BWS store manager to that of a Westpac team leader. Indeed, she deprecatingly described progression at Woolworths in terms of “teenagers move up the ranks”.[598] Rostering and stock planning at BWS are similar to the planning skills the Applicant performed exceptionally well as team leader and do not involve significant people management skills. Unlike her Westpac employment, there was no objective evidence of her performance at BWS, either from her personnel file or from any of her supervisors, for me to draw any relevant conclusions.
[598] T111.26-.28.
When the secondment to the team leader position ended, the Applicant returned to her previous role as a credit assessor, which she continues to perform very well. The evidence from her performance reviews and of her supervisors, Mr Mack and Ms Reid, shows the Applicant is a valued employee: “a breath of fresh air”[599] whose technical skills, productivity and customer service outcomes are exceptional. Her employer has been sympathetic and very supportive of the Applicant in accommodating her PTSD and her need to deal with her personal injuries claim and this proceeding. The Applicant acknowledges this by the appreciation expressed in her performance reviews[600] and her closing submissions.[601]
[599] T275.31
[600] Exhibit R1.
[601] Applicant’s written closing [B469].
For these reasons, it is likely that the Applicant will have the opportunity to progress to more senior, lucrative technical or analytical roles with her current employer or another financial institution despite her PTSD arising from the accident. Indeed, Ms Reid’s suggestion that she consider interviewing for a permanent team leader position, even if it was just for the interview experience, shows her future prospects for progression to a more senior role are not ruined, as the Applicant contends. However, there is no evidence about the nature of such roles, how progression might occur or what remuneration might be involved.
Working from home or office
The Applicant submitted she will have, at the least, very significant difficulty returning to an office environment, working with unfamiliar people.[602]
[602] Applicant’s written closing [B465.3].
As I have said, on the evidence, I am not satisfied about the Applicant’s account of her unsuccessful attempt to return to work in the office after COVID-19 restrictions lessened.[603] I am therefore unable to give the opinions expressed by Dr Schirripa in his final report any significant weight as regards her inability to function in a busy work environment or with strangers, given the evidence that this was not a difficulty after the events of late 2019 and before COVID-19 restrictions, and that her work as a credit assessor involves her dealing with a range of “strangers” and “unfamiliar people”, albeit virtually.
[603] See [386]-[391] above.
It is the Applicant’s preference to work from home, rather than her only being suited to working from home by reason of her PTSD arising from the accident. Working from home is convenient for her, it creates no difficulties with her work and this is agreeable to her employer Westpac, which has always offered the opportunity of flexible working from home arrangements and will continue to do so.[604]
[604] T289.16-.28.
Current employment not in jeopardy
I reject the Applicant’s submission that her employment might now be in jeopardy.[605] It is without foundation and contrary to the cogent evidence of her employer’s continuing sympathy and support as referred to above.[606] The high regard in which the Applicant is held by her supervisors, despite the difficulties that emerged in late 2019 in the acting team leader role, is well demonstrated by Ms Reid’s tactful comments recorded in the Applicant’s performance review in comparison with her evidence about what happened.
[605] Applicant’s written closing [B465.3];[472].
[606] See [543] above.
She will continue to be accommodated in working flexibly from home if she prefers.
Agreed Statement of Fact
The parties agreed the following comparable employment positions and levels of remuneration which “might be available to the Applicant if she completed her university degree” for the following six occupations, on the basis that the earnings were the median for full-time non-managerial employees paid at adult rates, before tax and including amounts salary sacrificed:[607]
[607] Agreed Statement of Fact (Annexed to Applicant’s written closing).

Occupation

Weekly pay

Labour Market Information

Financial Investment Advisers and Managers

$2,307.00

Stable Future Growth

Advertising, Public Relations and Sales Managers

$2,224.00

Strong Future Growth

Management and Organisation Analysts

$2,067.00

Strong Future Growth

Financial Dealers

$2,298.00

Stable Future Growth

Intelligence and Policy Analysts

$1,821.00

Very Strong Future Growth

Financial Brokers

$2,231.00

Very Strong Future Growth

Apart from what was agreed as a fact in this way, there was no evidence about the nature of these positions or what skills and experience were required to perform these occupations (other than by implication completion of a Bachelor of Commerce degree being a prerequisite). I was therefore unable to evaluate the chance of the Applicant on completion of her university degree being successful in applying for any of these positions, whether for the purpose of assessing what her future earning capacity would have been but for her accident injuries or will be with her accident injuries.
Key findings relevant to loss of earning capacity
My key findings relevant to the Applicant’s claim for loss of earning capacity are as follows.
The Applicant continues to perform the role of credit assessor very well despite her accident injuries. She is a valued employee, whose technical skills, productivity and customer service outcomes are exceptional. Her employer is sympathetic to her accident injuries and very supportive.[608] Her employment is not in jeopardy.[609] She will continue to be accommodated in working flexibly from home if she prefers.[610]
[608] See [543] above.
[609] See [548]-[549].
[610] See [545]-[546] above.
Having been unable to fulfil a basic requirement of the role of a team leader in late 2019 (that is, appropriate one-on-one communication in managing people, particularly in giving negative feedback or managing conflict) as a result of her PTSD arising from the accident, it is unlikely that the Applicant will be able to fulfil the requirements of a permanent team leader role or progress to any more senior and higher remunerated position involving people management.[611]
[611] See [539]-[540] above.
It is likely that the Applicant will have the opportunity to progress to more senior, lucrative technical or analytical roles with her current employer or another financial institution despite her PTSD arising from the accident. However, there is no evidence before me about the nature of such roles, how progression might occur or what remuneration might be involved.[612]
[612] See [544] above.
I do not accept the Applicant is unable to work in an office environment or with unfamiliar people by reason of her PTSD arising from the accident.[613]
[613] See [545]-[547] above.
The Applicant has not lost the capacity to study and complete her university degree by reason of her accident injuries.[614]
[614] See [523]-[535] above.
There is an even chance that the Applicant might decide not to complete her university degree for reasons unrelated to the accident.[615]
[615] See [536] above.
Primary award for loss of future earning capacity
On my findings on the evidence above, I assess the Applicant’s loss of earning capacity arising from her accident injuries as being the difference between her current salary as a credit assessor and what she would have earned as a permanent team leader. I am unable to evaluate the Applicant’s loss of earning capacity for other more senior and higher remunerated positions involving people management because there is no evidence before me about the nature of such roles, how progression might occur or what remuneration might be involved.
The Applicant’s current salary as a credit assessor is $61,990 gross per annum[616] or $51,267.40 after tax and Medicare levy per annum, equating to $986 net per week.[617]
[616] Exhibit A71, page 4.
[617] As per for 2020/2021, rounded to the nearest dollar.
The salary range for a team leader based on Mr Mack’s evidence[618] was $85,000 gross per annum or $66,288 after tax and the Medicare levy, equating to $1,275 net per week.[619] I will use this average salary as the basis for assessing the Applicant’s lost earning capacity rather than the evidence about the allowance the Applicant was paid while acting team leader because Mr Mack’s figure better represents the average likely remuneration the Applicant would be paid if she were to be employed and paid as a permanent rather than acting team leader.
[618] T431.17-.33 being a range of $80,000 to $90,000 gross per annum plus superannuation.
[619] As per for 2020/2021, rounded to the nearest dollar.
The difference between the Applicant’s current net weekly salary and the salary she would have earned as a team leader is $289, giving rise to a primary award for loss of whole-of-life earning capacity of $253,742 using the agreed 5% discount multiplier for a probable retirement age of 67 of 878.[620] This represents a loss of earning capacity of approximately 23%.
[620] Section 55, Civil Liability Act. Exhibit A74.
Adjustments and final award for loss of future earning capacity
Section 56A(4) expressly excludes from its operation the discount for the usual vicissitudes of life (sickness, accident, unemployment and industrial disputes). The court must be satisfied that any negative or positive contingency specific to the Applicant’s circumstances has at least a 20% chance of success.
In this case, I will discount the Applicant’s primary award for the usual vicissitudes of life, since she is relatively young and has many working years left, by 15%. I must then apply the statutory discount of 20% required by s 56A(5). The result is an award for loss of future earning capacity of $172,545.[621]
[621] Rounded to the nearest dollar.
Past Economic Loss
The Respondent accepts the Applicant was incapacitated for her employment with Woolworths’ BWS as a result of her accident injuries and accepts the calculation of past economic loss of $7,254 set out in her First Affidavit.[622]
[622] Exhibit A5, page 6.
Given my finding that the Applicant has suffered a loss of earning capacity from her inability to perform the role of team leader at Westpac as a result of her accident injuries, she has suffered past economic loss of $289 per week[623] since she returned to her previous role of credit assessor on 20 December 2019[624] and the trial, resulting in a loss of $19,776.[625]
[623] The difference between net weekly salary of $985.91 as a credit assessor and $1,274.77 as a team leader.
[624] Exhibit A71, (MFI A4, page 561).
[625] Rounded to the nearest dollar.
The award for her total past economic loss, including the statutory discount of 20% required by s 56A(5), is therefore $21,624.[626]
[626] Ibid.
On 11 April 2016 and 17 January 2017, the insurer paid the Applicant on account of lost wages $5,000 and $2,000 respectively.[627]
[627] Exhibits A8 and A9.
Past superannuation loss
The Applicant is entitled to an award of $2,054 for her loss of past superannuation benefits, calculated at the current minimum superannuation contribution rate of 9.5% on her past economic loss (net of the statutory discount).[628]
[628] Rounded to the nearest dollar.
Future superannuation loss
I will award a total of $20,200 for the Applicant’s loss of future superannuation, calculated at the current minimum superannuation contribution rate of 9.5% on her past economic loss until 30 June 2025 and 12% thereafter on her future economic loss by prorating the amount by the number of days (both net of the statutory discount).[629]
PART G: ASSESSMENT OF OTHER LOSSES
[629] Section 19 of the Superannuation Guarantee (Administration ) Act 1992 (Cth).
Past medical and out-of-pocket expenses - agreed at $2,991
The parties have agreed the amount of past medical expenses and out-of-pocket expenses as $2,991.[630]
[630] T192.8-.23.
Future medical treatment
The Applicant submits that in the circumstances of this matter, it is appropriate for the court to make a “broad-axe” allowance for future medical expenses for general practitioner, physiotherapy, physiology and chiropractic examinations and treatment, pain relief medication, psychological counselling, a gym membership and radiological imaging studies.
The Respondent disputed the need for much future treatment on the basis that there is little need for treatment for her accident injuries now the acute stage has passed, primarily because of his denial that the Applicant suffered mental harm (PTSD) arising from the accident. The Respondent made the point that the Applicant did not actually seek a great deal of treatment for her accident injuries before the trial. [631]
[631] Respondent’s written closing [257]-[261].
Having regard to Dr Schirripa’s opinion that the biggest prognostic indicator for the Applicant’s PTSD will be her ability to engage with psychological and pharmacological treatment,[632] I will make an allowance for continued psychology sessions and anti-depressants of $10,000.[633]
[632] T485.6-.16.
[633] An extrapolation from the psychology treatment figures in the Actuarial Certificate, A74.
Having regard to Drs Sandow and Bastian’s opinions as to the need for a targeted physiotherapy program before the benefit and risk of any proposed surgery to the Applicant’s right AC joint might be assessed, I will make an allowance of $5,000 for physiotherapy and $6,000 for surgery, including any medical investigations and pain medications, bearing in mind the contingency that surgery might not be necessary.[634]
[634] See [429] above.
I make no allowance for any chiropractic treatment, in the absence of any evidence about the benefits of such treatment for any of her accident injuries.
I make no allowance for a gym membership, which the Applicant on her own evidence does not use, preferring to exercise at home.
Accordingly, I award a total of $21,000 for future medical treatment.
Past services
The Applicant has not pursued her claim for past gratuitous assistance or services.[635]
[635] Applicant’s written closing [B522].
Future services and equipment
The Respondent rightly criticised the recommendations made by Mr Killington for future home assistance, since his instructions and assumptions were inconsistent with the Applicant’s own evidence of the services she reasonably requires to accommodate her physical injuries arising from the accident. In any event, based on common experience, the rates were high and the frequency of services too often and unnecessary for the level of adverse impact of the Applicant’s physical accident injuries.
Having regard to the Applicant’s general fitness and her evidence that she can and does clean, save above shoulder height, and she vacuums by pacing herself, I will allow a whole of life amount for spring-cleaning (on a six-monthly basis, not quarterly) of $11,250[636] and window cleaning of $5,000. Since the Applicant washes her own car without difficulty, there is no need for her to have assistance with car washing. It is not necessary for the Applicant to have provision for other services (gutter cleaning, lawnmowing etc) since they are not her responsibility but that of the strata corporation for the residence owned by her partner. The Applicant did not do her own home maintenance before the accident since she has no skills in this regard and would engage a trade for such services if there was a need, as she has done in the past.
[636] Based on the figure in Appendix 6 of Exhibit A74.
As to future equipment, on the evidence there is no demonstrated need for an electric bed, bath magic, a bed stick, non-slip mats, handy bar or lightweight pots and pans. The Applicant’s right shoulder, neck and upper back injuries do not prevent her getting in and out of bed or bending over or lifting pots and pans and hairdryers that ordinarily weigh less than 5kg. If she cannot lift above her shoulder height at all, a lightweight hairdryer is no more use than a normal one.
It is important that the Applicant have a well set up workstation at home as recommended by Dr Bastian, even if her employer has provided a chair to date. I will make an allowance for this, as well as the replacement of the items she has already acquired such as a robot vacuum cleaner and long-handled equipment as per the equipment list in the appendix to the Actuarial Certificate.[637] Taking a “broad axe” approach, I will allow $10,000.
[637] Exhibit A74.

Accordingly, I award $26,250 for future services and equipment.
Interest
Under s 39 of the District Court Act 1991, interest is payable on past losses for lost earning capacity and medical and out-of-pocket costs incurred totalling $26,669.
Having regard to the rates of interest specified by SR 208 of the Supreme Court Civile Rules 2014 for the period to 17 May 2020 and by UCR 182.3 from 18 May 2020 up to and including the date of judgment, I fix the following rate of interest for the relevant period of past losses at 5% per annum.
I will hear the parties further as to interest on past losses.
PART H: CONCLUSION AND FORM OF JUDGMENT
For the above reasons, I award the Applicant damages in the amount of $271,864 plus interest as follows:[638]
[638] Applicant’s written closing [B575].
Non-economic loss  $5,200 (ISV 13)[639]
Past loss of earning capacity  $21,624[640]
[639] See [405]-[408] above.
[640] See [567] above.

Past loss of superannuation  $2,054[641]
Future loss of earning capacity  $172,545[642]
Future loss of superannuation  $20,200[643]

Past medical and out-of-pocket expenses  $2,991[644]
Future medical treatment  $21,000[645]
[641] See [569] above.
[642] See [564] above.
[643] See [570] above.
[644] See [571] above.
[645] See [572]-[578] above.
[646] See [580]-[584] above.
Future services and equipment  $26,250[646]
Total   $271,864
I will hear the parties as to interest, costs and the form of judgment.

92	Moderate shoulder injury
92.2	Comment An ISV under this item will be appropriate if there is a whole person impairment for the injury of less than 10%	6	10
Examples of the injury • Traumatic adhesive capsulitis with discomfort, limitation of movement and symptoms persisting or expected to persist for about 2 years • Permanent and significant soft tissue disruption, for example, from tendon tears or ligament tears • Nerve palsies from which the injured person has made a good recovery • Painful persisting dislocation of the acromioclavicular joint • An injury to the sternoclavicular joint causing permanent, painful instability
Comment about this level of ISV • An ISV at or near the bottom of the range will be appropriate if the injury is to the non‑dominant upper limb • An ISV at or near the top of the range will be appropriate if the injury is to the dominant upper limb

Occupation	Weekly pay	Labour Market Information
Financial Investment Advisers and Managers	$2,307.00	Stable Future Growth
Advertising, Public Relations and Sales Managers	$2,224.00	Strong Future Growth
Management and Organisation Analysts	$2,067.00	Strong Future Growth
Financial Dealers	$2,298.00	Stable Future Growth
Intelligence and Policy Analysts	$1,821.00	Very Strong Future Growth
Financial Brokers	$2,231.00	Very Strong Future Growth