Ratanasirilak v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ratanasirilak v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 545
CLAIMANT:	Rungtiva Ratanasirilak
INSURER:	Insurance Australia Limited, ABN 11 000 016 722, trading as NRMA
MEMBER:	Terence Stern OAM
DATE OF DECISION:	2 October 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant was injured in a motor vehicle accident on 14 October 2024; insurer wholly admitted liability for the claim; assessment of damages; dispute about causation; Watts v Rake, Purkess v Crittenden, Husher v Husher, Container Terminals Australia Ltd v Huseyin, IAG Ltd t/as NRMA Insurance v Damian Mares, Dal v Chol, Allianz Australia Insurance Ltd v Kerr, and Nominal Defendant v Livaja applied; Held – buffer for past and future economic loss assessed at $175,000.00; claimant’s costs assessed at $31,005.70 inclusive of GST.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 1. The insurer admits it owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury, loss and damage because of that breach of duty. 2. Under s 7.36(3) and 7.36(4) of the Motor Accident Injuries Act 2017 (the MAI Act), I assess the amount of damages for this claim as $175,000.00.

STATEMENT OF REASONS

INTRODUCTION

Rungtiva Ratanasirilak (the claimant), was injured in a motor vehicle accident on

14 October 2020.
She made a claim for damages on the insurer of the at fault driver, Insurance Australia Limited, ABN 11 000 016 722, trading as NRMA (NRMA) under the Motor Accident Injuries Act 2017 (the MAI Act).

NRMA wholly admitted liability for the claim on 13 September 2022.
The content of that admission is that:
(a)    the insured driver owed the claimant a duty of care;
(b)    the insured driver breached that duty of care, and
(c)    the claimant suffered some injury, loss or damage as a consequence of the insured's driver's breach of the duty owed.

THEASSESSMENT CONFERENCE

An Assessment Conference took place on 8 July 2024. The claimant gave evidence, answering questions put to her by her counsel and participated in an extensive cross examination, mainly directed to whether or not she had sustained the economic loss she claimed. The claimant's credit was in issue.
The proceedings were sound recorded and at the request of the parties and me, transcribed.
Claimant's counsel set out the competing cases in the Claimant's Further Submissions of
13 August 2024 and 10 September 2024.
At the time of the accident the claimant was not working, having taken time off to care for her husband who had been injured at work in 2015. The claimant's case is, in essence, that it was her intention to return to work after a period of caring for her husband, but she was prevented from doing so by reason of the injuries she sustained in the accident and their ongoing effect.
NRMA submits that the claimant never would have returned to work. That general proposition is dependent on three matters:
(a)    the claimant is an unreliable witness and by extension not telling the truth;
(b)    the claimant's most likely future circumstances are that she would have remained off work to care for her husband, and
(c)    the claimant has a greater capacity to work than she asserts.

(b)If what NRMA submits is correct, it must follow that the claimant has deliberately overstated the impact of the accident, remained off work despite being able to work and for another purpose, i.e. to look after her husband.

The primary statement of the claimant

In her statement dated 9 November 2023 [primary statement], the claimant stated:
"1. On 14 October 2020 I was travelling along North Parade at Rooty Hill when involved in an accident. I was being tailgated. I continued to drive and as I approached a 40km speed sign I began braking to reduce my speed. The other vehicle then collided with the rear of my vehicle.
2. I felt pain to my neck and experienced weakness to my right arm. I also had lower back pain. Due to the accident, I sustained the following injuries;
(a) Injury to neck.
(b) Injury to right shoulder.
(c) Injury to lower back.
(d) Psychological trauma."
The NSW Police Report summarised the crash details as:
"At about 5:00pm on Wednesday the 14^th of October the owner of a Honda Civic was driving down North Parade Rooty Hill, when a Jeep SRT collided with the rear of their vehicle. Both drivers exited their vehicles and exchange details however the driver of the Honda received injuries to their back due to the incident."

Prior medical condition

The claimant alleged [3], that prior to the accident, she was in good health. She had been diagnosed with type II diabetes, which she managed.

Treatment

After the accident, the claimant alleged [4] that the next day she consulted her GP,

Dr Yin Ming Law and was referred for MRI scans and physiotherapy.
Subsequently, the claimant was referred to Dr Duckworth for treatment of shoulder pain but as he was too expensive, she consulted Dr Kuo whom she saw on 22 February 2021. He referred her for a cortisone injection and MRI scans.
Dr Kuo recommended that she continue with physiotherapy.
The claimant states [6] that she consulted Dr McMaster for treatment of her lower back pain, and he recommended that she continue with physiotherapy.
The claimant attended for physiotherapy treatment at the Rooty Hill Medical Centre. The claimant had an MRI on her right shoulder on 6 March 2021.
According to the claimant [9], on 18 March 2021, she returned to see Dr Kuo, who recommended surgery to the right shoulder. She had an injection to the back of her shoulder and one to the front. It did not help.
The claimant further states [10], that she had surgery to her right shoulder on 9 June 2021.
In October, the claimant was reviewed by Dr Kuo and given that she was still experiencing pain in her right shoulder, she was referred for further injections. Again, these did not help.
The claimant states [12] that she returned to see Dr Kuo in November 2021 with ongoing pain her shoulder.
At [13] the claimant consulted clinical Associate Professor Boesel in early 2022. He recommended medication, physiotherapy and further injections. He told her that she might be a candidate for RF denervation and an epidural steroid injection.
[14] The claimant saw Dr Kuo again on 7 February 2022, and he recommended continuing pain management and physiotherapy. On 7 March 2022, Dr Kuo recommended a shoulder manipulation and another injection.
On 31 May 2022, Associate Professor (A/Professor) Boesel changed the claimant's medication from Mobic to Piroxicam.
On 10 June 2022, the claimant consulted Professor Di Leva.
When the claimant saw Professor Di Leva on 24 June 2022, with the results of the MRI scan of two days before, he discussed possible fusion surgery but recommended that she exhaust conservative treatment before surgery.
The claimant saw A/Professor Boesel again on 26 July 2022, and he advised return to physiotherapy.
The claimant saw A/Professor Boesel on 4 October 2022, when he advised increasing Endep to 25mg.
By the time the claimant saw A/Professor Boesel on 19 December 2022, he recommended hydrotherapy and further physiotherapy,
The claimant had five sessions of physiotherapy under Medicare during 2023.
In August 2023, Dr Kuo said he would place the claimant on the waiting list for surgery to her right shoulder, and the claimant lodged her paperwork for the surgery at Nepean Hospital.
At [28] the claimant set out her continuing symptoms:
(a) “Headaches.
(b) I have neck pain every day.
(c) I have a radiation of pain from the neck into the right shoulder.
(d) Pain to the right shoulder. Ever since the surgery in June 2021 I feel that my condition has never stabilised. The right shoulder has progressively gotten worse.
(e) The right shoulder pain travels down my right arm.
(f) I get pins and needles and numbness to my right arm.
(g) I have difficulty raising my right arm due to shoulder pain.
(h) Pain to my lower back.
(i)   Radiation of pain from my lower back into the right leg. This pain causes me to walk with a limp sometimes.
(j)   I have difficulty performing household activities. Even washing my own hair is difficult.
(k) Driving. I do not like driving myself now due to the pain in my right shoulder. I feel that I have reduced gripping strength in my right hand which impacts my confidence when driving.
(l)   Difficulty dressing myself.
(m)         The pain increases in cold weather.
(n) Anxiety.
(o) Reduced ability to engage in pre-accident social, domestic and recreational activities."
The claimant set out her pre-accident educational, employment and personal history at paragraph [29] of her statement.
The claimant stated at [36]:
"Ever since my father passed away in 19941 had a desire to go into aged care. The reason for this was I was not in Thailand to help care for my elderly father and I felt that I needed to give back. It was always my passion to eventually get into aged care work. Once my children were old enough, I began to take steps to make this happen."
The claimant explained at [37] that in 2014, she obtained her Certificate Ill in Aged Care.
At [38] the claimant said she was employed by RONS Home Care, providing personal and domestic care to clients within their homes.
From August 2017 to February 2020, the claimant stated, and it is not disputed, that she was employed by Arcare as a personal career for residents within the nursing home, working full time, five days a week. She said that she left that position as she needed more time at home to look after husband who was undergoing multiple surgeries.
The claimant continued [40] that:
"In March 2020 I began working at BUPA Aged Care, North Rocks as an Assistant in Nursing. My employment was on a casual part-time basis, and I would work around 25 to 30 hours per week. This employment suited me well as working casual allowed me to arrange my schedule around my husband's appointments. My employment with BUPA was quite flexible. I would pick up shifts when available and if an urgent matter come up with my husband, they would allow me to take time off."
At [41], the claimant further stated:
"I ceased this employment in or around June 2020. I advised my employer that I needed to take time off work to care for my husband. I asked them if I could return to my employment at a later stage and I was advised that I would be welcomed to come back when I was ready to return."
The claimant explained that at [42] in June 2020, her husband's condition was "quite unstable" and that due to his disabilities and the amount of medication he was on after his surgery, it became apparent that he would need someone at home with him. He had many medical appointments to attend to and needed assistance to get to the appointments. The claimant said that it was becoming difficult for her to manage her employment as well as trying to help her husband. She and her husband decided that she should take a break from work, so that she could be available to look after him "on a permanent basis”.
She qualified this immediately by saying:
"It was not to be a permanent arrangement. I had planned that I would take a few months off work and once my husband was more stable and able to drive himself to appointments and monitor his own medication I would then return to work. I expected that I would be able to return to work around November 2020."
The claimant continued at [44]:
"The reason I planned to return to work in or around November 2020 was that I knew work gets very busy just prior to the Christmas period and it would be a lot easier for me to pick up the shifts with BUPA at that time. The nursing home would always get busy around the Christmas period because there would be extra activities put on for the residents. Financially I needed to return back to work within a few months as my husband does not work due to his disabilities. I also thought returning to work just prior to Christmas would give us some extra funds over the Christmas period. I had always intended to work until retirement age."
The claimant continued [45] that in mid-2020, she was approved for a carer's position to look after her husband for "a few months".
The claimant continued that following her injury in October 2020 (i.e. the injury in the subject motor vehicle accident) she was not able to return to work and:
"... as a consequence, continued to receive the carers pension and in January 2023 the pension was altered to a carers payment".
The claimant continued [46]:
"The plan was that I would eventually return to work as an AIN however due to my ongoing disabilities this has not been possible.
[47] I have not looked for work since the accident as my doctor has declared me unfit for duties ever since the accident. I do not feel that I would be capable of performing nursing duties at this stage due to my ongoing disabilities."

Prior capacity for employment

The claimant alleged [48] that she did not have any difficulty carrying out her duties at BUPA prior to her motor vehicle accident. She detailed her duties as an Assistant in Nursing:
(a)    “Showering residents. We use a lifting machine with two staff on the machine. We place the residents onto a sheet and then pull the sheet across to the machine. I would not have the physical capacity to do this now due to my right shoulder and lower back.
(b)    Washing the residents. I would now struggle to wash their hair or lower parts of their body. Any activity that requires me to reach up with my right arm or bend down due to my lower back.
(c)    Feeding of residents. This requires a repetitive motion with my right hand. I am naturally right-handed. To feed the patient I would need to have my right arm raised with repetitive movements backwards and forwards.
(d)    Changing residents' diapers. I lack the strength to move the patient around or lift them up to put the new diaper on. It also requires me to have my arms stretched out.
(e)    Dressing residents. This requires me to raise my arms above head height to put shirts on. I am also required to bend down to put pants and socks on.
(f)    Tucking residents into their beds. This requires some lifting of the mattress to tuck the sheet in and also moving the resident around on their bed.
(g)    Cleaning the bathroom. This involves a lot of bending and stretching out of my arms. When the residents make a mess going to the bathroom, we would have to clean up the mess.
(h)    Transferring residents from the bed to wheelchair. This requires physical strength, particularly upper body strength.
(i)    Pushing residents in wheelchairs to activity areas. This requires me to have my arms out in front of me and it also requires physical strength to push the wheelchair.
(j)    The work as an Assistant in Nursing is quite repetitive. We have several residents that we have to shower, dress, toilet, feed, transfer and make comfortable and the same process repeats throughout the day.
(k)    There is also some computer work involved throughout the shift. I would have difficulty sitting and typing for extended periods now due to the shoulder and neck pain."
The claimant stated [51]:
"I would like to return to my employment as an Assistant-in-Nursing however my ongoing disabilities are making this difficult. I was unable to gain my qualifications as an AIN until later on in life and I would like to make use of these qualifications and support my family financially."

MEDICAL OPINION

On 22 February 2021, Dr Warren Kuo reported to Dr Ying Ming Law of Rooty Hill Medical and Dental Centre. He noted that the claimant presented with right shoulder, neck and back pain, with a history that on 14 October 2020, she was a seat- belted driver, stationary in a car hit from behind. This caused quite significant impact resulting in right shoulder, neck and back pain. Her right shoulder pain was located superiorly and laterally, worse with all movements, be it overhead or reaching behind her back. She reported that she had not been able to return to work since the accident.
On physical examination, there was moderate to significant restriction of movement and a degree of sensitivity and apprehension in using the shoulder. She had positive impingement and biceps test, she had Grade IV power of abduction and associated pain. The cervical spine range of movement was restricted due to pain.
An ultrasound on 30 November 2020 was reported a 7x 8mm {full thickness supraspinatus rotator cuff tear with bursitis and impingement.
An MRI of the right shoulder reported by Dr Angela Li and co - reported by Dr Tony Lu on 6 March 2021, gave a conclusion of:
(a) a partial thickness footprint tear of the supraspinatus, on a background of severe, tendinosis, and
(b) mild fluid distention of the subacromial/ subdeltoid bursa, suggestive of bursitis.
On 16 March 2021, Dr Kuo reported to Dr Law of his review that day, that an MRI of the right shoulder of 6 March 2021, confirmed a bursal sided partial supraspinatus rotator cuff tear, with moderate bursitis.
On 22 March 2021, Dr Jacqueline McMaster reported to Dr Law, that she saw the claimant. On examination, the claimant had limited range of motion in both the cervical and lumbar spine in all directions, with generalised tenderness throughout both areas.
Dr McMaster believed that the claimant had musculoskeletal neck and back pain, without evidence of nerve root compression on her imaging, although she did have generalised radicular weakness and numbness. There was no indication for surgical intervention and the best course was intensive physiotherapy and hydrotherapy.
The claimant had surgery by Dr Kuo at Nepean Private Hospital on 9 June 2021:
(a)    right shoulder arthroscopy;
(b)    rotator cuff repair (for a near full thickness tear of the supraspinatus), and
(c)    bicep tenodesis.
In his operation report, Dr Kuo stated that the supraspinatus tendon repair was completed to a full thickness tear using a corkscrew anchor and three fibre stitches. An excellent repair was achieved.
On review, on 7 October 2021 i.e. 4 months post-surgery, the claimant was still experiencing pain in her right shoulder. He obtained approval for a subacromial injection. He provided her with a subacromial injection and advised her to continue with physiotherapy.
Two months later, Dr Kuo reported that the claimant was still with quite a lot of pain in her shoulder and had limited movement due to pain.
A/Professor Boesel, interventional pain specialist and clinical associate, reported to Dr Law on 22 January 2022. He took a history that the claimant was working as an Assistant in Nursing until her motor vehicle accident. She was currently not working and had no capacity. He noted the history of type 2 diabetes and gastroesophageal reflux. The history of the accident that he took was that the claimant was driving in a 40 km zone and was being tailgated by another vehicle at high speed, which then struck her in a rear - end collision. There was significant damage to her car, which was written off. She went to see her GP the next day, presenting with right sided neck pain and shoulder pain, as well as low back pain.
He took a history of her surgery by Dr Kuo, but she felt that her shoulder pain had persisted and was slightly worse than before the surgery. Her neck pain was on the right side and intermittently severe. It radiated across the trapezius to the right shoulder, and in the suboccipital space with headaches. She said she had been diagnosed with a number of cervical spondyloses; however, a CT was not available on the day. She described right - sided predominantly low back pain with radiation into the right buttock interfering with bending and worse when cold and in the morning. She had difficulty walking with limitations in her capacity to about 10 metres. On physical examination, A/ Professor Boesel noted:
(a)    Shoulder restriction - flexion 100 degrees, extension 80 degrees, abduction 70 degrees, internal rotation 20 degrees, external rotation 40 degrees. She was tender to palpation over the shoulder joint anteriorly and posteriorly. There was hypoaesthesia in the suprascapular nerve distribution on the right to cold and pinprick, which is of moderate severity.
(b)    She had dysmetria of the cervical spine with guarding and reduced movement in all directions by approximately 50% to 75%. She was tender over the lateral masses on the right side of the neck. She was markedly tender over the origin of the greater occipital nerve on the right with hypoaesthesia in the dorsal scalp in the distribution of the greater occipital nerve, indicating moderately severe dysfunction of this nerve.
(c)    With respect to the lumbar spine, she had a positive Schober test with marked restriction in both flexion and extension capacity. She had tenderness in the right paravertebral muscles with associated dysmetria. There was some referred loss of sensation in the right LS and S1 dermatomes; however, her power is intact and her reflexes are symmetrical.

A/ Professor Boesel opined:
"Rungtiva has a complex multisite pain disorder, predominantly on the right side of her body, encompassing what appears to be spondylosis-related cervicalgia, although I will need to see the CT scans to verify the extent of her overt pathology. She has occipital neuralgia in the distribution of the greater occipital nerve on the right. She has a post surgically partial frozen shoulder with impairment in the suprascapular nerve. There is significant discopathy at L5-S1, with marked reduction in functional capacity. Overall, she is in poor condition with respect her functional status and is currently not able to work."

Gabrielle Chang, registered physiotherapist

There is a report in the bundle of a physiotherapist, Gabrielle Chang. The claimant was referred to the Family Physio and Sports Injury Clinic in 2014. On 25 November 2014, Gabrielle reported:
“On initial assessment she presented with intermittent pain in the right shoulder which radiates to her head and occasionally causes headaches. Her right upper trapezius was hypertonic. She also complained of constant pain in the left side of the lumber spine which radiates down tire left posterior thigh.
Treatment consisted of advice and education, manual therapy (soft tissue techniques and mobilisation techniques), heat therapy and the implementation of a home exercise program (stretches, mobilisations, range of motion and core strengthening exercises)
On final assessment, Ms Ratanasirilak reported that the shoulder pain had resolved and was no longer of concern. She reported that her lower back pain had also improved, though she still has intermittent episodes of pain, particularly in tire morning.”

Medical Assessor Menogue

Medical Assessor Menogue assessed the claimant as having sustained 7% whole person impairment (WPI) as a.result of the accident, by reason of the injury to her right shoulder.
Medical Assessor Menogue commented at page 12 of his determination that:
"... there is contemporaneous evidence of right shoulder dysfunction going back many years (8 February 2009, 19 March 2014, 30 December 2015 and 21 January 2016 - GP entries refer).
Reference was also made to right shoulder pain in the entry 30 September 2020 - two weeks before the... accident."
He continued:
"I have determined that there is sufficient evidence to establish a causal relationship between the... accident and the right shoulder."
Medical Assessor Menogue referred to the MRI findings of March 2021, and considered that those reflected degenerative processes, notably, "the degenerate acromioclavicular joint and the tendinosis involving supraspinatus and subscapularis tendons." These findings, he thought were pre-existing, so that her diagnosis was a soft tissue injury of the right shoulder.
Medical Assessor Menogue determined that the injuries to the cervical spine, lumbar spine and right shoulder, caused by this accident, were all soft tissue. The focal full-thickness supraspinatus tear of the right shoulder was not caused by the accident.
Dr Thomas Newlyn, psychiatrist, assessed the claimant on 31 May 2023.
Medical Assessor Newlyn recorded the claimant's past medical history from the GP record:
“• 2004 Carpal Tunnel Syndrome
•    2005 NIDDM (non-insulin-dependent diabetes mellitus)
•    2010 Iron deficiency - anaemia
•    2012 Bell's Palsy (Right)
•    2012 Hypercholesterolaemia
•    2012 Reflux - gastro-oesophageal
•    2014 Avulsion fracture
•    2015 Fatty liver
•    2017 Iron deficiency - anaemia
•    2018 Benign positional vertigo
•    Operations: Carpal tunnel release {bilateral)
•    Haemorrhoid banding in 2017."
He considered that the claimant had no diagnosed mental health disorder, or treatment before the accident. In the period between 2005 to March 2020, she did have high levels of anxiety about her health, so that a diagnosis of a somatic symptom disorder could be made. After the accident the claimant reported anxiety about driving, that was related to her inability to use her right arm, combined with anxiety that she would be involved in another accident. Following the surgery on her shoulder, she reported a worsening of anxiety symptoms.
Medical Assessor Newlyn considered that as a result of the accident, she did have an adjustment disorder, with mixed anxiety and depressed mood, persistent, resulting in 6% WPI.
Dr Alexander Woo, orthopaedic surgeon, reporting on a medicolegal basis on 22 August 2022 was of the opinion that claimant had sustained the following injuries during the accident:
(a)   cervical spine - soft tissue injury;
(b)   lumbar spine - soft tissue injury, and
(c)    right shoulder soft tissue injury and post- operative frozen shoulder.
He was of the opinion that her ongoing disabilities were neck pain, lower back pain, with non verifiable radicular complaints to the upper and lower limbs. She had ongoing right shoulder pain with restricted movement.
With respect to her work capacity, Dr Woo commented that the claimant was last employed in about March 2020, when she was working as an Assistant in Nursing. She ceased work at that time to help look after husband for a short period of time, with the intention of returning to work. However, the intervening accident has prevented a return to work by reason of her ongoing injuries. She had no capacity to return to any form of employment as a result of the injuries sustained in the accident and had no capacity to return to any form of employment in the foreseeable future. He assessed the claimant on 1 September 2022.

Medicolegal report of Dr Charles (Phil) Allen, consultant orthopaedic surgeon

Dr Allen took the following history when he reviewed the claimant on 1 September 2022:
"Ms Ratanasirlak cooperated poorly with the assessment today and gave a poor history of her medical conditions. She repeatedly denied any significant past history of note and in fact, when challenged directly about the various conditions she had in the past, she initially denied them and then acknowledged them with obfuscation. She was also noted to have abnormal illness behaviour with voluntary restriction in range of motion as well as vocalisations, ocular occlusions, pseudo-collapsing behaviour and a significant number of spinal pseudo signs. The level of symptoms reported was out of step with objective clinical findings."
Dr Allen noted:
"She initially told me that she ceased work when she got married but then subsequently changed her story and told me that she actually worked as an assistant in nursing from 2015 to 2020. She was not working at the time of her accident."
In his report under the title 'physical examination':
"Owing to the abnormal illness behaviour, the voluntary restriction in motion and poor cooperation with the assessment a comprehensive physical examination could not be effectively undertaken... Further meaningful examination was not possible."
For the MRI scan of the right shoulder dated 6 March 2021, Dr Allen opined:
"There was no evidence of a traumatic lesion to the shoulder. There was evidence of long standing osteoarthritis of the acromioclavicular joint as well as degenerative tendinosis of the rotator cuff and partial thickness fibre deficiency. There was no evidence of any traumatic tear of the rotator cuff. The findings are degenerative and long-standing.
Dr Allen footnoted that:
"Tendinopathy (tendinosis) is a degeneration of the collagen protein that forms the tendon. It is not a traumatic condition. It is a degenerative, constitutional condition. Tendonitis, on the other hand, is inflammation of the tendon which may, or may not, have an underlying traumatic aetiology."
Dr Allen concluded:
"On the basis of the assessment I have been able to perform today I see no evidence of any significant material injury to the cervical spine, the shoulder or the lumbar spine in the index accident over and above a possible transient exacerbation of pre-existing pathology in these three areas.
The level of symptoms reported today is out of step with the objective clinical findings and the radiology. A comprehensive examination was not possible owing to poor cooperation and marked abnormal illness behaviour."
On the issue of causation, Dr Allen opined:
"Her conditions are in the main, constitutional and degenerative in nature. At the utmost there may have been a possible transient exacerbation of her pre-existing pathology in her spine and shoulder. There is insufficient objective evidence of any significant material injury to these areas."
Dr Allen diagnosed the claimant with a transient exacerbation of pre-existing degenerative disease.

EVIDENCE AT THE ASSESSMENT CONFERENCE

The claimant's evidence in chief

Pre and post-accident health

On page 2, the claimant was questioned about her health prior to and after the accident:
"Mr Jones: In your first statement at paragraph 3 you say: "I was in good health prior to this accident." Can you explain what you mean by good health?
Ms Ratanasirilak (Int): I was able to go to work.
Mr Jones: But is there anything else about that notion of being good health?
Ms Ratanasirilak (Int): Look after my family, doing houseworks.
Mr Jones: After this accident do you feel like you're in good health?
Ms Ratanasirilak (Int): No.
Mr Jones: Why not? How has it changed?
Ms Ratanasirilak (Int): I haven't been able to cook.
Mr Jones: Is there anything else you haven't been able to do
Ms Ratanasirilak (Int): Myself if I have to wash my hair I have to ask my daughter to help me to wash my hair and housework about the house. I used to be doing everything but I can't do anything by myself now.
Mr Jones: In respect of how you're feeling today do you feel like you could go back to the work you were doing before the accident?
Ms Ratanasirilak: No. No.
Mr Jones: Why not?
Ms Ratanasirilak: Because work is very hard."

Cross examination

The cross - examination led by Ms Allan interrogated why the claimant had not been able to return to work since the accident.
The cross -examination was extensive and took well over an hour. It would not be productive to reproduce the entirety of the cross examination, the most relevant sections have been summarised.
"Ms Allan: On the 2nd of March 2020 your GP records show that you had a recurrence of left upper back pain.
Interpreter: Which year, sorry?
Ms Allan: 2020. The year of the accident, do you understand? Ms Ratanasirilak (Int): Yes.
Ms Allan: And the GP has recorded that you were stressed at work and it was not a good work environment, you still had to do a lot for your husband, do you remember that?
Ms Ratanasirilak (int): When I was tired I would tell the doctor anything.
Ms Allan: It was soon thereafter- soon after that appointment that you changed jobs from your fulltime role at the nursing home to a part-time role at BUPA, correct?
Ms Ratanasirilak: Yes.
Ms Allan: And I think you were earning $800-and-something a week in your hand at the nursing home but your pay reduced to about $440 a week when you changed to the part time role, isn't that right?
Ms Ratanasirilak: Yes, because ...(not transcribable 00:50:37)..
Ms Allan: Because why?
Ms Ratanasirilak: I had to look after my husband.
Ms Allan: Because it was becoming increasingly difficult for you to be working fulltime and looking after your husband when at the same time you were suffering from pains in various parts of your body, that's the case, isn't it?
Ms Ratanasirilak (Int): That's not right. I just prefer- it's my preference to spend more time with my husband.
Ms Allan: You say in paragraph 41 of your statement that you needed to take time off, did you just take time off from your job or did you quit?
Ms Ratanasirilak (Int): Temporary time off to look after my husband.
Ms Allan: But you told your GP on the 10th of July, 2020 that you quit your job, isn't that correct?
Ms Ratanasirilak (Int): My proposal is to temporarily stop from work but the employer isn't agree and said it is too long so I was ceased from work completely."
On page 37 of the transcript, Ms Allan interrogates the circumstances around the claimant's husbands' condition and treatment:
"Ms Allan: Your husband had been quite incapacitated since he'd had a lumber disc decompression surgery on - in July 2019, hadn't he?
Ms Ratanasirilak: Yes.
Ms Allan: And he was under pain management under Dr Boesel?
Ms Ratanasirilak: Yes.
Ms Allan: And he'd had a spinal stimulator inserted on the 30th of June, 2020?
Ms Ratanasirilak: Yes.
Ms Allan: Did you leave work before or after the spinal stimulator was inserted?
Ms Ratanasirilak (Int): After.
Ms Allan: After. And is that because he had a reaction to the spinal stimulator?
Ms Ratanasirilak (Int): Yes.
Ms Allan: And - but he recovered from that fairly quickly, didn't he, because they removed it?
Ms Ratanasirilak (Int): Wasn't go away because the - after removal of the stimulator it didn't help.
Ms Allan: Right. So he was still in significant pain? Ms Ratanasirilak (Int): Yep."
On page 45, Ms Allan closed the cross - examination:
" Ms Allan: And regardless of the accident you would've remained off work to care for your husband as you have been doing, isn't that the case?
Ms Ratanasirilak (Int): (NO AUDIBLE REPLY)
Ms Allan: I've got nothing further."

SUBMISSIONS

Insurer's submissions, dated 20 December 2023

Part A: Non-economic loss

The claimant has been assessed for physical and psychiatric injuries under the 11% WPI impairment threshold.
NRMA submits the claimant is not entitled to non-economic loss.

Part B: Past economic loss

The claimant claims $110,000.00 for past economic loss plus $10,450.00 for past superannuation.
The claimant is a 61-year-old female who was unemployed at the time of the accident.
The claimant was in receipt of a carer pension from Centrelink as she was providing fulltime care for her husband. The claimant particularises that prior to her carer's role, she was previously employed as an Assistant in Nursing.
NRMA submits that the claimant was unemployed and a carer for her husband at the time of the accident and that it is unlikely this was to change into the future but for the accident.
The claimant had significant pre-accident medical history, making complaints of ongoing pain in her right shoulder, neck and back since about 2005. NRMA relies on the plethora of radiological evidence which confirms that the claimant had long standing pre-existing medical conditions which suggest it was unlikely she would have returned to work but for the accident.
NRMA submits that the claimant was not employed at the time of the accident and was in receipt of Centrelink carer pension as she was a full-time carer for her husband.
NRMA submits that the claimant has been assessed for physical and psychiatric injuries at the Commission. Both of these assessments have resulted in a determination that the claimant does not exceed the whole person impairment threshold.
NRMA submits that the claimant is not entitled to damages and her claim ought to be dismissed in its entirety.

Claimant's submissions, dated 5 March 2024

The claimant submits that it is not in dispute that there is no entitlement to non-economic loss as she does not exceed the required threshold. However, the Claimant claims that notwithstanding that she was not in employment at the relevant time, she would have returned to employment towards the end of the 2020 year and would have returned to working in the aged care industry. By reason of her injuries, the Claimant claims that she has not been able to do so and has been certified unfit to return to work since the date of accident.
The claimant’s evidence is that her husband had suffered injuries in 2015 which progressed to him having to undergo surgery in 2017 and again in July 2019. His condition did not significantly improve following the second lot of surgery and he got to the stage where he needed assistance from his wife. In early 2020, the claimant was working in a full-time capacity in an aged care facility. She ceased that job to take up a part-time position with BUPA however only remained in that part-time position for about 3 months before leaving the workforce in June 2020 to care for her husband.
Her intention was to return to the workforce in late 2020. She gives a plausible explanation that she could have returned to part-time work just prior to Christmas in the aged care industry. She is aware that there is a large demand for aged care workers generally at that time of year and it is quite reasonable to suspect that she would have been able to obtain part-time employment, certainly in the period leading up to Christmas.
The claimant concedes that from the period June 2020 until the date of the accident, she was caring for her husband and received carers benefit through Centrelink. Her husband, in his statement concedes that he clearly needed help at that time, but towards the end of the 2020 year he had lost a considerable amount of weight through a change in diet and that largely helped with a reduction in his pain levels. He does go on to say however that by mid- 2021 he had reached a point where his pain had reoccurred, and further surgery was being recommended. However, that surgery was delayed for over 12 months.
It should be noted of course that they also had their eldest daughter living with them at the time who had her own health issues, but by about 2021 would have been able to offer assistance in looking after her father.
In November 2020, an assessment was carried out by ReCare Services to assess her capacity to return to her pre-injury functioning. It was noted that she was active in respect of all household duties prior to the accident however since the accident she has been unable to perform these, which is indicative of the level of pain that she was experiencing following the accident.
A scan taken on 30 November 2020 shows a full thickness supraspinatus tear to the right shoulder with bursitis and impingement. At page 27 there is a report from Dr Kuo dated 22 February 2021 which details the extent of the right shoulder pain as well as the neck and back injuries and the recommendations for investigations. This ultimately led to the need for her to undergo surgery. At page 47, the claimant was assessed by
Dr Boesel at the Western Sydney Pain Centre. Dr Boesel felt that her overall condition was poor and that she was not able to work. When she saw Dr Newlyn in May 2023,
Dr Newlyn recorded a history at page 121 where he has noted;
"He had four operations and did not return to work. I left work in 2020 because he was quite bad after the last operation. Now he is up and down. I am not doing anything to help him. It is stressful and I cannot pull myself together to help him. Now my daughter, Jane helps. I argue with him. I get angry him and everyone in the family because it is so stressful."
At page 122 he records a history:
"Work had become a problem because of stress with a workmate. But I had to work to support my family. I quit work in July 2020 to care for my husband".
There is clearly no issue in this case that the reason why the claimant left work in mid-2020 was to care for her husband. She remained out of work until the date of accident. The issue in the case is quite a narrow issue in that the claimant states that she was intending to return to work, whereas NRMA states there is no economic loss available to her as she was not working at the time of accident.
The claimant would submit that it is important to look at her employment history to determine this issue. In her Statement at page 5 she describes how she completed two TAFE courses in 2013 and had a desire to work in aged care following the loss of her father. In 2014 she gained a Certificate Ill in Aged Care and started work in January 2015 in this field. Since then, and up until mid-2020 she had been employment in the aged care industry. At the date of accident, she was just shy of turning 59 years of age. At that time, she still had a reasonable work expectancy of 8 years. The evidence would suggest that the family are not in a strong financial position as she has previously made comments that she had to work for financial reasons.

The evidence in our submission would suggest that her injuries have prevented her from returning to work in the aged care industry and it would be reasonable to assume that at some point when her husband was in a position to care for himself, or there were other family members who could provide care, she would have certainly returned to work. She anticipates that that would have been just prior to the end of the 2020 year. As her husband's condition has fluctuated from 2020 onwards, one might reasonably expect that there could have been times that if she was working on a part-time basis she would have not accepted work. Whilst the claimant's Schedule of Damages is put on the basis of permanent full-time work based on her pre-accident earnings, the Claimant concedes that that figure should be discounted for periods when she potentially may not have worked in order to offer some assistance to her husband. At the same time however, it appears that she has become very frustrated at being at home in a carer’s role. She points out that she does not do anything for her husband anymore and her daughter has taken that role on, but it also seems that the husband can now do a lot more for himself. In that situation one would reasonably think that the Claimant would return to the workforce. She in fact gave that history to Dr Woo.
The claimant submits, considering that she had an eight year working life expectancy, that if not for her injuries, should would have returned to the workforce in the aged care industry and would have continued working potentially until the age of retirement, whether it be on a permanent or part-time basis.

NRMA's submissions in reply to claimant's further material, dated 4 June 2024

NRMA maintains its submission that the damages claimed are not just, fair and reasonable taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.

Part A: Mr Ratanasirilak's Medical Condition

NRMA submits that Mr Ratanasirilak was greatly impaired at and around the time the claimant alleges it was her intention to return to work in late 2020.
NRMA refers to the Statement of Pricha Ratanasirilak dated 5 March 2023.
Mr Ratanasirilak reports he sustained a back injury at work in 2015 and was later involved in a car accident the same year where he injured his neck. In 2017 he underwent surgery of a left L4/5 and L5/S1 laminectomy and neurolysis. On 5 July 2019 he underwent further surgery by way of decompression of the L4/5, L5/S1, following which he was transferred to a rehabilitation hospital and discharged on 12 August 2019. After his second surgery his condition deteriorated. By February and March 2020, he required assistance around the home, therefore his wife (the claimant) left her position with BUPA Aged Care to spend more time assisting him and taking him to his medical appointments. On 30 June 2020 he was admitted to Macquarie Hospital and underwent neurostimulation treatment, following which he was rushed to theatre for a stimulator removal and remained in intensive care for three nights. Mr Ratanasirilak states at paragraph 11 that he and the claimant decided that she would take time off work so she could be at home with him on a daily basis, however, this was a short term arrangement as he had hoped his condition would eventually stabilise. Mr Ratanasirilak states that the claimant would most likely return to her employment prior to Christmas in 2020. The reason for this timeframe was that he was hopeful after a few months of treatment he would be comfortable to stay at home on his own. However, at paragraph 15 Mr Ratanasirilak admits that in mid-2021 his pain reoccurred, and he was recommended further surgery, which he eventually proceeded with in December 2022.
NRMA refers to the report of Assessor Dr Mark Burns, Occupational Physician which confirms that Mr Ratanasirilak was enduring ongoing pain and considering a second neurostimulator insertion procedure in November 2020. NRMA submits that it would be unlikely that the claimant was intending to cease her carer duties at this time in circumstances where her husband was yet to undergo a surgical operation, which previously left him in intensive care.
NRMA refers to the additional Vocational Capacity Report dated 23 January 2023 which notes that the claimant ceased working as an assistant nurse in 2020 to be her husband's 'full-time' carer. It was reported that on Mr Ratanasirilak's bad days the claimant continues to assist with washing his legs. Following the assessment, it was concluded that Mr Ratanasirilak did not demonstrate the physical capacity to perform manual work, however, he demonstrated the ability to perform sedentary and selected light duties on a full-time basis.
NRMA refers to the report of Dr Abeydeera dated 9 April 2023, where it is reported that due to Mr Ratanasirilak's physical limitations it is unlikely he would return to his pre injury level of physical ability, and it is unlikely he will be able to perform his former domestic duties. Furthermore, Dr Abeydeera's records that Mr Ratanasirilak was awaiting further surgery in April 2023, which suggests that his condition did not improve as early as the claimant says it had and the chances of her returning to work as a nurse in late 2020 are not plausible.

Part B: Claimant's Medical Condition

In addition to Mr Ratanasirilak's deteriorating condition and the claimant's requirement to care for her husband, NRMA submits the claimant herself was not in good health prior to the accident. NRMA refers to and relies upon the records of Rooty Hill Medical & Dental Centre which indicate that the claimant had a significant preexisting medical history including, neck pathology/foraminal stenosis, neck pain radiating into right arm, ongoing neck dysmetria, bilateral shoulder injury and pain in the lumbar spine, Type II diabetes, anaemia, avulsion fracture and carpal tunnel syndrome. The claimant consulted her GP for anxiety and depression in 2005 and 2009 respectively. The records also document that the claimant had previously been involved in a number of motor accidents summarised as follows:
(a)   13 December 2009: complained of back pain and sore right-side 3rd toe nail;
(b)   16 January 2015: she was a passenger in a vehicle driven by her husband when they were involved in a rear-end collision. The claimant reported sore left upper back. On examination, it was noted the claimant has slightly reduced cervical rotation to the right and tight muscles in the left upper back;
(c)    24 May 2017: rear-end collision on Great Western Highway travelling at about 70 kmph, reported low back pain, right leg feels a bit heavy, paraspinal lumbar area mildly tender, and
(d)   23 June 2017: MVA on 22 June 2017 when she was changing lanes and did not see a car in blind spot, was hit on the driver's side, reported having sore right low back, pain does not radiate to legs however pain is worse on movement.
NRMA refers to and relies on the bundle of various diagnostic and radiological reports which confirm that the claimant had an extensive pre-existing medical history of spinal conditions dating back to 2005.
NRMA refers to and relies on the medico-legal report of Dr Charles (Phil) Allen, Orthopaedic Surgeon dated 6 September 2022. Dr Allen diagnosed the claimant with transient exacerbation of pre-existing degenerative disease. Dr Allen opined the claimant's conditions were mainly constitutional and degenerative in nature and at the upmost there may have been a possible transient exacerbation of her pre-existing pathology in her spine and shoulder. Dr Allen assessed the claimant's WPI as 0% as he found there to be no impairment attributable to the accident due to insufficient objective evidence.
Dr Allen noted the claimant has long-standing cervical spine disease, lumbar spine disease and right shoulder disease. In particular, Dr Allen noted the claimant has had bilateral shoulder pain for at least 12 years with regular treatment. Dr Allen reported that a comprehensive physical examination could not be effectively undertaken due to the claimant's abnormal illness behaviour, voluntary restriction in motion and poor cooperation with the assessment. It was noted the claimant was reluctant to move her right arm at all and was also reluctant to move her neck or back. Neurological examination of the upper and lower extremities was normal. Overall, Dr Allen found no evidence of any significant material injury to the cervical spine, the shoulder or the lumbar spine arising from the subject accident over and above a possible transient exacerbation of pre-existing pathology in these three areas.
The claimant reported to Dr Allen that she was currently unemployed and was taking care of her husband. Dr Allen noted that there was insufficient objective evidence of material injury sustained which would have been sufficient to have impacted on her physical capacity. Dr Allen considered the subject accident was not responsible for any incapacity and that it related to her various degenerative conditions.

CLAIMANT'S FURTHER SUBMISSIONS, 13 AUGUST 2024

Part A: Medical Evidence

The claimant noted it was worth contrasting the credibility case against the claimant to the medical opinions, the weight of which was supportive of the claimant having sustained injuries which continued to have a negative impact on her.
Dr Woo, orthopaedic surgeon, reported on 22 August 2022. He was aware of the claimant's prior health problems but, relevantly, noted that immediately before the accident she did not have any neck or back symptoms. A detailed history of the claimant's progress was taken, and he concluded that she had suffered injuries to her cervical spine, lumbar spine and right shoulder. Ongoing symptoms, referrable to those injuries, were noted. Dr Woo accepted the claimant could not return to work as an Assistant in Nursing by reason of her accident-related symptoms.
Medical Assessor Menogue issued a certificate dated 16 March 2023, finding the claimant had suffered soft tissue injuries to her cervical spine, right shoulder and lumbar spine. Like Dr Woo, Medical Assessor Menogue was aware of the claimant's health issues before the accident and still found those injuries had been caused by the accident. Medical Assessor Menogue was also satisfied that the claimant experienced ongoing symptoms referrable to those injuries. Indeed, the injury to the claimant's right shoulder was found to give rise to a 7% WPI.
Medical Assessor Newlyn issued a certificate dated 15 July 2023, finding the claimant had developed an adjustment disorder with mixed anxiety and depressed mood, which was persistent, consequent to the accident. That condition gave rise to a 6% WPI, with impairment across all categories of Psychiatric Impairment Rating Scale (PIRS).
The opinion of Dr Allen, orthopaedic surgeon, is against the weight of the evidence. He reported to NRMA on 6 September 2022. Dr Allen was only prepared to accept that the claimant had suffered a 'possible transient exacerbation of pre-existing pathology' in her cervical spine, lumbar spine and right shoulder. That was referrable to the fact that he considered the claimant demonstrated abnormal illness behaviour, voluntarily restricted her movement and did not co-operate during the assessment such that it could not be comprehensively conducted. Of note, no other expert was of that view.
The medical evidence is significant in that the majority of medical experts accept that despite the claimant's previous problems, the accident did give rise to new discrete injuries. That is an objective matter favouring a finding of ongoing disability.

Part B: Credibility of the claimant

I had had the benefit of seeing and hearing the claimant give evidence. At times she was confused and there were obvious language barriers. Those communication difficulties were compounded by the stress associated with the claims process such that the claimant tended to be forgetful (see from T1:1 - TT2:7). That goes some way to explaining the various criticisms levelled against her during the course of her giving evidence.
Furthermore, the attack mounted on the claimant's credit largely stems from her reporting of being in 'good health' before the accident. It is important to understand what the claimant meant by being in 'good health'. The claimant explained that when talking of being in 'good health' she meant that she was able to work, look after her family and do housework (T2:29- T3:7). That is not to say the claimant did not have any health issues, merely that she was highly functional despite them. The claimant was at pains to emphasise that fact when giving her evidence. Against that background, it is telling that the claimant was able to work for years prior to the accident, concurrent to the problems documented in the clinical records, whereas after the accident she was not. The claimant was unwavering in that regard. In contrast, after the accident the claimant felt she could not go back to work (T3:26) because the work was 'very hard' (T3:35) and evidently beyond her capacity given her symptoms. That the work was very hard, yet the claimant was doing it previously, is also a factor which diminishes the supposed significance of the prior documented problems.
The above points also serve to reinforce the cautionary remarks about the weight to be given to what is recorded in clinical notes, see generally Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] per Basten JA and Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA.
It is said against the claimant that her answer to the question about prior problems in the Application for Personal Injury Benefits dated 27 October 2020 undermines her credit. That is to put a gloss on what was asked and the claimant's answer.
The question asked was 'were you suffering an illness or injury affecting the same or similar parts of your body at the time of the accident (emphasis added)'. The claimant answered 'no'. That is consistent with her reported functioning before the accident.
The claimant performing domestic duties after the accident is not incompatible with her being unable to return to work, particularly given the claimant's work pre-accident was 'very hard'.

Part C: Objective matters

There are objective matters which favour against a finding that the claimant has been deliberating overstating the effect the accident has had on her and staying away from work. The claimant gave evidence that she had withdrawn money from her superannuation fund (T4:4) and still has ongoing financial commitments. The claimant was also better off, financially, when she was working {T5:29). It beggars belief on the facts of this case to conclude that despite being faced with such difficulties, the claimant elected not to return to work to address the situation but rather submit to a life of financial uncertainty.
The claimant has also had surgery to her right shoulder and injections. Again, if the claimant's symptoms were other than genuine, it would be an extreme situation whereby she would undergo such procedures merely in an endeavour to inflate what damages she might recover. Appropriately, that was never suggested of the claimant.
As touched on above, despite the claimant's history of problems before the accident, the one constant in her life was her work. She continued working all the while presenting for those problems. That was not the case after the accident as her symptoms were too invasive.

Part D: What to make of the Claimant's Prior Symptoms?

The principle in Watts v Rake (1960) 108 CLR 158 was clarified in Purkess v Crittenden (1965) 114 CLR 164, with Barwick CJ, Kitto and Taylor JJ stating:
"where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.”
NRMA has not obtained any medical evidence to overcome the evidentiary burden they face. Given the opinions of Dr Woo, Assessor Menogue and Assessor Newlyn, it is not open to NRMA to merely refer to the clinical records and assert they are proof the claimant's prior health issues explain her ongoing complaints, particularly having regard to her evidence about her 'good health' before the accident. This matter is a classic illustration of the 'eggshell skull' principle in that NRMA must take the claimant as it finds her.

Part E: The Claimant's Most Likely Future Circumstances

The claimant submits that her most likely future circumstances but for the accident are that she would have eventually returned to work. The claimant had a long history which demonstrated her drive to work. There is no reason to believe that would have changed.
There is medical evidence supportive of ongoing disability and the claimant's evidence about her being unable to perform her pre-accident duties because of same.
The general approach outlined in the claimant's previous submissions remain appropriate, save that a return to full time work may not have been enjoyed from November 2020 despite the claimant's optimism. However, the Member can be comfortably satisfied that by November 2020, the claimant would have returned to, at least, some part-time work.
While the claimant's husband continued to be troubled by his own injuries and seek treatment, that had been the case before the claimant ceased work. The claimant and her husband had managed then and it reasonable to suppose that they could have managed the situation from November 2020. That they had the assistance of their daughters favours such a conclusion.
By way of compromise, the claimant submits that an appropriate assessment of her past economic loss is as follows:
(a) Partial loss of pre-accident earnings (say $440 net per week to reflect part- time work being foregone) from November 2020 to September 2023 (being the approximate date of the 2023 surgery).
(b) 148 weeks (being from 1 November 2020 to 1 September 2023) x $440 net = $65,120.
From 1 September 2023 onwards, the claimant submits she would have returned to fulltime work and claims a total loss of capacity until a requirement age of 67. The claimant claims such loss at the rate of $880 net per week.
Superannuation is claimed on the past net loss, being 11% of that loss.

Superannuation is claimed on the future net loss, being 14% of that loss.

THE CLAIMANT’S FURTHER SUBMISSIONS DATED 10 SEPTEMBER 2024, ADDRESSING MATTERS RAISED BY ME

The claimant’s further submissions of 10 September 2024 are summarised below by reference to paragraph number.
[2] To properly answer the questions posed, it is necessary to understand the likely findings to be made. The following likely findings are of particular significance:
a. The claimant did suffer an injury consequent to the accident.
b. The injury sustained has caused a reduction in the claimant’s earnings capacity.
c. The claimant was looking after her husband before the accident and would have continued to do so after the accident.
d. But for the accident and despite caring for her husband, the claimant would have returned to work, including because of the financial pressure she was under, as an Assistant in Nursing.
When would the Claimant have returned to work?
[3] The claimant invites the Member to find that but for the accident, she would have returned to part-time work from 1 November 2020 and continued to work part-time until 1 September 2023, when she would have recommenced full-time work.
[4] In her statement dated 9 November 2023, the claimant said it was her intention to return to work around November 2020, at [42]. The claimant gave a cogent reason for that, explaining the Christmas period was very busy, at [44]. The claimant had intended to return to work as an Assistant in Nursing, at [46].
[5] NRMA’s position, in their written submissions dated 29 July 2024, is that the claimant would not have returned to any work until ‘at the very least 2024’ but that most likely never, see at [48] of the submissions.
[6] The proposition that the claimant would never have returned to work should be rejected for the reason touched on previously in writing by the claimant; also, neither the claimant nor her husband agreed that was to be the arrangement. This general proposition is not addressed further given it is contrary to the indicated likely findings.
[7] The nominated date of 2024 is predicated on false assumptions, namely that any return to work would not have occurred until after the claimant’s husband had fully recovered from his own injuries and after the surgery he had in 2023 (from which he enjoyed a good result). That was not the claimant’s evidence. Regardless, the claimant’s husband was not definite about those dates and only offered his supposition about the claimant’s situation, see at T65:24 (it is also submitted the evidence is not as definitive as NRMA has suggested).
[8] The claimant’s situation is also not as simple as NRMA has suggested.
[9] While the claimant’s husband was still troubled by problems, his level of functioning had improved over the years, from [13] through [16] of the claimant’s husband’s statement dated 5 March 2024. That is not to say no help was needed, the claimant acknowledges some was, but rather that there was a lesser need.
[10] The claimant’s evidence was that she had intended to return to work but for the accident. When asked directly about the accident and a return to work after December 2021, the claimant did not embrace that. The claimant was consistent, she had intended to return to work earlier (T41:17). Even when pressed, the claimant did not agree that her husband’s health was the reason she had not returned to work (T42:3-6).
[11] The claimant is best place to talk about what her most likely future circumstances were to be, and her evidence should be preferred to her husband’s on that point, albeit it understood in the context he explains he was gradually able to do more for himself.
[12] NRMA’s position also ignores the level of assistance which could have been rendered by the claimant’s daughters, two of whom were living with them, at [43] of the claimant’s statement. While the claimant’s daughters had their own commitments, it does not follow that would have precluded them from providing some assistance, which would have permitted the claimant to work, even part-time. Indeed, the claimant’s daughters contributed to the household (T66:34).
[13] Weighing up the above, the claimant submits that the Member would find:
a. The claimant would have continued to provide some assistance to her husband until his surgery in 2023.
b. The claimant’s daughters would have also been available to provide some assistance to their father over that period, noting they lived in the same house.
c. While the claimant’s husband still needed some help around the home after November 2020, his level of functioning was improving from 2020 onwards and he had learned to manage his problems.
d. The above would have seen the claimant return to at least part-time employment from November 2020.
[14] Informed by the above, the claimant submits a fair assessment of her past economic loss is:
a. Partial loss of pre-accident earnings (say a loss of $440 net per week to reflect part-time work, being half-hours) from November 2020 to September 2023 (being the approximate date of the 2023 surgery).
b. 148 weeks (being from 1 November 2020 to 1 September 2023) x $440 net = $65,120.
[15] From 1 September 2023 onwards, the claimant submits she would have returned to fulltime work and claims a total loss of capacity. Presuming reasons are delivered in September 2024, the loss would be some 56 weeks (the Member will have the precise date), such that the loss is:
a. 56 (being the weeks between 1 September 2023 and the date of the certificate) x $880 equates = $49,280.
[16] In the future, the claimant claims a total loss until age 67.
[17] The claimant turns 63 on 16 December 2023. If the Member is minded to allow further compromise on the claimant’s position, a total loss from that date equates to $150,163.20, reflecting:
a. $880 x 189.6 (5% multiplier fo4 4 years – being from age 63) = $166,848 b. $166,848 x 0.9 (only a 10% reduction for vicissitudes is warranted given the short duration of the loss makes it more likely it will be realised and fact the loss is calculated from December 2023) = $150,163.20
[18] The method used to arrive at the weekly rate of $880 net is explained in the claimant’s schedule of damages dated 5 March 2024. In short, it reflects the average net income the claimant earned in the two full financial years before the accident. The rate of $440 net, which is used in the past, is simply half of that.
[19] Superannuation is claimed on the past net loss, being 11% of that loss.
[20] Superannuation is claimed on the future net loss, being 14% of that loss.
[21] In the alternative, if there is any imprecision, a buffer for the past but also the future, is warranted.
INSURER’S SUBMISSIONS DATED 18 SEPTEMBER 2024, PURSUANT TO MEMBER STERN DIRECTIONS
Part A: Assessment of future wage loss
[2.1] It is trite to note that the Member is obliged to assess the Claimant’s most likely future circumstances in assessing the Claimant’s future wage loss.
[2.2] Section 13 of the Civil Liability Act 2005 (CLA) provides guidance in fixing damages for economic loss noting:
(1) A court cannot make an award of damages for future economic loss unless the Claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the Claimant’s most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
[2.3] Section 140 of the Evidence Act (NSW) (EA) provides that the relevant evidentiary standard required to determine the appropriate award of damages in a case of personal injury negligence is that of the Civil Standard, On the Balance of Probabilities. That being that, on the evidence, the court/commission is to be satisfied that the fact asserted by the plaintiff is more likely than not to be correct.
[2.4] The aim of a damages award is to provide a sum of money that, so far as money can do, will put the injured party in the same position as if the wrong (i.e. tort of negligence) had not occurred. 1 As for the period until the date of assessment, so for the period thereafter, the plaintiff is entitled to damages for the difference between the earning capacity as it would have been if there had not been an injury and the earning capacity as it now is.
[2.5] The difficulty in assessing the net loss in matters such as the present, is accentuated by reason of the uncertainty, speculation and conjecture which surrounds both the hypothetical capacity (what would have been earned if there had been no injury) and the actual capacity (what can now be earned if the plaintiff acts reasonably). Statutes in NSW require the Court to state the assumptions on which an award for future economic loss is based, and the relevant percentage by which damages have been adjusted.
[2.6] Particularly in matter such as the present, NRMA submits that the Claimant’s individual circumstances are relevant, in considering the difference between her earning capacity before and after the injury, regard must be had to all individual circumstances.
[2.7] The principles to be applied to both past and future loss of earning capacity are discussed at length in the matter of Kallouf v Middis [2008] NSWCA 61 at [46]-[61]
(a) Damages for both past loss and future loss are allowed to an injured plaintiff “because the diminution of his earning capacity is or may be productive of financial loss”: Graham v Baker [1961] HCA 48 ; (1961) 106 CLR 340 (at 347) per Dixon CJ, Kitto and Taylor JJ;
(b) Although it is loss of earning capacity and not loss of earnings that is the subject of compensation, the rate of wages being earned and the rate of wage likely to be earned in the future afford a basis for assessing compensation for the loss of earning capacity. Expectation of working life is also an element in that assessment: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9 ; (1968) 122 CLR 649 (at 658) per Barwick CJ;
(c) It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position he or she would have been in if injury had not been sustained. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is one about the likely course of future events and evidence of past events does not always provide certain guidance about the future: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at [7]–[8] per Gleeson CJ, Gummow, Kirby and Hayne JJ;
(d) Any assessment in respect of the impairment of future earning capacity necessarily involves a consideration of possibilities. In some cases, it would be an error in treating as certain the fact that a plaintiff would lose wages for a period of years from the date of trial. Where incapacity is established as at the date of trial, what is to be evaluated will be the extent of the possibility that the plaintiff may not work in the future or may lose time from work and determine the allowance of proper compensation in respect of that possibility. That evaluation will depend upon the evidence. Where there is no evidence to support a conclusion that, as a matter of certainty, an injured plaintiff would not earn monies from employment for a number of years post trial, then such a finding would involve an error of principle: Ahmedi v Ahmedi (1991) 23 NSWLR 288 (at 302) per Clarke JA, Handley JA agreeing;
(e) At common law the onus rests on the plaintiff to prove he/she is incapable of undertaking employment which medical evidence demonstrated he was capable of undertaking: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 (at 132–133) per Sugarman JA
Part B: Loss of Earning Capacity
[2.8] In the plain case, where a personal injury has occurred, the plaintiff in receipt of some earnings, wages or salary at the time of the negligence claims damages for the economic loss flowing from the impairment of his or her ability to earn such money, if damages are to be based on the plaintiff’s lost earning capacity, then regard must be had to the ‘objective monetary value’ of that capacity qua capacity. This principle involves a comparison between what the injured [man/women] was capable of earning in his uninjured state and what [he/she] will probably be able to earn in employment suitable to his injured state (Reynolds J.A. in Yammine v Kalwy [1979] 2 NSWLR 151 at 154).
[2.9] However, NRMA submits, this is not the case here, noting that the claimant was unemployed and in receipt of a carer payment from Centrelink at the time of the accident.
[2.10] NRMA concedes that there is case law providing guidance for circumstances like the present matter where at the time of the injury a person is not in the paid workforce or is not working to full capacity which does not prevent or limit a claim for loss of earning capacity or loss of earnings. However, the case law suggests this can only be the case provided that the plaintiff can show that but for their injuries they might have worked and earned in the future and are entitled to compensation.
[2.11] Factors affecting earning capacity is dependent both on factors relating to an individual’s body and mind and on external factors, such as the availability of work. There is little doubt that in so far as external factors would have prevented the exercise of a capacity that a person possessed; deprivation of that capacity does not sound in damages (per Windeyer J in Faulkner v Keffalinos (1971) 45 ALJR 80 at 85). Therefore, a plaintiff cannot claim damages for loss of the capacity to work if there would have been no opportunity to work in all of the circumstances.
Part C: Member Stern’s tentative conclusions
[3.1] NRMA refers to my tentative conclusions of 5 September 2024:
(a) The Claimant is to be accepted on her credit.
(b) The shoulder injury was probably caused by the accident.
(c) Prior to the accident, the Claimant had the capacity to work full-time and to derive income from work as an Assistant in nursing in the aged care sector.
(d) After the accident the Claimant had reduced capacity for employment and was incapacitated for employment primarily by reason of her shoulder injury and would be incapacitated long term
(e) Prior to the accident the Claimant was looking after her husband full-time. Assuming it had not happened, then by reason of her self-perceived duty to care for her husband, she would have continued to have looked after him, at least for a time rather than have returned to work as an Assistant in nursing in the aged care sector.
(f) Although the three daughters of the Claimant had a filial duty to help their mother (and father) by contributing to the care of their father, there is no evidence as to whether, when, how or for how long they would have done this.
(g) Nevertheless, the Claimant and her husband had some financial pressures compared to the time at which the Claimant was working full-time and earning a living as an Assistant in nursing. The Claimant was motivated, if at all possible, to return to work, full-time and probably in the same capacity, that is, as an Assistant in nursing.
(h) Therefore, it is likely that but for the accident, the Claimant would have returned to work at some stage in the period after the Accident (that is again, assuming the accident had not happened).
(i) I cannot determine with precision, the date on which, assuming there was no accident, that the Claimant would have returned to work, or the precise pay either full-time or part-time.
[3.2] NRMA acknowledges that for the foregoing reasons, I requested further submissions from each of the parties with reference to the relevant authorities. To this effect, NRMA provides the following further submissions.
Addressing tentative conclusions
Part D: The Claimant is to be accepted on her credit.
[4.2] NRMA respectfully submits that the degree to which the claimant’s evidence at the Assessment Hearing conflicts with the medical records and her husband’s own evidence is not consistent with a finding that the claimant is a credible witness.
[4.3] The claimant downplayed and misrepresented the extent of her pre-existing issues. We refer to NRMA’s submissions dated 29 July 2024 at paragraphs [9] to [23] inclusive and NRMA’s submissions dated 20 December 2023 at paragraph [9.3]. These detail numerous references to complaints regarding the neck, lower back and chronic right shoulder pain; various objective radiological evidence of prior issues, regular physiotherapy treatment and the regular use of analgesics.
[4.4] Similarly, the claimant’s evidence about her post accident functioning is conflicting with the evidence of her husband. NRMA’s submissions dated 29 July 2024 at paragraphs [24] to [32] refers.
[4.5] It is unclear how I can account for the extent of these inconsistences and find the witness to be a credible witness. The evidence must be accepted, on some level, to be inaccurate, if not self-serving.
Part E: The shoulder injury was probably caused by the accident
[4.6] NRMA submits that there is a plethora of medical evidence which clearly confirms that the claimant’s shoulder injury was pre-existing and therefore is not causally related to the accident.
[4.7] NRMA refers to the clinical notes of Rooty Hill Medical Centre, which confirm she had a significant pre-existing medical history including, neck pathology/foraminal stenosis, neck pain radiating into right arm, ongoing neck dysmetria, bilateral shoulder injury, lumbar spine pain, type II diabetes, anaemia, avulsion fracture and carpel tunnel syndrome. To accompany these physical impairments, she also consulted with her GP in 2005 and 2009 reporting anxiety and depression.
[4.8] NRMA refers to the referral letters of Dr Tan Nguyen to various treatment providers which notes a past history of Carpel Tunnel Syndrome as of 1 July 2004.
[4.9] The claimant underwent two cortisone injections in both shoulders in March 2005.
[4.10] The Claimant has reported being involved in four previous motor vehicle accidents, one in 2009, one as a passenger in 2015 and two accidents in 2017.
[4.11] Enhanced Primary Care (EPC) Program dated December 2008 to November 2009 confirm the Claimant was referred to Chiropractic treatment prior to the accident.
[4.12] Enhanced Primary Care (EPC) Program dated December 2010 to March 2020 confirm the claimant was referred to Family Physiotherapy treatment prior to the accident. NRMA submits the physiotherapy treatment was recommended for management of her pre-existing right shoulder pain.
[4.13] Two weeks prior to the accident, the claimant complained of ongoing back and shoulder pain, despite taking Mobic on a daily basis. The last consultation recorded prior to the subject accident was on 30 September 2020 when she reports occasional back and shoulder pain.
[4.14] NRMA refers to and relies on the medical records of Family Physio & Sports Injury Clinic which confirm the claimant had pre-existing medical history of spinal condition and headaches, for which she was receiving physiotherapy treatment for management of right shoulder pain, lower back pain and neck pain since early 2014. The claimant complains of right shoulder pain which caused headaches, she complained of constant pain in the left side of the lumbar spine which radiates down the left posterior thigh.
[4.15] A report of Family Physio & Sports Injury Clinic dated 30 December 2015 notes that she has a history of chronic shoulder pain for over 5 years, however, her pain recently got worse with an increased workload.
[4.16] NRMA refers to and relies on the medico-legal report of Dr Charles (Phil) Allen, Orthopaedics Surgeon dated 6 September 2022 who reports that the Claimant’s medical status is mainly constitutional and degenerative in nature and a transient exacerbation of her pre-existing pathology in the spine and shoulder.
(a)Dr Allen assessed the claimant’s whole person impairment at 0% on the basis that there is no attributable impairment to the subject motor vehicle accident.
(b)Dr Allen opines the claimant has a longstanding cervical spine disease, lumbar spine disease and right shoulder disease.
(c)Significantly, Dr Allen opines that the claimant has had bilateral shoulder pain for at least 12 years with regular treatment.
(d)Dr Allen reports that the claimant presented with abnormal illness behaviour, voluntary restriction in motion and poor concentration on physical assessment. It is reported that the claimant was reluctant to move her right arm at all and reluctant to move her neck or back.
[4.17] NRMA refers to and relied on the PIC Certificate of Medical Assessor Menogue dated 28 March 2023 who assessed the claimant’s right shoulder, cervical spine and lumbar spine for permanent impairment all of which he found to be below the threshold at 7% whole person impairment.
(a)Medical Assessor Menogue diagnosed soft tissue injuries to the cervical spine, lumbar spine and right shoulder
(b)Medical Assessor Menogue found contemporaneous evidence of right shoulder dysfunction going back many years.
[4.18] NRMA submits that causation refers to a physical, chemical, or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a). the alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) the alleged factor did cause or contributed to worsening of the impairment, which is a nonmedical determination. … causation and aggravation must be verified before awards are made. In contrast to traumatic injuries, which often can be related to an event that occurred at a particular time and place, the role of occupational or environmental factors in causing or aggravating disorders…. Documentation of “aggravation” or “causation” will depend in large measure on the acquisition, review, and analysis of existing office and hospital records dating from the onset of the condition..
[4.19] NRMA submits, that consistent with the medical evidence, the claimant’s right shoulder injury is not causally related to the subject accident.
Part F: Prior to the accident, the claimant had the capacity to work full-time and to derive income from work as an assistant in nursing in the aged care sector.
[4.20] NRMA submits that the claimant did not have the capacity to work fulltime and to derive income from work as an Assistant in nursing in the aged care sector at the time of the subject accident. The claimant’s pre-existing problems instigated the claimant’s cessation of duties as an AIN prior to the accident as well as noted work stressors. The medical records of Rooty Hill Medical Centre establish that by 2 March 2020, 7 months prior to the accident, the claimant was complaining of feeling very stressed at work, with a heavy workload and not a good work environment. She also noted that she still had to do a lot for her husband. It was around this time that the claimant left her full-time job and started working on a part-time basis for BUPA. During her part-time work at Bupa, the claimant was taking Mobic on a daily basis
[4.21] The fact that the claimant had ceased working as an AIN well prior to the subject accident is evidence that the claimant was no longer physically fit for the work of an AIN and/or was not interested in pursuing further work in this field. This is understandable noting the claimant was aged around 60 years of age at this time.
Part G: After the accident the Claimant had reduced capacity for employment and was incapacitated for employment primarily by reason of her shoulder injury and would be incapacitated long term,
[4.22] NRMA reiterates that the evidence speaks for itself; that being, that the claimant did not have capacity for employment due to a plethora of medical conditions, including neck pathology/foraminal stenosis, neck pain radiating into right arm, ongoing neck dysmetria, bilateral shoulder injury, lumbar spine pain, type II diabetes, anaemia, avulsion fracture and carpel tunnel syndrome, as well as anxiety and depression.
[4.23] NRMA submits that the shoulder injury (pre-existing and degenerative) was but one of the many impairments affecting the claimant’s capacity to engage in employment even prior to the subject accident. It is submitted that a consideration of the claimant’s treating records and the opinions of NRMA’s medical experts demonstrates that the right shoulder was not the claimant’s sole issue and did not incapacitate her long term in any event.
Part H: Prior to the accident the Claimant was looking after her husband full-time. Assuming it had not happened, then by reason of her self-perceived duty to care for her husband, she would have continued to have looked after him, at least for a time rather than have returned to work as an Assistant in nursing in the aged care sector.
[4.24] NRMA agrees that the evidence suggests that the claimant was unlikely to have returned to work as an AIN and would have remained as the carer for her husband. The claimant’s husband, was greatly impaired at and around the time she alleges she intended to return to work in November 2020. NRMA submits it is not probable that the claimant was intending to cease her carer duties at this time in circumstances where her husband was yet to undergo a surgical operation, which previously left him in intensive care.
[4.25] Mr Ratanasirilak injured his lower back in a work accident in 2015 and had an ongoing compensation claim until it was settled in 2024. In the course of his claim, he was examined by Medical Assessor Mark Burns on 4 July 2022 for the purpose of ascertaining the extent of his permanent impairment. Mr Ratanasirilak informed the doctor that his wife was his full-time carer and was currently receiving a carer’s allowance. He described the claimant as doing all of the cooking and cleaning around the house. He confirmed that he could not do any lawnmowing or any of the outdoor activities.
[4.26] Dr Burns confirmed Mr Ratanasirilak was enduring ongoing pain and considered a second neurostimulator insertion procedure in November 2020.
[4.27] NRMA submits that Mr Ratanasirilak was examined for medico legal purposes by Dr Abeydeera on 23 March 2023. At that time, Mr Ratanasirilak alleged significant disability and told the doctor that his wife, the claimant, was his full-time carer
[4.28] Dr Abeydeera’s report also elucidate that Mr Ratanasirilak was awaiting further surgery in April 2023.
[4.29] At the Assessment Conference on 8 July 2024, Mr Ratanasirilak conceded that he had further surgery in late 2023 and only then did his condition begin to improve.
[4.30] At the Assessment Conference, Mr Ratanasirilak advised that his compensation claim settled in 2024 and with this money he paid of the mortgage.
[4.31] Forgoing with the above evidence, NRMA submits that Mr Ratanasirilak’s condition had yet to improve in mid-late 2023, supporting NRMA’s position, that the probability of the Claimant returning to work in November 2020 is not plausible.
[4.32] To the above effect, NRMA refers to the matter of H R Walters Pty Ltd v Atik (NSW CA, Kirby P, Clarke & Handley JJA, 24 April 1999, unreported) wherein it was found that a worker who would probably have decreased the hours of remunerative work because of family responsibilities will have her damages reduced. The case highlights that loss of earning capacity must be productive of economic loss in a case where, if not herself injured the plaintiff would, in the court’s view, have stayed home to care for her injured husband.
[4.33] Furthermore, in the matter of Campbell v Wilson [1970] 1 NSWR 333 at 337 a woman of 44 years of age had never worked, however, her husband was in poor health and she might have had to work in future. The court allowed ‘some not large amount for the destroyed earning capacity which contingently she might have needed to employ’.
Part I: Although the three daughters of the Claimant had a filial duty to help their mother (and father) by contributing to the care of their father, there is no evidence as to whether, when, how or for how long they would have done this.
[4.34] NRMA agrees on the basis that the evidence pertaining to the claimant’s daughters is inadmissible, noting it is hearsay evidence and not firsthand evidence.
[4.35] NRMA submits that the claimant’s daughters were not present on the date of the Assessment Conference, and therefore they failed to give evidence to corroborate the credibility of their statements. The fact that they have not provided assistance to date is arguably the best measure of the likelihood such assistance would be provided in the future. Certainly, the fact that the claimant was paid an allowance to specifically care for their father, can to an extent be seen to obviate any need for them to provide assistance to their father in any event.
Part J: Nevertheless, the claimant and her husband had some financial pressures compared to the time at which the claimant was working full-time and earning a living as an Assistant in nursing. The claimant was motivated, if at all possible, to return to work, full-time and probably in the same capacity, that is, as an Assistant in nursing.
[4.36] NRMA submits that the alleged ‘financial pressures’ of a mortgage were eliminated on completion of Mr Ratanasirilak’s compensation claim in 2024, as he confirmed he utilised the compensation money to pay off the couple’s mortgage. Consequently, NRMA submits that there is no evidence that the claimant was incentivised to resume work in the future on account of ‘financial pressure’ at the date of assessment. Furthermore, the fact that the claimant’s husband’s claim resolved is not of itself evidence that Mr Ratanasirilak’s condition improved and obviated his ongoing care requirements and the claimant’s continued assistance in providing same.
Part K: Therefore, it is likely that but for the accident, the claimant would have returned to work at some stage in the period after the accident (that is again, assuming the accident had not happened).
[4.37] NRMA submits that it is implausible, in light of the above evidence, to accept a finding that “but for” the accident, the Claimant would have returned to work at some stage in the period after the accident particularly as an AIN. The claimant ceased working as an AIN prior to the accident due to recorded physical and workplace difficulties. The claimant has been a carer for her husband for around 4 years. Both the claimant and her husband are currently aged 63 years.
[4.38] In the matter of Mann v Ellbourn (1974) 8 SASR 298 the court held that in quantifying damages for loss of earning capacity the assessment should be made by first determining that there had been a loss of capacity and then having regard to the established facts of the past and the probabilities of the future to determine the damages that flow from the loss of that capacity.
[4.39] NRMA refers to the matter of French v New South Wales [1999] in which no award for loss of future earning capacity was awarded to a 33-year-old man. His Honour found that there were many inconsistencies and other aspects of the plaintiff’s evidence which required careful scrutiny for corroboration of what was claimed. In this matter, it was also found that the plaintiff had pre-existing injuries prior to the subject claim and previous accidents which were considered to have caused further injuries and pain. At [28] his honour concludes that “any lost earning capacity of the plaintiff was of no value because it would not have been exercised”.
Part L: I cannot determine with precision, the date on which, assuming there was no accident, that the claimant would have returned to work, or the precise pay either full-time or part-time.
[4.40] NRMA disputes that I could accept on the balance of probabilities that the Claimant, was likely to re-enter the workforce for a number of reasons:
(1) The claimant’s extensive pre-extensive medical history which was noted to have impaired her work capacity;
(2) the claimant had already ceased working as an AIN prior to the date of the accident;
(3) the claimant had been engaged in the care of her husband and was in receipt of carer’s allowance;
(4) there was no financial incentive for the Claimant to resume work noting the home mortgage had been paid off through settlement of the husband’s claim; and
(5) the claimant is 63 years of age and was unlikely to re-enter the workforce after a 4 to 5 year break so close to retirement age.
[4.41] In the event that I was inclined to accept that the claimant was likely to re-engage with the workforce, NRMA submits that a small buffer only is permissible noting the speculative nature of the claim and to factor in the inconsistences in the claimant’s evidence and to allow for the usual vicissitudes.
[4.42] NRMA suggests that I could not be persuaded by the claimant’s submissions that she would have would resumed part time work from 1 November 2020 and continued to work until 1 September 2023 and then recommenced full time work. It is logical to find that on the balance of probabilities that the claimant was unlikely to cease caring for her husband who had not recovered and underwent surgery in late 2023 with the outcome of his compensation claim in early 2024. NRMA submits that I am not obliged to accept the evidence of the claimant or her husband but must assess the likelihood of the claimant working with reference to all factors which include the claimant’s husband’s ongoing care needs without reference to the claimant’s daughters who up until that time had not provided the claimant or her husband with any care. NRMA rejects that any allowance for past wage loss is appropriate in the circumstances.
[4.43] Similarly, NRMA submits that any allowance for future economic loss does not reflect the claimant’s most likely future circumstances. I must consider that the likelihood of a 62-year-old physically impaired female resuming work as an AIN, a physically demanding role that she had already ceased pre-accident, to be improbable. This is particularly noting statistics on the average age for nurses in Australia is only 42 years of age. The claimant has a remaining 4 years in the workforce up to the legal retirement age and it is submitted that there was no financial incentive for the claimant to resume work on account of the family home now being paid off. In the circumstances the probability of the claimant even resuming part time more sedentary work, is unlikely.
[4.44] NRMA provided a timeline summarising the events to have aspired prior and post-accident.
[4.45] NRMA submits that in light of the above events, the claimant’s pre-existing conditions, Mr Ratanasirilak’s deteriorating condition and subsequent settlement of his workers compensation claim and mortgage repayment, the most probable circumstance “but for” the accident, is that the claimant would have remained off work and in receipt of a carer payment for the foreseeable future. In the circumstances, it is submitted no allowance should be made for past or future economic loss.

NRMA submits [20 December 2023] that the claimant failed to provide Dr Kuo with an accurate record of her prior medical history of shoulder pains dating back to 2005. Further, NRMA relies on the medical records of Rooty Hill Medical Centre, which confirm that the claimant underwent two cortisone injections in both shoulders in 2005.
NRMA also refers [7.14] to the records of Associate Professor Boesel who initially consulted the claimant on 22 January 2022 and diagnosed her with complex multi- site pain disorder, predominantly on the right-hand side, which appeared to be spondylosis- related cervicalgia.
NRMA further submits [7.17] that the claimant failed to provide Associate Professor Boesel with an accurate account of her past medical history of neck, shoulder and back pain, dating back to 2005.
Further, NRMA refers at [8.1] to the medico- legal report of Dr Allen of 6 September 2022, diagnosing the claimant with having transient exacerbation of pre-existing degenerative disease. He opined that the claimant’s conditions were mainly constitutional and degenerative in nature and at the utmost, she may have had a possible transient exacerbation of her pre-existing pathology in her spine and shoulder.
The submission also noted that Dr Allen assessed the claimant’s WPI as 0% if he found there to be no impairment attributable to the accident, due to insufficient objective evidence.
The submission continued [8.1] that Dr Allen had noted that the claimant had long- standing cervical spinal disease, lumbar spine disease and right shoulder disease, for at least 12 years before his report.
Taking into account the description of the accident by the claimant, and by Dr Kuo, see paragraph above, and noting that Dr Woo also considered the accident had a causal connection with the claimant’s shoulder condition, and finally noting what Dr Menogue said relevant to causation:
“In the motor vehicle accident of 14 October 2020, Ms Ratanasirilak sustained injuries to the cervical spine, lumbar spine and right shoulder. Imaging has been performed of these regions in the immediate period following the subject accident. The evidence that has been summarised above has supported a causal relationship between the subject accident and these three regions. In order for causation to be established with these regions of the body, there needs to be some evidence identifying symptoms and/or signs in that post-accident period that would justify a causal relationship to be established. I consider that such information has been made available.”
I find that the accident did make a material contribution to the claimant’s shoulder condition and did cause, as Dr Woo opines, a diminution in capacity for employment as an Assistant- In- Nursing.

Causation

NRMA summarises the medical evidence [4.19] leading to a conclusion that the right shoulder injury was not causally related.
I have at paragraph 170 to 209 above, given reasons as to why I consider that the evidence of the shoulder surgeon, Dr Kuo, and the orthopaedic surgeon, Dr Woo’s, opinion as to the extent of the impact of the shoulder injury on the economic earning capacity of the claimant is to be preferred over that of Dr Allen and over that of Medical Assessor Menogue, to the extent inconsistent.
NRMA submits that there was only hearsay evidence as to the willingness of the daughters to assist with the care of the mother. There is, however, hard evidence that is not hearsay, that two of the daughters, were still living at home and as a matter of commonsense, if they were living at home, there was a filial duty to help their mother (and father) although to what extent, and to what effect, has not been established.

The financial pressures

NRMA submits at [4.36] that the:
“…alleged ‘financial pressures’ of a mortgage were eliminated on completion of Mr Ratanasirilak’s compensation claim in 2024, as he confirmed he utilised the compensation money to pay off the couple’s mortgage. Consequently, the insurer submits that there is no evidence that the Claimant was incentivised to resume work in the future on account of ‘financial pressure’ at the date of assessment. Furthermore, the fact that the Claimant’s husband’s claim resolved is not of itself evidence that Mr Ratanasirilak’s condition improved and obviated his ongoing care requirements and the Claimant’s continued assistance in providing same.”
I accept what the claimant’s said in her statement about her desire to go back to work and there were a number of reasons for this. One was financial pressure, and as a matter of common sense, to the extent that the mortgage payment was involved, that particular payment would have been removed. However, the claimant had good reasons to try to get back to work, one being, not to lose her professional skills as an Assistant in Nursing, and another to relieve the financial pressures which as a matter of common sense, would only have been reduced, not eliminated, by the repayment of the mortgage.

Implausible that at some stage in the period after the accident, the claimant would have returned to work (assuming the accident had not happened)

The claimant submitted in this respect that:
“[3] The claimant invites the Member to find that but for the accident, she would have returned to part-time work from 1 November 2020 and continued to work part-time until 1 September 2023, when she would have recommenced full-time work.
[4] In her statement dated 9 November 2023, the claimant said it was her intention to return to work around November 2020, at [42]. The claimant gave a cogent reason for that, explaining the Christmas period was very busy, at [44]. The claimant had intended to return to work as an Assistant in Nursing, at [46].”
NRMA [4.40] disputes that I can accept on the balance of probabilities that the claimant was likely to re- enter the workforce for a number of reasons:
(a)   Her extensive premorbid medical history
(b)   That she had already ceased working as an Assistant of Nursing prior to the date of the accident
(c)    That she had been engaged in the care of her husband and was in receipt of a carers allowance for there was no financial incentive for the claimant to resume work as she was 63 years of age and unlikely to re- enter the workforce after a four-to-five-year break, so close to the retirement age.
The claimant’s counsel says in respect of these matters:
“The insurer suggests that the Member could not be persuaded by the Claimant’s submissions that she would have would resumed part time work from 1 November 2020 and continued to work until 1 September 2023 and then recommenced full time work.7 It is logical to find that on the balance of probabilities that the Claimant was unlikely to cease caring for her husband who had not recovered and underwent surgery in late 2023 with the outcome of his compensation claim in early 2024. The Insurer submits that the Member is not obliged to accept the evidence of the Claimant or her husband but must assess the likelihood of the Claimant working with reference to all factors which include the Claimant’s husband’s ongoing care needs without reference to the Claimant’s daughters who up until that time had not provided the Claimant or her husband with any care. The insurer rejects that any allowance for past wage loss is appropriate in the circumstances.”
I find that the submissions in this respect are persuasive. The fact is that the claimant did work for a number of years after obtaining her qualifications before ceasing in order to look after her husband.
The further submission is that the claimant had already ceased working as an Assistant in Nursing prior to the date of the accident. This does not, in logic or common sense, lead to the conclusion that the claimant was not likely to re – enter the workforce.
That the claimant had engaged in the care of her husband and was in receipt of a carers’ allowance.
Against this, the claimant’s husband had been improving, did undergo surgery and the claimant, accepting her statement, was highly motivated to re-enter the workforce but for the accident, given all the effort she had invested in obtaining her qualification.
There was no financial incentive for the claimant to resume work, noting the home mortgage had been paid off.
Against this, there were other motivations which moved the claimant, including that she had become a skilled person, had obtained qualifications and would be able to make her life more comfortable by re- entry into the workforce.
The claimant was 62 years old (DOB: 1961).
With respect, the comment about the claimant’s age is, as a matter of commonsense, not relevant in the scheme of things, in the third decade of the 21^st century. Retirement ages have changed, and as a matter of public knowledge, attitudes towards age and work have changed.

Claimant’s statement

It is relevant that the claimant says in her statement (and I accept) that [37] in 2014 she obtained a certificate III in Aged Care and that she renews in Aged Care.
At [38], she stated that from January 2015 to August 2017, she was employed by RDMS Home Care providing personal and domestic care to clients within their homes and further [39] that from August 2017 to February 2020 she was employed by Arcare of Glenhaven as a personal carer for residents within the nursing home, working full time, 5 days a week.
She further states [39] that she left that position as she needed to spend more time at home to look after her husband.
She does however continue [40] that she began working at BUPA Aged Care North Rocks in March 2020 as an Assistant in Nursing on a casual part time basis, working about 25 to 30 hours per week. She stated that this employment suited her well as it allowed her to arrange her schedule around her husband’s appointments.
She continued [41] that she ceased this employment in or around June 2020, advising her employer that she needed to take time off work to care for her husband. She asked them if she could return to the employment at a later stage and she was advised that she would be welcomed to come back when she was ready.
All of the above is consistent with a person who considered themselves in general good health.

Consideration of the claimant’s most likely future circumstances, but for the accident

Section 4.7 of the Motor Accident Injuries Act 2017 (MAI Act) provides that:
“(1) Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
I find that the claimant’s most likely future circumstances in respect of employment, but for the accident, are set out below.
The accident took place on 14 October 2020.
The claimant quit work, in or about July 2020 to care for her husband and had remained out of work until the date of the accident.
The claimant [as noted in her Statement at page 5] had completed two TAFE courses in 2002, 2013 and had a track record in working in Aged Care. As appears at [111] above, she had obtained a Certificate III in Aged Care and had stated working as an Assistant in Nursing in January 2015 and for more than 5 years had worked in such a capacity.
The claimant was strongly motivated to work, and her family was under some financial pressure.
The claimant was injured in this accident and the injury resulted in the diminution in her income earning capacity.
The claimant was caring for her husband before the accident, and most likely would have continued to do so after the accident.
Adopting the submission by the claimant’s counsel, but for the accident and despite caring for her husband, she would have returned to work at a relatively early stage, for a number of reasons, one of them being that she had gone to a lot of trouble to obtain the qualification Assistant in Nursing, and as a matter of commonsense, would not have readily relinquished the practical skills and experience acquired over a number of years by failing to return to that work at some stage. The main reason, however, why she would have returned to work was because of the financial pressure she was under if she was not working.
The claimant’s counsel submits that [147]:
“While the claimant's husband continued to be troubled by his own injuries and seek treatment, that had been the case before the claimant ceased work. The claimant and her husband had managed then and it is reasonable to suppose that they could have managed the situation from November 2020. That they had the assistance of their daughters favours such a conclusion.”
One asks what has changed. The claimant took a period of time off to look after her husband prior to the accident. The claimant and her husband still had the assistance of their three daughters at that time, and I cannot see why, the fact that they still have the three daughters favours a finding that the daughters would have made taken a more active from November 2020.
One asks what is special about November 2020 and one answers, nothing.
I find that it is likely, however, that the economic strictures and pressures would have been likely to have impacted on the claimant and her husband at some stage, as to make it likely that the claimant would return to work, at least in a part time capacity.
I accept the submission by the claimant’s counsel that the proposition that the claimant would never have returned to work should be rejected as not being supported by the evidence. I assume that she would have returned to work. The difficulty, however, is that there is insufficient evidence to determine precisely when, though the financial pressures and the availability at least of some help from the daughters, does as a matter of common sense allow the conclusion that the time of the return to work, would have been sooner, rather than later.
I accept the submission of the claimant’s counsel at [7] of 10 September 2024. I also accept submissions [8] and [9] and I note and accept the submission at [10].
I note the claimant’s counsel submission at [12]. It is perhaps unfortunate that direct evidence was not taken from the claimant’s daughters, but it is significant that two of them were living at home, and therefore, as a matter of common sense, at least some assistance, would have been provided if for no other reason than as a result of normal familial affection.
In concluding on the most likely future circumstances, I accept with some modification, the claimant’s counsels’ submission at [13]:
(a)    The claimant would have continued to provide some assistance to her husband until his surgery in 2023;
(b)    The claimant’s daughters would have also been available to provide some assistance to their father over that period, noting they lived in the same house;
(c)    While the claimant’s husband still needed some help around the home after November 2020, his level of functioning was improving, and
(d)    The claimant would have returned to some employment, probably as an Assistant in Nursing, or other job in aged care, at some stage after the accident and (my modification) sooner rather than later.
There is nothing in the evidence that allows me to determine precisely when that would have taken place and how many hours the claimant would have worked. Commonsense allows me to conclude that she would have worked enough hours to relieve the financial pressures from which she and the family were under.
The evidence does not allow me to determine when the claimant would have returned to work, and it is a definite element of imprecision, the result of which, I cannot determine precise figures for either past or future economic loss, but the evidence is sufficient to allow me to determine that there was a measure of loss in the past, as well as in the future.
In IAG Ltd t/as NRMA Insurance v Damian Mares[2016] NSWSC 1792, Hall J said this with respect to the correct assessment of future economic loss:
“(a) s 126 does not prevent the award of a cushion or buffer for future economic loss [para 68];
(b) the following formulation, which was approved by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61, applies [para 69]:
(1) Assess the “most likely” of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);
(2) Assess the claimant’s economic prospects as a consequence of the accident;
(3) Compensate the claimant for the difference between (1) and (2), including, where appropriate, through the use of a buffer;
(4) Adjust (3) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (1) even had the accident not occurred;
(5) Include a statement of the assumptions made as the claimant’s most likely future circumstances and the appropriate percentage adjustment as to the above formulation see also Leslie & Britts, Motor Vehicle Law New South Wales, at [MAC.126.40].”
In Dal v Chol [2018] NSWCA 219, White JA said [at 24]:
“... Indeed, an award for future economic loss based on an assessment of the difference between the respondent’s likely earnings as a qualified motor mechanic and his actual earnings at the time of trial ($217 per week) applied to his likely working life, discounted for vicissitudes and applying the five per cent discount rate to calculate the net present value of the loss over that period, would have been unexceptionable.”
In Allianz Australia Insurance Ltd v Kerr [2012] 83 NSWCA 13 Basten JA stated at [24]:
“The claimant's submissions focused on the language of s 126, but identification of the specific non-conformity relied upon would have illustrated the insufficiency of that approach. Section 126 does not purport to codify legal principles relevant to assessment of loss of earning capacity. It does not identify factors to be taken into account in making an assessment. Nor does it appear to depart from or vary the general law principle that the compensable loss is not a loss of income but the loss of capacity to earn income which "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; 106 CLR 340 at 347; State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71] (Heydon JA); State of New South Wales (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [86] (Beazley JA; Allsop P and Macfarlan JA agreeing). Income earned prior to the accident may well be the best evidential basis to assess the earning capacity of the claimant, but for the injury, subject to adjustment for the passage of time since that income was last earned. Income earned between the accident and the trial may be (but often is not) a good indicator of current capacity. The latter may be capable of extrapolation into the future, but it will usually be necessary to consider whether, and to what extent, both pre-accident capacity and post-accident capacity might have been and might be expected to vary in the future.”
His Honour continued at [26]:
“In Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638, three members of the Court (Deane, Gaudron and McHugh JJ) referred to the exercise in respect of hypothetical events, stating that "the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability": at 643. It has been submitted (though not determined) that s 126 replicates that approach: State of New South Wales (NSW Police) at [88]. If so, it appears to disregard the remarks of Brennan and Dawson JJ at 640:
"Although we agree with the general thrust of the reasoning on this point in the judgment of Deane, Gaudron and McHugh JJ, we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation."

His Honour then summarised the comprehensive review of the principles to be found in this area quoting from Heydon JA in Moss.
His Honour also reproduced the assumptions about future earning capacity at [31] and other events as noted in Nominal Defendant v Livaja [2011] NSWCA 121 at [41]:
“The assumptions or events upon which a baseline may commonly be calculated include:
(a) identification of the skills, training and experience of the plaintiff, as at the date of the accident;
(b) the work he or she was undertaking immediately prior to the accident;
(c) the likelihood that he or she would have continued in such employment, but for the accident;
(d) the possibility that he or she might have obtained promotion or other benefits, but for the accident;
(e) the age to which he or she was likely to have worked in that employment, and
(f) the possibility that the employment would not have been continuous."

Determination

I assess damages for economic loss that is diminution in income earning capacity resulting in economic loss, in the amount of $75,000.00 for the past, including loss of superannuation.
I assess damages for the future at $100,000.00, after having arrived at a deduction of 15% for vicissitudes, and also taking into account superannuation.
The claimant’s counsel argues that a 10% reduction in vicissitudes is warranted, given the short duration of the loss. There are, however, other vicissitudes which affect elderly people more so than younger, and in this case, the vicissitudes include not only the health of the claimant and her capacity to continue to work as an Assistant in Nursing, but also uncertainties as to the health of the claimant’s husbands and the circumstances that his health may require further time.
Accordingly, the buffer which I determine for both the past and the future is $175,000.00.
I have taken into account s 7.36 (1)(b) of the MAI Act which requires me to assess the damages that a court would likely award in these circumstances.

Regulated costs

I assess the costs as follows.

Costs claimed

Stage 1 as claimed: 2.92 units at $119.96 = $350.00

Stage 2 as claimed: 4.32 units at $119.96 = $518.00

Stage 3 as claimed at 114.48 monetary units (mu) plus 2 cents= $15, 233.00

(1 monetary unit = $199.96)

Stage 4 as claimed at 2 cents per dollar = $3, 500.00

Assessment Conference: 30 units at $119.96 = $3, 599.00

Additional conference time: 2 hours claimed at $338.00 = $676.00

Conference: 2 hours claimed at $338.00 = $676.00

Applications

Original Medical Assessment (WPI): 16 units claimed = $1,919.00

Review of Medical Assessment: 16 units claimed (dismissed by PIC) = $0.00

Disbursements

Report of Dr Woo (medico- legal report): $1,650.00 claimed = $1,650.00

Clinical notes of Dr Kuo: $66.00 claimed = $66.00

The amount of the claimant’s costs, taking into the account the amount of damages assessed in respect of this claim, assessed under the MAI Act is $31, 005.70

Total

Under sub-sections 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim was $175,000.00.

[2024] NSWPIC 545

2 October 2024