Rodic v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Rodic v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 273
Claimant:	Vesna Rodic
insurer:	Insurance Australia Limited t/as NRMA Insurance
Member:	Terence O'Riain
DATE OF DECISION:	13 June 2023
CATCHWORDS:	MOTOR ACCIDENTS - MotorAccident Injuries Act 2017; assessment of claim for damages; section 7.36(1); the claimant, a 43-year-old woman, was injured in a rear-end collision; two impacts; claimant sustained injuries; jolted and jarred forwards and then backward again; claim for injuries to neck, shoulders and back affecting legs and arms (pain and tingling); claimant working two jobs; Held – insured the owner and/or driver of the motor vehicle at fault in this claim for liability to pay to the claimant any damages and statutory compensation; the insurer has admitted liability and breach of its insured driver’s breach of duty of care; sub-sections 7.36(3) and 7.36(4); the amount of damages for this claim is $640,077; order for costs.
determinations made:	DETERMINATION Issued under s 7.36(1) of the Motor Accident Injuries Act2017 1. The insurer admits it owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury loss and damage because of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017 (the MAI Act), I assess the amount of damages for this claim as $640,077. 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed under the MAI Act is $58,807.

REASONS

introduction

On 7 February 2023, I assessed Ms Vesna Rodic’s (the claimant) damages arising from the accident dated 5 March 2018. I assessed Ms Rodic’s claim at the Personal Injury Commission’s (Commission) hearing room in Sydney. David Carter instructed Frank Curran of counsel for the claimant, while Kent Owen (attending via Teams) instructed Brendan Jones of counsel for the insurer.
The insurer insured the owner and/or driver of the motor vehicle at fault in this claim for liability to pay to the claimant any damages and statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
The insurer has admitted liability and breach of its insured driver’s breach of duty of care.

Jurisdiction

The Commission referred Ms Rodic’s application to assess damages to me to assess under Division 7.6 of the MAI Act.
The rules of evidence do not apply to this assessment. I may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.

Background

On 5 March 2018 Ms Rodic, who was then 43 years old, was driving her Jeep vehicle on Camden Valley Way. She was wearing a seat belt. There was congestion in the road ahead and she had slowed down to almost stopping completely. She felt a strong hit from behind.
She says she was jolted forwards and backward. Her seatbelt was tight across her body and upper legs. There was a second impact from behind and she was jolted and jarred forwards and then backward again.
She felt shocked and unable to move from behind the steering wheel. She says she sat still in her seat for about 15 minutes, with people coming to the door, shouting, and trying to communicate with her. A road worker assisted her out of her car to sit and lie down just off the road. She says she was in shock and noticed the onset of pain. Her partner was contacted and he came to the scene. An ambulance arrived and medics provided first aid at the scene, assessed her state and helped her with her breathing.
The ambulance staff offered to take her to the hospital, but she chose to go home with her husband for rest and care.
She was working two jobs at the time of the accident: one with ORS Group Employment Services (ORS) and another as a self-employed cleaner. The insurer concedes Ms Rodic would have most likely remained in those roles.
Ms Rodic applied for personal injury benefits dated 4 April 2018, which listed "injury to neck, shoulders and back affecting my legs and arms (pain and tingling)".
Ms Rodic's general practitioner (GP) Dr Tomka noted those injuries in his clinical notes.
The insurer denied liability of further statutory benefits after 26 weeks because it assessed Ms Rodic's injuries as minor[1] under the MAI Act. Ms Rodic disputed that outcome and referred her physical and psychological conditions to the Commission to resolve.
[1] Now termed “threshold” since 1 April 2023
Notably, Medical Assessor Alan Home examined Ms Rodic and produced a certificate dated 9 March 2022. He assessed the following injuries:
(a)   cervical spine;
(b)   right shoulder;
(c)   left shoulder, and
(d)   lumbar spine.
Medical Assessor Home assessed all those injuries as soft tissue damage, with temporary aggravation of underlying degenerative changes for the cervical and lumbar spine. The soft tissue injuries were the only physical injuries he attributed to the accident.
Medical Assessor Sidorov’s psychological assessment dated 8 August 2022 found
Ms Rodic’s injuries were non-minor and satisfied the threshold for non-economic loss.
Ms Rodic was receiving income protection payments up to April 2023.
Ms Rodic has not undergone surgery and is not receiving ongoing medical treatment other than medication for her physical injuries.
Ms Rodic claims she is unable to return to her previous employment. The insurer disputes that Ms Rodic has lost her earning capacity to the extent she claims.
The medical evidence mostly supports Ms Rodic’s claim she is unfit for work and will remain so. Some of the expert evidence says it is due to the accident causing her physical and psychological injuries, others say it is because she has a maladaptive attachment to her perception of her condition.
Ms Rodic was in permanent part-time employment as an employment consultant with ORS Group Employment Services and had been in that position since 20 July 2009. At the time of the subject accident, Ms Rodic was working for ORS six days per fortnight, being 45.6 hours per fortnight for a yearly salary of $26,200 plus superannuation.
ORS Group Employment Services provided evidence about her earnings and employment. She also provided balance sheets for her cleaning business, which establish her earnings.
Since the subject accident Ms Rodic has not returned to work. Past economic loss is claimed at the rate of $485 net per week in 2018 and thereafter at an increase in probable earnings of 2.5% per annum to date in line with CPI and productivity increases. The insurer has also provided an estimate and notes correctly that the discount rate to be applied already deals with inflation, tax, and salary changes.[2]
[2] Todorovic v Waller (1981) 150 CLR 402.
Past loss of superannuation is also claimed at the statutory rate.
Because Ms Rodic was unable to work, she claimed her total and permanent disability insurance benefit that is normally associated with superannuation policies. That insurer has provided reports from Dr Shahzad (occupational physician)[3] and Dr Synott (psychiatrist).[4] Those reports are useful for assessing Ms Rodic’s level of impairment and her perception of her condition. These doctors were not, however, instructed to find the nexus between the accident and her loss of earning capacity.
[3] Dr Shahzad 28 May 2019 and 28 August 2020.
[4] Dr Synnott 27 May 2019 and 28 August 2020.

Issues to be decided

The insurer has conceded Ms Rodic’s entitlement to non-economic loss and entitlement to the other heads of damage claimed, namely past and future loss of earnings and earning capacity under s 4.5(1)(a) of the MAI Act, and damages under
s 4.5(1)(d).
The issues to be decided in this case are the non–economic loss damages with quantum for past loss and ongoing impairment to her earning capacity under Division 4.2 of the MAI Act, which is agreed will be productive of economic loss.
There is disagreement about whether the accident caused any coccyx injury condition or carpal tunnel syndrome.
There is also disagreement about whether any physical changes from the accident have ceased to be operative in terms of Ms Rodic’s non-economic loss and her work capacity. The claimant says she is in constant pain and it is due to the accident, while the insurer points to evidence that any physical effects were temporary and ceased at least two years ago, and her condition is entirely subjective.[5]
[5] A/Prof Shatwell’s report dated 21 June 2021.
The preponderance of medical opinion on the psychological injuries is that the circumstances of the subject accident caused Ms Rodic to suffer post-traumatic stress disorder and the secondary impact from her physical injuries resulted in a major depressive disorder. Dr Vickery[6], however, suggests Ms Rodic’s psychological condition is a somatic symptom disorder, where the sufferer experiences symptoms out of proportion to her diagnosed condition.
[6] 9 Augusts 2021
To assess the economic loss, I must consider:
(a)   whether Ms Rodic can prove she would have grown her cleaning business and the income it generated;
(b)   whether she has permanently lost her earning capacity;
(c)   the extent of Ms Rodic’s residual earning capacity, i.e., whether the insurer has satisfied me that Ms Rodic has residual earning capacity to offset her loss of capacity;
(d)   whether the appropriate rate for contingencies is 15%–as it can be increased to take into account factors in favour of Ms Rodic returning to work, as well as the contribution her carpal tunnel syndrome and coccyx injury condition makes to her work capacity if the motor accident did not cause it;[7]
(e)   whether Ms Rodic would retire from work at 72 years old, and
(f)    whether I can calculate Ms Rodic’s loss at a weekly rate or whether a compensatory buffer would be appropriate.

Vesna Rodic’s statement dated 12 October 2022

[7] Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis [7.4.3].

Pre-accident history

Ms Rodic was born in Serbia and will turn 48 this year. She grew up in Serbia attending primary school for eight years and then had secondary schooling for four years, with two years of tertiary education in management. She managed a shop for five years before her first marriage in 2002, when she emigrated to Australia. She is now an Australian citizen.
Her daughter Nikolia was born in 2003 and attends university.
She divorced in 2009 and in 2010 commenced a long-term relationship with Bojan Bozic. They have two sons 9 and 8 years old. All her children live with her.
She commenced part-time employment as an Employment Consultant in 2009 with ORS until 5 March 2018. She enjoyed the work very much. It was government-funded in association with Centrelink and aimed to place disabled persons into employment.
She worked in an office and would regularly travel to assess and interview candidates.
In November 2016 she became a self-employed, part-time cleaner in domestic and commercial premises. She says she also enjoyed this work.
Before the accident Ms Rodic says she had a happy family life, looking after the three children and partner, and deriving good earnings at work. She says her emotional and physical health was good.
She had never suffered any major traumatic episode or serious injury. She was in a motor accident in November 2017, however, as a front seat passenger in her car when another car struck it from behind.
After the earlier accident she had some neck, back and shoulder pain and attended to her family doctor, Dr K Tomka general practitioner (GP) on, she thinks, one occasion only. The GP prescribed some pain medication which Ms Rodic took for about 4-5 days after which she felt that she had recovered from the effects of that accident.
She cannot recall having any X-rays or similar investigations. Her GP may have referred her for physiotherapy but she did not have that treatment. She may have missed a few days at work but was able to resume her work and non-work activities shortly after this accident.
She remembers going on a holiday shortly after this accident and having no symptoms, restrictions, or limitations while on her holiday. She did not claim for this earlier accident. There is no contradicting evidence to those assertions in clinical records.
She did not give evidence she had any concrete plans to return to full-time work in the future or any evidence about plans to grow her business.

Post-accident history

After getting home from the 2018 subject accident, Ms Rodic felt unable to care for herself. She states she was in deep shock and trying to come to terms with what had happened.
She felt severe back and neck pain, which was worse the next day. She had pain in both shoulders. She says she dwelled on what had happened and felt that she “had nearly been killed.”
She was emotional and crying. She could not do the usual things for herself and the family. The day after the accident she saw her GP Dr Tomka. She told him about her pain and emotional distress and he prescribed medication which she says she took.
She did not attend work due to her pain and distress to attend work.
Dr Tomka sent her to Dr Medhat Guirgis, orthopaedic surgeon, whom she saw in April 2018 and on further occasions subsequently. Mr Colovic, a physiotherapist at Holistic Physiotherapy, treated her intensively but after six months this did not offer any benefit and it was discontinued. Hydrotherapy, swimming, and water exercise were of some benefit.
After the accident she says she felt severe neck, back, tailbone, and shoulder pain all the time that would vary depending on what she did in her home and generally. She became inactive.
She could not resume work and missed not working and earning an income. She felt emotionally unwell and fell into a depressed state over what had happened. There were days when she says could not do anything except just lie down and rest.
Her doctor referred her to psychological counselling treatment, which began in May 2018 with Zoran Protulipac, psychologist. She underwent extensive counselling with

Mr Protulipac and followed his advice as best she could to overcome the emotional problems arising from the car accident.
Although she felt this treatment helped her cope, the insurer terminated the treatment funding and she says she did not have funds to pay.
Despite the treatment and the medication from 2018 into 2019, Ms Rodic says the quality of her relationships with her partner and children declined. She had bad moods and could not get any proper sleep or rest. She was in pain all the time. She felt ashamed and frustrated to be letting down the family because she could not do the usual activities, as well as not earning a living.
Her feeling of being nervous and upset increased and she felt helpless and hopeless. She was reliving the accident and started to have nightmares about it. She felt reluctant to go into vehicles to attend medical appointments and such. She says she was a “nervous wreck” when the car was being driven. She avoided being in a vehicle.
Her intimate relationship with her partner ceased and they began to use separate bedrooms.
She says she was unable to resume her previous level of housekeeping and domestic duties.
She gave up all sports, recreations, and game activities she had previously undertaken. She has not returned to work since.
She first sought legal advice in May 2018 and the legal processes thereafter have added to her anxiety and stress levels. She attended medical examinations and answered questions about the accident and what was happening. She found this distressing. These examinations were related to claims for total and permanent disability benefits, and income protection benefits. She was ruled eligible for these entitlements and has used these funds for the family.
In more recent years she has attended medical consultations and medical examinations to do with treatment and with the assessment of her motor accident claim. She says she felt the questioning and reliving of the accident during these examinations distressed her.
In her statement and during oral evidence Ms Rodic confirmed having problems every day since the accident attempting to do normal tasks. She says she still has pain in the body parts she complained of above as well as her legs. She had trouble standing, walking, and using steps and stairs. She had restrictions in the use and movement of her arms and shoulders. Her neck problems came from holding and turning her head. Her back developed stiffness. She had sensations in the arms down to her hands mainly affecting the right arm and hand which worried her. She is right-handed.
In early 2019 Dr Simon McKechnie, a neurosurgeon from Liverpool examined her. She saw him twice more as he prescribed medication which she took. The medicine did not appear to provide much improvement. She wore wrist splints at night while trying to sleep but this did not seem to assist her.
Dr McKechnie advised in late 2019 she could consider surgery to relieve her carpal tunnel syndrome in her right wrist.

Dr McKechnie repeated that advice in August 2020 because she was still having the same problems.
By March 2020 when the COVID-19 crisis commenced, she says she was still in a bad physical and emotional state. She declined during this time. Nikolia and the boys’ constant presence in the home placed her under pressure. She had insomnia, worry about her situation, disappointment, and despair about what had happened and about her future.
She says she suffers from headaches which she never had before. Her weakness and tingling in her legs, arms, and hands was disconcerting. She says she had many falls and she says she walks where there is something to hold on to.
She has lost dexterity and nimbleness in her hands and the numbness and tingling causes her to drop things. She has trouble with toilet activity because of this and brushing her teeth. It is difficult for her to sit, stand, walk, or lay down for too long. She changes position often and moves to relieve pain and severe discomfort.
When she can sleep she has horrible nightmares. Her sleep is fitful and restless. She says she feels exhausted and unrefreshed for having gone to bed.
She says she lost her enjoyment of life and has no motivation.
She says she is distressed she cannot mother her children as she used to do.
One of her children has no memory of how she was before the accident. Her children have said things to show they are anxious about her.
Her partner reduced his work from five days to three days to be available to help and fill the role of home-keeping and child care she used to do. Before the accident, they shared that work effectively.
Ms Rodic still sees Dr Tomka (GP) regularly for prescriptions. She is depressed about gaining weight since the accident. Her clothes do not fit her comfortably now. She thinks she has aged due to the accident.

Claimant’s oral evidence

This was supplementary evidence about Ms Rodic’s current state. She says she is just as disabled as she has ever been since the accident.
During her oral evidence, Ms Rodic frequently used visual metaphors about not being able to see “myself” regaining her capacity to work or return to her previous life.
Although the Commission provided an interpreter in her language at her request, and she brought an additional interpreter to the Commission to sit in on the proceedings, I noticed she was highly intelligent woman who was a sophisticated English speaker, with strong comprehension skills, who did not resort to either interpreter throughout the assessment.

The insurer questioning Ms Rodic

Mr Jones, for the insurer, questioned Ms Rodic about the mechanism of the accident, and her current treatment, including hydrotherapy, which she does daily in her home swimming pool. She conceded she is building up to do more as she finds this exercise helpful.
About the accident, she described how she was stationary when the insured car ran into the back of her car and another car hit the insured car.

She described how she was;
“in pain….feeling squashed….wasn’t sure what was hurt, and then pain…. can’t talk, everything was very loud around. I don’t like to remember that all that plastic breaking, and then there’s people screaming around, and then the ambulance coming, and the fire brigade, and then…”
She said she called the police while she was still in her car, and that when they came to the accident she told them the truth about what was happening to her and how she felt. Ms Rodic agreed with the insurer’s proposition that she has told people she was in agony.
Ms Rodic was then asked if she told the police at the scene there was nothing wrong with her. This is what the attending police recorded in the police report.
Ms Rodic eventually answered that she said that to the emergency call operator. She said the police who attended in person only gave her an event number and did not ask her anything else.
The insurer also put to Ms Rodic that the doctor who drew the medical certificate that accompanied the application for personal injury benefits wrote that Ms Rodic was in shock, could not talk, and felt trapped. The doctor also wrote she was wearing a seatbelt and airbags were deployed. This was raised when Ms Rodic repeated in her oral evidence the airbags did not deploy.
Another doctor who treated Ms Rodic recorded her car was written off when that was not the case. The vehicle was repaired. The insurer asked her if she was embellishing how severe the collision was to enhance her claim, which she denied.
Ms Rodic agreed she saw Dr Tomka, her GP, the day after the accident, complaining of neck pain; headaches; upper and lower back pain, and pain in both shoulders with hand weakness. She also complained of vomiting through stress.
The physiotherapist she saw soon after the accident only treated her neck, shoulders, and her upper and lower back.
Ms Rodic agreed with the proposition that she understood her complaints in her statement about her “loss of dexterity and nimble hands,” was about how she moved her fingers and their sensitivity. Ms Rodic’s statement says this issue did not develop until 2019.
Ms Rodic has visited Serbia since the accident in 2019 and September 2022.
She has also built a new home during this time, which is a 4-bedroom house where she lives with her partner and 3 children. Each child has a bedroom. She says that she lives in the downstairs living room because she walks around a lot during the night due to the pain.
The insurer also pointed out that she had instructed Bryden's Lawyers to represent her in her total and permanent disability insurance claim, which led to a $1 million payout in either late 2021 or early 2022. She had also taken out additional income protection insurance and was receiving regular payments of $3,300 from the two policies. One income policy ended in September 2022, while she was paid out up to April 2023 for the second policy.
She agreed she had enough money so that her partner could afford to work only three days a week to help as well as build a new home.
The insurer questioned her about how often she worked in her cleaning business before the accident. She agreed that it could vary according to the availability of work. Some of her payments were in cash, which she says she told her accountant about. One of her regular clients was a building company, which provided regular work doing clean-ups after building and renovations. Another client was a restaurant, which is now closed. She networked through the Serbian community to find those clients.
She expected to be able to get more work if she continued in that role as other opportunities would come up.
Dr Tomka sees her regularly and he asks her if anything has changed regarding her capacity to work. She maintains that nothing has changed and she does not feel up to working. He fills in the medical certificate accordingly.
The insurer asked Ms Rodic about her work at the employment agency ORS, where she had worked since 2009. She agreed she was experienced in the role and liked it. Although she got on with the people there she has not been in contact with them since the accident.
As part of her work at ORS sometimes she had to create a job candidate’s CV from scratch, which required her to type. She says she cannot type anymore because she wears splints on her hand due to carpal tunnel syndrome. She says she cannot use a pen or pencil. She has difficulty completing forms, so it would be difficult to do the office-based duties that she used to do before the accident.

Medical evidence

Medical Assessor Sidorov assessed Ms Rodic for the Commission, to assess her entitlement to non-economic loss. He diagnosed that the accident caused post-traumatic stress disorder and major depressive disorder with anxious distress.
He summarised her condition in the psychiatric impairment rating as follows:
(a)   he found she was mildly impaired in self-care and personal hygiene. She is less motivated to do household tasks and leaves them to her partner and daughter. She is generally hygienic but occasionally requires prompting from her partner to look after herself;
(b)   Ms Rodic withdraws from social and recreation activities and sees less of her friends. She is demotivated and does not enjoy social events. She will attend family events and special occasions when her partner and children accompany her;
(c)   Ms Rodic has mild impairment in travel. She will leave home independently and drive in her local area, but she remains anxious and sometimes needs to take breaks;
(d)   her relationship with her partner is strained due to her unstable mood and irritability, and
(e)   she experiences moderate impairment in her concentration, persistence, and pace. She can get lost when she is driving. She is forgetful and needs prompting to take medication and keep appointments.
The Medical Assessor found Ms Rodic was impaired in terms of adaptation because of her trauma and depressive-related symptoms. He opined it was unlikely Ms Rodic could obtain and maintain employment or study.
This largely agreed with Ms Rodic’s treating psychiatrist, Dr Kuljic’s, findings in his report dated 22 May 2020, who noted that there was no significant improvement in her psychiatric condition despite his treatment and 30 cognitive behaviour therapy (CBT) sessions with her psychologist, Dr Protulipac.
Dr Kuljic did not expect there would be significant improvement regarding the symptoms or level of functional impairment with any further reasonable treatment. He still recommended ongoing treatment to prevent worsening any comorbidities.
Dr Synott’s psychiatric reports for the TPD insurer dated 27 May 2019 and 25 August 2020 support the nexus between the claimant's psychological condition and the accident and commented (on page 157 of the bundle marked A.D. 14): "She describes an inordinate degree of impairment – which she attributes entirely to the subject MVA. In my opinion, she has regressed into a pattern of invalidity and abrogated responsibility for the trajectory of her life; she describes an "external locus of control"; this pattern is entrenched. Given her negative mindset and maladaptive behaviour, this is likely to be a self-perpetuating pattern.
Dr Synnott accepts Ms Rodic is unlikely to return to work in the future because this current pattern is entrenched and unlikely to change – irrespective of any medical intervention. Dr Synnott opined Ms Rodic's condition is not factitious
Dr Medhat Guirgis, her treating orthopaedic surgeon provided seven letters to Ms Rodic's GP, between 11 April 2018 and 26 March 2019, and a final medicolegal report dated 12 February 2020.
Dr Guirgis supports the nexus between the subject accident and Ms Rodic's neck, shoulders, arms, back, coccyx, and hip injuries.
Her ongoing complaints were of her right arm pain more than left C6/7 arm radiation, tingling, pins and needles, and a numb feeling affecting her right and left hands with fingers with weakness in the hands’ gripping power. She reported neck tension associated with occipital headaches. There was lower back pain and stiffness on some days more than others, with acute right and or left lumbar sciatic episodes. She had a constant sense of weakness in both legs. She had excruciating coccyx pain when sitting for long periods. There was persistent trochanteric pain in both hips.
Dr Guirgis’s analysis of the accident is that it caused a musculoligamentous sprain or strain implicating C6 – 7 mechanical derangement of her cervical and thoracic spine. He describes the MRI of her cervical spine as evidence of disc protrusion indenting into the ventral surface of the thecal sac at that level.
Dr Simon McKechnie’s medical report dated 14 June 2021 is a summary - addressed to Ms Rodic's motor accident lawyers– of Ms Rodic’s treatment history, which he provided.
He saw Ms Rodic on 5 February 2019 complaining of neck pain radiating across both shoulders, and thoracic, and lower back pain with intermittent leg symptoms. An MRI of the whole spine from 27 March 2018 demonstrated a minor C6/7 disc protrusion. The thoracic MRI was unremarkable. There was mild disc desiccation at L4/5 and L5/S1 with a small L5/S1 annular tear and a small bulge. There was no thecal sac or nerve root impingement.
Dr McKechnie saw her again on 12 March 2019. There were no clinical changes. An MRI of her pelvis demonstrated mild tendinitis and trochanteric bursitis with some bilateral sacroiliitis.
He recommended non-operative treatment including medication, avoiding heavy work and lifting, plus exercises.
He reviewed her again on 30 April 2019. There were complaints about pain and intermittent sensory disturbance in the arms and hands, which was worse on the left side. Nerve conduction studies confirmed she was suffering from bilateral carpal tunnel syndrome.
Dr McKechnie saw her again on 24 December 2019 and 3 August 2020. He offered a right open carpal release, which Ms Rodic has declined. There were also complaints about lower back pain, hips and groin.
Dr McKechnie opined Ms Rodic was unfit to return to employment which involved any repetitive bending, repetitive right arm, and hand movements, repetitive pushing, pulling, or lifting over 5 kg.
Dr McKechnie's opinion notes that her symptoms started after this subject accident, and an investigation after the accident confirmed several small disc protrusions.
He did not support a connection to those spinal changes to any symptoms from the subject accident or the mild sacroiliitis. He did not support a direct nexus with the carpal tunnel syndrome.
He expressly mentions his support for total and permanent (TPD) benefits but does not mention what conditions within his specialty are connected to the subject accident.
Associate Professor Shatwell for the insurer and Dr McKechnie opine that the scans show unremarkable and minimal change.
Dr McKechnie notes her pain complaints and does not dispute Ms Rodic connects them with the accident.
The only conditions supported by scans are carpal tunnel syndrome and sacroiliitis, which he does not attribute to the accident.
Associate Professor Shatwell’s report dated 22 June 2021 does not comment on the carpal tunnel syndrome and sacroiliitis, but he points out that the scans do not support the chronic pain condition–which Ms Rodic said during the Commission’s assessment is getting worse or is still the same as it was when she was in the accident.
The insurer submitted that the radiology did not reveal any pathology which objectively explained the alleged physical injuries.
The radiology report was summarised as follows:
“I reviewed MRI scans of the cervical, thoracic and lumbar spine performed on 27 March 2018 three weeks after the accident. These are within normal limits for a lady of this age and build. There is some disc degeneration at L4/5 and L5/S 1 in the lumbar region. There was no sign of any acute bony or soft tissue injury.
I reviewed ultrasound scans of both shoulders performed on 17 April 2018. The rotator cuffs are intact. There is mild thickening in the subacromial bursae on both sides.
I reviewed x-rays of the sacrococcygeal region performed on 23 August 2018. These show normal appearances with minor degenerative change in the L4/5 and L5/S1 discs. There is minor postural change evident after sitting for a period of four minutes according to the time markings on the x-rays.
I reviewed an MRI scan of the lumbosacral spine performed on 3 February 2019. This is within normal limits.
I reviewed an MRI scan of both hips performed on 4 February 2019. There was no significant change in the hip joints. The Radiologist considered there was some gluteus minimus and gluteus medius tendonosis, however, I consider the changes are within normal limits. I reviewed MRI scans of the cervical spine and lumbosacral spine performed on 5 March 2019. There was loss of signal in the L4/5 and L5/S1 discs without any major disc protrusion at these levels. There was no evidence of nerve root impingement.”
Dr Shahzad, who is an occupational physician, provided a report for the TPD insurer dated 28 May 2019, noting Ms Rodic's incapacity is not congruent with her physical incapacity.
He describes the "significant imaging undertaken of her spine" to identify minimal disc disease, which is considered to be an incidental finding. He also says "It (is) hard to correlate the diagnosis of upper and lower limb radiculopathy only on the basis of clinical imaging, although ongoing mechanical back pain cannot be denied." He also notes her shoulder scans do not show changes that correlate with the restriction she complains of and demonstrates in her range of movement.
Dr Shahzad opined from a physical health perspective Ms Rodic should have been able to return to her employment consultant role with a graduated return-to-work program, but her overall mental and physical health would prevent her from returning to work. He thought the most prominent presentation was her post-traumatic stress disorder and major depression. He did not think her reported level of incapacity was congruent with her physical incapacity. He did not attribute Ms Rodic's physical incapacity to the motor vehicle accident, although he confirmed her not being fit for work.
Dr Shahzad provided a further report dated 20 August 2020. Ms Rodic renewed her complaints of low back pain with associated front and back hip pain with a pain intensity of 8/10. She described burning pins and needles and numbness in her legs, feet and shoulders. These were the same complaints she made in May 2019.
Dr Shahzad considered her main issues related to her "poor coping strategies, her perceived inconsistency and ambiguity in the information about the injury and its implications the unsupported management style of her medical management".
Dr Shahzad confirmed that she remained unfit to work, but that her treatment had been sub-optimal as it should have included consultations with a pain physician working with her psychiatrist and assistance with return-to-work.

Documents considered

I have considered the documents provided in the bundles marked AD 14 and AD 15.

Submissions

Claimant’s submissions

Ms Rodic claims her non-economic loss damages ought to be $500,000.
Ms Rodic was 42 years old at the date of the accident. Before the accident on

5 March 2018, she had a full, contented, and satisfying life. She was a devoted parent. She was in a stable and contented long relationship with her partner Bojun, obviously had an enjoyable and productive career in employment placement and had initiated her cleaning enterprise. The evidence discloses that she had an active recreational, sporting, and social life.
Before the subject accident, Ms Rodic says she was both physically and psychologically fit and well.
Ms Rodic says the subject accident has had a devastating effect on her health both physically and more so, psychologically.
The insurer does not contest what she says has happened. She says she is emotionally unwell and in a depressed state, which all the medical treaters and assessors accept.
In terms of actual "pain and suffering", Ms Rodic is entitled to a substantial award of damages, firstly for her psychological injury. Ms Rodic suffered a devastating injury to her mental state in the prime of her life and she endures emotional agony, anguish, torment, and distress despite receiving medical treatment for her mental state. But for the subject accident, Ms Rodic would have continued to function in the same manner she had functioned in all areas of her life before the accident.
Ms Rodic says her physical injuries justify damages for pain and suffering. She has suffered permanent disabling physical injuries to her back, shoulders, neck, legs, coccyx, and to her arms. These injuries produce pain, suffering, and discomfort.
Ms Rodic claims a loss of amenities. The quality of the personal and family relationships she had with her partner and children has been greatly reduced. She has lost the following amenities of life:
(a)   marital sexual relationship;
(b)   maternal contact with her children;
(c)   employment consultant career;
(d)   cleaning business;
(e)   any employment capacity;
(f)    lost her capacity to undertake her previous sporting and recreational activities;
(g)   lost her previous capacity to socialise;
(h)   capacity as a homemaker and housekeeper;
(i)    reduced capacity in self-care, and
(j)    personality change.
There is no suggestion that Ms Rodic’s injuries cause any loss of expectation of life.
Regarding disfigurement, Ms Rodic claims that she had suffered an increase in body size and weight due to inactivity related to her accident.
She claims she has aged and lost her looks.

Insurer’s submissions

Non-economic loss

The insurer submits a reasonable award under this head of damage is $190,000.
Medical Assessor Sidorov's certificate dated 8 August 2023, confirms a central diagnosis of post-traumatic stress disorder and major depressive disorder with anxious distress.
The insurer submits the subject accident caused physical injuries which can be fairly described as being limited to soft tissue damage, allegedly impacting the lower back, upper back, neck, and both shoulders.
The description is entirely consistent with the objective results of the radiological investigations set out in Associate Professor Shatwell’s report.
Dr Graham Vickery, a psychiatrist, provided a report on 9 August 2021 after he examined Ms Rodic for the insurer. He diagnosed Ms Rodic’s condition as a somatic symptom disorder - the Motor Accident Guidelines do not recognise this condition as a basis for compensation.
The insurer submits it is a case where the relatively minor nature of the accident is inconsistent with the relatively serious psychological consequences Ms Rodic displays and which Medical Assessor Sidorov accepted.

Past economic loss

As of 20 October 2022, the insurer had paid weekly benefits broken up as follows:
Gross: $14,792.35
Net: $12,518
section 4.5(1)(d) MAI Act damages: $2,518
The insurer concedes only those amounts as reflecting Ms Rodic’s past economic loss.

Future economic loss

Despite the claimant being entitled to non-economic loss based on Medical Assessor Sidorov’s assessment, the insurer submits that this outcome is based on subjective grounds and the awarding of damages for future economic loss should be considered in the context of the accident itself, the subjective issues generally at play and the differing views of Medical Assessor Sidorov and Dr Vickery - including the possibility of a partial "misdiagnosis" by Medical Assessor Sidorov in finding that the claimant suffers from a major depressive disorder.
The insurer submits that irrespective of the diagnosis, or its origins, it is more likely than not, that over time the claimant's emotional condition will improve and not deteriorate.
Soft tissue damage resolves naturally and indeed should have resolved when Medical Assessor Sidorov assessed Ms Rodic. The insurer says I should not rely on soft tissue injury as a source of "pain" and any related asserted future incapacity for work.

The insurer submits the chances of Ms Rodic’s psychological injuries resolving in the future are in the realm of highly probable, with the result that her work capacity will improve (as opposed to deteriorating).
Ms Rodic will probably return to her pre-accident capacity for work at some point in the future before she reaches the age of 50 years and thereafter work, or be capable of work, at that capacity into the future.
The insurer recommends an economic buffer of $125,000, as this is reflective of three years’ earnings before the accident.
Orthopaedic surgeon Associate Professor Shatwell’s report (dated 22 June 2021) and psychiatrist Dr Graham Vickery’s report (dated 9 August 2021) support these submissions. The insurer submits the following figures to set out a fair and reasonable assessment of Ms Rodic’s common law damages.
The claimant's average pre-accident earnings was $876.39 net; being $495.31 in respect of her employment with ORS and $381.08 per week from her work as a self-employed cleaner. This figure roughly accords with what is claimed in the claimant's submissions.
Under cover of a letter dated 7 May 2019 Ms Forgiona, the payroll officer at ORS (page 250 of AD15), advised the claimant was employed on a permanent part-time basis, with a yearly salary of $28,200, plus superannuation. Adopting the calculation from an online payment calculator yields net weekly earnings of $495.31.
The insurer concedes that if the past economic loss is not calculated by way of a global buffer, then lost superannuation ought to be allowed at 9.5% of the gross loss or 11% of past net loss.
The claimant's earnings for her cleaning work are most appropriately assessed concerning the financial year in which the accident occurred.
The claimant's tax return for the financial year ending 30 June 2018 (page 262 of AD15) reveals she enjoyed net non-primary production income (that is income from her cleaning business) of $13,338. That reflects work done by the claimant from

1 July 2017 through to 5 March 2018, when the claimant says she ceased work. From 1 July 2017 to 5 March 2018 is a period of 35 weeks and 2 days, so approximately 35 weeks.
Averaging out the net earnings of $13,338 over 35 weeks ($13,338/35) is $381.08.
The claimant's net earnings from her self-employed cleaning work do not attract superannuation.
No allowance is to be made for inflation, see Todorovic v Waller (1981) CLR 402.

Reasons

Reliability of the claimant’s evidence

I have scrutinised Ms Rodic’s evidence as it was expressed in her interactions with treating and medico-legal doctors, her evidence in her statement, and the insurer’s counsel questioning.
Ms Rodic was consistent in her presentation as a disabled woman. I also take note of Dr Synott and Dr Shahzad’s assessments that her disabled presentation is partly influenced by a maladaptive reaction to her accident related condition.
However, as I observed her giving evidence for about two hours I assessed her as a sophisticated and well-educated woman. I am satisfied that she has a history of being a consistent worker. I am satisfied she intended to continue at ORS and operate her cleaning business part-time.
Because she has these qualities and they were apparent during the assessment I also find that she could probably return to work in the future, and this needs to be reflected in her claim for future economic loss.
The submitted medico-legal reports express some objective evidence that her physical condition has abated and expert evidence supporting her psychological condition relating to the accident and continuing, largely mixed with records of subjective complaints.
Her subjective complaints support her contention that her disability preventing her from working as well as her pain and suffering was entirely due to her accident-related injuries.

Causation

The following observations were made in the context of a medical review panel being constituted by three medical experts as opposed to a single Member assessing causation, but they are equally applicable.
Causation is defined in the Glossary at page 316 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides) as follows:
“Causation means that 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:
1.      The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.      The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This involves a medical decision and a non-medical informed judgement.
1.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. In Raina v CIC Allianz Insurance Ltd[8] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by an expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[8] [2021] NSWSC 13 (Raina) at [65].
There is no question about the scope of liability in this case.

Coccyx injury

Ms Rodic attributes her coccyx injury to the accident and to a fall she had at home on the Saturday night before she saw Dr Tomka on 22 October 2018. She says the fall happened because her accident-related physical impairments led to her losing her balance. There would be sufficient nexus between this incident and the subject accident if that were the case.
The insurer did not contest this assertion but disputes that the accident caused her coccyx condition. The next step is to assess what harm was caused and whether that harm had a nexus with the accident.
Dr Guirgis opined in his report dated 12 December 2021 that the subject accident caused post-traumatic subluxation/dislocation of the sacral-coccygeal articulation and pain. He does not address the fall at home as being the cause.
Dr Simon McKechnie, who had the same scans that Dr Guirgis was relying on did not refer to that condition in his report dated 14 June 2021 but referred to Ms Rodic suffering mild sacroiliitis.
Sacroiliitis refers to inflammation in the same region of the body. Dr McKechnie’s report specifically excluded a connection between the sacroiliitis and the subject accident.
Both doctors are qualified to comment on that part of the body, however, I prefer
Dr McKechnie’s opinion to Dr Guirgis because it is more in line with what is the preponderant evidence of what is found in the scans.
Medical Assessor Home’s certificate dated 28 August 2022 does not support the accident being linked to the sacrum region conditions. Assessor Home wrote:
“The x-ray of the sacrum performed on 23 August 2018 demonstrates angulation of the coccyx in relation to the sacrum with anterior displacement of some 5 mm. It is noted that it is not certain that this is recent or long-standing.
I note from my review of the subsequent MRI scans of the pelvis that there is no evidence of acute oedema in the coccyx or sacrum. This is notwithstanding an interval fall onto the buttocks, recorded in October 2018.
Given the mechanism of the accident, I do not find that the sacrococcygeal abnormality identified on the x-ray represents trauma. It is impossible to dislocate the sacrococcygeal joint without significant local trauma such as a fall from height onto the coccyx. The mechanism of the motor vehicle accident is not consistent with causing a structural sacrococcygeal lesion.
I note the subsequent findings of sacroiliitis of the sacroiliac joints. Bilateral sacroiliitis is also not a traumatic diagnosis.”
I am not satisfied the subject accident caused Ms Rodic’s coccyx or sacroiliitis condition and the accident.

Carpal tunnel syndrome

Although Ms Rodic attributes this condition to the accident, and Dr Guirgis gives her some support for a nexus with the accident, her treating specialist for that condition
Dr McKechnie, in the above report excludes a direct nexus with the condition and the accident. He does not explain what the nexus is, and Ms Rodic does not raise this condition until 2019 almost twelve months after the accident.
The complaint about this condition is too remote to say it is proved on the balance of probabilities that the accident materially contributed to Ms Rodic’s wrist condition.
I am not satisfied the subject accident caused Ms Rodic’s carpal tunnel syndrome.

ASSESSMENT OF DAMAGES

Non-economic loss

The fundamental principle of assessing or awarding damages to an injured person is that a tribunal should assess damages so that they represent no more and no less than a plaintiff’s actual loss: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, Lord Blackburn at [39].
In personal injury matters, because it is difficult, if not impossible, to restore an injured person to the health they enjoyed before the injury, the compensatory principle has been qualified for non-economic loss damages by the phrase “so far as money can do so”: Robinson v Harman [1848] All ER Rep 383.
Section 1.4 of the MAI Act defines non-economic loss as:
(a)     pain and suffering;
(b)     loss of amenities of life;
(c)     loss of expectation of life, and
(d)     disfigurement.
The law recognises that an award for non-economic loss will not necessarily be perfect because it cannot be calculated with precision like other forms of damage in terms of money.
Damages for personal injury are given on a once and for all basis. There is no coming back if the claimant’s condition worsens or improves.
Apart from the claimant’s subjective physical complaints, there is no pathological evidence, which supports her physical disabilities continuing. Based on the scans taken all the soft tissue-related conditions have resolved.
More than four years have passed since the accident.
Ms Rodic has submitted an appropriate assessment for non-economic loss would be $500,000. The insurer submits the appropriate amount would be $195,000. The current maximum payable for non-economic loss damages is $605,000.
Ms Rodic's pain and suffering on her account have been significant. However,
Ms Rodic’s physical injuries in the accident were soft tissue and they have now objectively resolved. She was not hospitalised. She has not attempted rehabilitation other than attending physiotherapy and performing hydrotherapy in her home.
The only surgery offered was for bilateral carpal tunnel syndrome and this is not related to the accident. There is no objective evidence supporting any ongoing connection between her physical pain and suffering and the accident. Her physical injuries from the accident were soft tissue injuries, which had resolved at least two years before this assessment.
There is no diagnosed chronic pain syndrome connected with the accident, such as fibroid myalgia or chronic regional pain syndrome.
Her complaints of pain and suffering from the physical aspects of the injury are entirely subjective, and as Dr Shahzad opined is connected with a lack of insight and maladaptive attachment to the perception that this accident has ruined her life.
Her post-traumatic stress disorder and depressive disorder have been treated with medication and counselling. Her doctors have not considered hospitalisation for interventionist treatment modes for treatment-resistant disorders.
Ms Rodic says she still relives the circumstances of the accident and dreams of the event. If so she is dreaming about her car being bumped in the rear.
Although the preponderance of evidence supports the claimed psychological diagnoses, her experience in the accident was at the less serious end of the spectrum as there were no threats to her life or loved ones. This lack of objective seriousness will be reflected in assessing these damages.
There is no objectively established physical condition related to the accident, which is feeding her depression and anxiety, although her psychological condition undermine her capacity to deal with her perceived physical limitations.
Ms Rodic complained of sexual dysfunction, impact on her relationships, and loss of identity as a worker, wife, and parent. She says she has also lost a lot of her social connections.
She was not under financial pressure after the accident, as she had received income replacement insurance payments and about $1 million for her TPD. She had a sufficient funds, even with her husband working reduced hours, to build a new home in Sydney during the pandemic, as well as support herself and her family, including overseas travel.
Surprisingly, the medical evidence has not addressed whether her psychological condition could abate with the passing of time and the physical effects of the injuries ceasing. That is the usual course when the stressors are removed.
There is no degenerative change related to the accident, which could increase
Ms Rodic's disability and pain.
Ms Rodic claims she has been disfigured because she has put on weight and that will be addressed in these damages.
I assess $180,000 for non-economic loss damages.

Past economic loss

In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined in a case such as this is whether a claimant has sustained a loss or diminution in his or her earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard for the provisions of s 4.7 of the MAI Act.
Ms Rodic has not returned to work since the accident.
She had a long recovery, coupled with the pandemic, which may have limited her opportunities to access rehabilitation and attempts to find suitable employment.
At the time of the accident, Ms Rodic worked in consistent, established employment. She was able to organise a business.
From her evidence about her past work participation, I am satisfied she had an authentic desire to continue to work. However, the non-accident sacroiliitis and carpal tunnel syndrome could have reduced her capacity, as the former would impact her cleaning and the latter her ability to complete forms, which was part of her OSR work.
It is likely that if the sacroiliitis manifested without the accident she would have treated it with massage and physiotherapy so full functioning could have been restored. With her carpal tunnel syndrome, if she were at work, her employer would have instituted measures to assist Ms Rodic to still perform her work with that condition.
The reports largely support her claim that the accident caused her inability to return to work after the accident. I assess her damages at a slight discount to reflect that other conditions could have restricted her work, as she assigns a lot of significance to the carpal tunnel condition and her coccyx condition.
I accept the insurer’s submission the claimant's average pre-accident earnings were $876.39 net; being $495.31 in respect of her employment and $381.08 per week from her work as a self-employed cleaner. I will reduce that by 5% to reflect her non-accident-related conditions, which would have impacted her work capacity.
I will calculate the superannuation on past economic loss at 11.25% of her lost ORS earnings;
$495.31 x 95% x 274 weeks after the accident = $128,929
$128,929 x 11.25% = $14,505
$381.08 x 95% x 274 weeks = $99,125
Total past economic loss $242,559

Future economic loss

Retirement age

Ms Rodic claims that but for the accident she would have worked until she was 72 years old instead of the statutory retirement age of 67 years old.
However, cleaning is hard physical work and as her non-accident-related conditions would also impact her capacity to continue in that role I assess that she would have been limited to stopping work at 67 years old.
There is no evidence from any rehabilitation service or her employer that addresses the retirement age. It is solely dependent on Ms Rodic's claim. She has given evidence that she sees the carpal tunnel syndrome as impacting her capacity to fill in forms and use a pen so the condition–which is not related to the accident–could have prevented her from working past 67 years old.

Loss of earning capacity

I am satisfied that Ms Rodic has discharged the onus that the accident caused her to lose some of her future earning capacity. This is mainly due to her accident-related psychological condition and perceived physical incapacity. However, I am not satisfied that the accident has caused her to be unemployable until retirement age because:
(a)   the broad consensus of medical evidence supports an assessment that Ms Rodic only remaining condition is psychological impairment although this impacts her perception of her physical state;
(b)   further, the disability and conditions attributable to the accident are mixed with her negative mindset and maladaptive behaviour and what the accident materially contributed to;
(c)   Ms Rodic displays intelligence and an established work ethic that convinces me she will regain the ability to return to work;
(d)   these conditions will probably abate with the passing of time, which is the usual course when stressors are removed;
(e)   Ms Rodic has never tested mitigating her loss and attempted to return to work;
(f)    it has not been tested whether Ms Rodic’s complaints could reduce her capacity to deal with colleagues and customers, and
(g)   it has not been tested whether ORS or potential employers would need to make allowance for her including additional time off work, with limited capacity to perform physical tasks.
I am satisfied there is a chance that Ms Rodic could find suitable work in the future because:
(a)   Ms Rodic has demonstrated she enjoyed working;
(b)   before the accident she demonstrated resilience and a can-do attitude in terms of seeking suitable treatment for her earlier car accident, and
(c)   in time her psychological condition may ease when suitable jobs may be available. She could return to cleaning if her carpal tunnel syndrome and sacroiliitis allowed. From her evidence about her work capacity and experience before the accident I am confident there is no Mead v Kerney[9] factor, and she would readily find suitable work after she re-entered the job market.
[9] Kerney v Mead & Anor [2011] NSWSC 518
I am satisfied these are favourable vicissitude’s that mitigate the psychological disabilities the accident caused.
Although the accident has had a material impact on Ms Rodic’s future earning capacity it is difficult to separate what the accident is actually responsible for from Ms Rodic's maladaptive attachment to her perception of what the accident has done.
I accept, too, that there is a chance that non-accident health issues, such as carpal tunnel syndrome and the coccyx/sacroiliitis condition, could have shortened her career. On her own evidence the carpal tunnel condition is not an insubstantial impact compared with her motor accident injuries.

In this case a buffer reflecting almost another five years away from work is appropriate. I assess Ms Rodic’s future loss at $200,000.

Superannuation

Superannuation is included in the buffer.

Loss of opportunity

Ms Rodic says she has lost the opportunity to grow her business.
I assess the lack of concrete plans as diminishing the probability it would grow to a possibility. However, following the dicta in Malec v Hutton[10] and State of NSW v Moss,[11] the fact that her business growing was a possibility, is something I can allow as a future buffer.
[10] (1990) 169 CLR.
[11] (2000) 54 NSWLR 536
I allow $15,000 for an additional buffer.
I calculate Ms Rodic’s future economic loss as $215,000

Assessment of damages summary

Section 7.36 (1) (b) of the MAI Act requires me to assess the damages that a court could likely award in these circumstances.
I assess the damages for this claim based on the above findings:
Non-Economic Loss   $180,000
Economic losses
Past loss of earnings   $242,559
Section 4.5(1)(d) MAI Act damages $2,518
Future loss of earnings including buffer and superannuation      $215,000
Interest  $000
Total of economic losses and non-economic loss             $640,077

Costs and Disbursements

I note the parties submissions and provide my costs decision based on data put into the SIRA costs calculator. My copy will be attached to this decision.
I decline the claimant’s application for costs for the s 7.33 MAI Act decision. I allow costs sought for the medical disputes if they have not already been paid.
I note the insurer’s submissions regarding the claimant’s treating physiotherapist’s and psychologist’s reports. I approve those costs as sought.
I approve of the insurer’s submissions on Drs Tomka and McKechnie’s reports.

Conclusion

On the issue of liability for the claim, 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 as a result of that breach of duty.
Under sub-sections 7.36 (3) and 7.36 (4) of the MAI Act, I specify the amount of damages for this claim as $640,077.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed under the MAI Act is $58,807.

Legislation

In making my decision I have considered the following legislation, authorities, and Guidelines:
· MAI Act;
· Personal Injury Commission Rules;
·        Personal Injury Commission Act 2020;
· CL Act;
·        Malec v JC Hutton (1990) 169 CLR per Deane, Gaudron and McHugh JJ at [7];
·        New South Wales v Moss (2000) 54 NSWLR per Heydon, JA at [70];
·        Husher v Husher [1999] HCA 47;
·        Medlin v State Government Insurance Commission (1995) 182 CLR;
·        Kerney v Mead & Anor [2011] NSWSC 518, and
·        Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis.

[2023] NSWPIC 273

13 June 2023