Simenes v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Simenes v Allianz Australia Insurance Limited [2025] NSWPIC 249
CLAIMANT:	Claudia Menegazzi Simenes
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Terrence Broomfield
DATE OF DECISION:	3 June 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages assessment pursuant to section 7.6; liability admitted; claimant knocked off her electric scooter after vehicle disobeyed a red light at an intersection; claim for past and future economic loss; Fox v Wood; no claim for non-economic loss as claimant did not exceed the threshold; primary injury fracture wrist of dominant hand; claimant submitted such impacted severely upon her career trajectory and likely remuneration that involved a significant component of physical work that she can no longer undertake; insurer disputed the injury had any significant impact on the claimant’s earning capacity; buffer awards for past and future economic loss; Penrith City Council v Parks considered; Held – damages assessed at $501,252 plus regulated costs.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The amount of damages for the claim is $501,252. 2. The amount of the claimant’s costs in the matter is $47,807.60 inclusive of GST. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

On 6 September 2021 Ms Simenes (the claimant) was riding an electric scooter along a marked cycleway. When riding across an intersection a Ford Ranger 4WD was driven through a red traffic light and collided with the left side of the claimant and her scooter causing the claimant to fall onto the road and suffer injuries. The third-party insurer of the Ford Ranger 4WD has admitted liability and accordingly this matter proceeds solely as an assessment of damages.
There appears to be no dispute that the claimant suffered injuries that included a significant haematoma to the left orbital/eyelid region, a head injury, bruising to the left hip with an oblique impacted and mildly dorsally angulated fracture at the lateral aspect of the left distal radius with intra-articular extension. It is only the latter injury to the left wrist that has not since recovered that the claimant alleges has caused her to suffer significant economic incapacity. The insurer disputes that the claimant has suffered any significant economic incapacity from the injury to her left wrist.
The claimant lodged an Application for Personal Injury Benefits that was signed on 12 September 2021 after which statutory benefits payments were paid to her by the insurer. Thereafter the claimant lodged an application for damages under common law that she signed on 11 January 2023.
The claimant uploaded onto the Portal its bundle of evidence in support of her damages claim on 17 February 2025 with the insurer uploading its submissions and schedule of damages on 10 March 2025. I conducted a preliminary conference on 18 March 2025. At the preliminary conference the insurer indicated its preference was to obtain a vocational assessment of the claimant however I observed that no such suggestion was made in the insurer’s written submissions earlier filed. Given at that time it was over three years since the accident and over two years since the claimant had filed his application for damages, I recorded in my preliminary conference report that in the circumstances to further delay the matter would offend the guiding principles enshrined in the governing legislation.[i]
I subsequently received a request to hold an urgent further preliminary conference to determine whether the claimant ought to be compelled to attend a vocational assessment that the insurer had arranged after the preliminary conference. I was unable to accommodate an urgent preliminary conference prior to the proposed appointment made by the insurer however did advise the insurer that if there were further matters it wished me to consider regarding compelling the claimant to attend a further medical assessment that it should urgently upload onto the Portal submissions in support of any such assertion. I received no submissions from the insurer in that regard and accordingly the assessment conference listed for 14 May 2025 proceeded.
The claimant in its bundle of evidence relied upon two statements signed by her on 11 January 2023 and 8 October 2024 respectfully together with a statement of her partner Marcelo Rios and a statement from a representative of her employer James Gifford.
Some days prior to the assessment conference the claimant made an application to lodge additional documents with those documents been supplementary statements from both the claimant and her partner Mr Rios, report of Dr David Norus general practitioner dated 1 April 2025 together with childcare attendance records of her daughter. The insurer consented to those documents been lodged and considered by me at the assessment conference. Pursuant to Rule 67(4)[ii] I propose to consider that material along with the material uploaded to the Portal by the parties.

THE ASSESMENT CONFERENCE

At the assessment conference I noted the following agreements:
(a)    the claimant has no entitlement to non-economic loss as she does not              exceed the whole person impairment threshold.
(b)   The Fox v Wood amount is $1,252 being the tax paid on the claimant’s statutory      benefits for which the claimant is entitled reimbursement.
(c)   The parties agreed the discretionary amounts for legal costs that ought to be awarded in accordance with the costs calculator provided with these Reasons
(d)   The insurer has paid statutory benefits totalling $8,775.90 for which it ought to receive a credit.
At the assessment conference the claimant was assisted by an accredited Portuguese interpreter Marcia De Almeida CPN 5CC77R. Many of the questions asked of the claimant were able to be answered by her in English without recourse to the interpreter. However, I made it clear to the claimant at the outset of the assessment conference if she had any concerns as to what was been asked of her, she should have recourse to the interpreter. I am satisfied that when the claimant failed to understand any aspect of what she was been asked she did in fact have recourse to the interpreter.
The claimant was questioned for over two hours with the claimant’s employer James Gifford being questioned via TEAMS for some 40 minutes. The insurer indicated it did not wish to question the claimant’s partner Marcelo Rios at the conclusion of the oral evidence and I accept having read the statements provided by Mr Rios that there was nothing further I wished to clarify from him.

THE EVIDENCE

The medical evidence includes the clinical records of the claimant’s general practitioner together with the clinical notes from St Vincent’s Hospital relating to the claimant’s attendance immediately after the accident. I was also provided with copies of various radiological scans relating to the claimant’s primary injury namely, the fractured left wrist together with photographs of the claimant taken soon after the accident disclosing various injuries.
Evidence from the claimant’s general practitioners included a medical certificate signed by Dr Martianne Bersano dated 9 October 2024 that confirmed the claimant had suffered “intermittent pain in the left wrist since the car accident with an x-ray done last year showed she has features of erosive/degenerative artrhopaty (‘arthropathy’ seemingly incorrectly spelt) causing this pain”.[iii] Dr Norus in his report dated 1 April 2025 confirms that the claimant has been under his care since the motor scooter accident on 6 September 2021 with the left distal radius fracture been an injury that ‘’significantly impacts the day-to-day function’’[iv] Dr Norus in his clinical examination noted ‘’reduced range of motion in both medial rotation and ventral (palmar) flexion, ongoing pain with certain movements’’[v] and whilst grip strength was noted to be preserved the claimant’s reduced functionality remained of concern. Dr Norus is aware the claimant is left hand dominant, works as a waste educator with a commercial cleaning company with her job description involving many physical tasks including lifting and moving equipment. It was also noted that the claimant’s work involves computer work which requires sustained wrist mobility. The claimant’s ability to care for her toddler Dr Norus noted due to her wrist injury has been impacted due to her ability to lift, carry, and perform caregiving tasks.
Dr Norus seemingly recently consulted with the claimant and opines that given the persistence of her symptoms and the functional limitations both at work and at home further rehabilitation, activity modification, and ergonomic support are recommended.[vi]
The claimant was assessed by two medico-legal doctors at the request of her solicitors. Dr Conrad examined the claimant 2 May 2023 and diagnosed that the claimant suffered a fractured left wrist and needed at that stage conservative treatment including medication, medical supervision, physiotherapy and probably psychological counselling. Whilst the claimant was assessed for whole person impairment of 4% in a supplementary report.
Dr Conrad was provided with the claimant’s first statement that set out the physical aspects of the claimant’s job description prior to the accident. Dr Conrad opined the claimant ought to be restricted to light duties at that time up to 20 to 30 hours per week with a lifting restriction of five kilograms in her left hand and advised she ought to avoid repetitive tasks with the left-hand. Dr Conrad further opined that there was a possibility that the claimant will develop arthritis in the left wrist because of the accident however it was premature to give a more accurate prediction.
The claimant was examined by Dr Dias Occupational Physician 4 July 2023. Dr Dias recorded that the claimant “continues to struggle with ongoing mild to moderate left wrist pain, stiffness and discomfort daily’’[vii] Dr Dias opines that the claimant “suffers from chronic left wrist pain, stiffness and discomfort, with associated post-traumatic De Quervain’s tenosynovitis, secondary to an acute left distal radius fracture with associated intra-articular extension.”[viii] Dr Dias prognosticated that the chance of any significant clinical improvement in relation to the left wrist is likely to be “relatively poor”.[ix] Dr Dias further confirmed the claimant was partially incapacitated for employment ever since returning after the initial period off work immediately after the accident.
Dr Dias assesses the claimant to be fit for work on a part-time basis up to 30 hours per week with restrictions with lifting restrictions of weights greater than two and half kilograms with the left-hand as well as avoiding repetitive use of hand tools and power tools with the dominant left-hand. He also placed a 30-minute restriction on any prolonged writing or computer-based keyboarding. These restrictions Dr Dias opined were likely to remain on an indefinite basis into the foreseeable future. The claimant’s working life was assessed by Dr Dias to be truncated by some five years after considering the risk of further degeneration and deterioration of her wrist injury over the remainder of her working life.[x]
The insurer provided no additional medical evidence.
The lay evidence comprised three statements from the claimant, two statements from the claimant’s partner Marcelos Rios that a statement from the claimant’s employer James Gifford. The evidence contained within the statement of claimant’s partner Marcelos Rios was initially intended to corroborate the claimant’s pre-accident intentions in relation to her career trajectory and to provide some evidence of the likely remuneration available to the claimant upon advancement to a site manager and thereafter an area manager. However, after hearing from James Gifford at the assessment conference the claimant’s counsel in closing submissions primarily relied upon his evidence to corroborate and prove the claimant’s pre-accident potential career trajectory, likely timing of promotions and remuneration. Consequently, no submission was made in respect to assessing the claimant’s likely remuneration as an area manager by recourse to the salary received by her partner Marcelo Rios but rather, I was referred to the assessment of John Gifford both in respect to the timing of future promotions and the likely rate of remuneration.
The claimant has worked for the commercial cleaning company Dimeo Services (Australia) Pty Ltd since January 2017 some months after emigrating to Australia from Brazil where she was born and educated. She studied and obtained an Arts degree in Brazil and subsequently worked in retail and real estate before emigrating. Her real estate qualifications are not recognised in Australia. The claimant deposes that she has now qualified for permanent residency.
The claimant was employed as a recycling manager prior to the accident and said her duties were physically active and at times heavy, as well as been repetitive involving a lot of bending and repetitive movement that also involved substantial use of the dominant left arm and hand. The position of a recycling manager involved ensuring waste products that were taken from various sites were correctly allocated into paper, plastic and general rubbish bins those bins were up to 1,100 litres that the claimant had to move, as well as physically clean the recycling plant.
Some three months prior to the accident namely in about June 2021 the claimant was requested by her employer to alter her duties to undertake cleaning in a shift from 11.00am to 2.00pm and be a cleaning supervisor in a shift from 6.00pm to 11.00pm. The claimant expected to return to her full-time position as a recycling manager soon after returning to work after the accident. Although these combined shifts result effectively in full-time hours an analysis of the wage records discloses during that period, she worked from 20 hours per week to 43 hours per week which correlated with part of the second period of shutdown in New South Wales due to the covid pandemic.
The claimant concedes in her statements that her earnings prior to the accident were adversely impacted by the covid pandemic. She acknowledges that there were two occasions in which there were lockdowns that clearly adversely impacted upon the business with whom the claimant was employed. New South Wales was locked down from 23 March 2020 to 1 June 2020 and then subsequently from 26 June 2021 to 11 October 2021. The accident occurred some five weeks prior to the end of the second period of lockdown. The claimant and John Gifford both confirmed that the commercial cleaning business that employed the claimant was adversely affected by the covid pandemic. This is borne out by an analysis of the payslips that I was provided with of the claimant’s earnings from 5 September 2020 to 23 June 2023 that was helpfully summarised in a table at the conclusion of the insurer’s submissions.
The claimant deposes that she was off work for approximately six weeks however the wage records disclose that she was not paid for almost 12 weeks after the accident during which time she was in receipt of some statutory benefits payments. When she returned to work, she deposes that she was undertaking the former role as a recycling manager but only part-time for four hours a day working an additional three hours at night as a cleaner. The claimant indicated that she was advised that the business had lost clients and hence there was less recycling.
Before returning to work the claimant became aware that she was pregnant and knowing that maternity leave was imminent she was content to maintain the dual roles until her return from maternity leave. Had the accident not have occurred the claimant deposes that she would have in a short period of time become a site manager and would have sought a full-time position at that level either with her current employer or an alternative employer. She confirmed the higher-grade manager positions also have a substantial component of physical and repetitive heavy work.
The claimant further deposes that she commenced her maternity leave very shortly before the birth of her daughter who was born on 22 July 2022. Whilst the summary of the wage records discloses that the claimant was paid for some three weeks after taking non-paid maternity leave, I note the actual payslips disclose almost three weeks of annual leave payments during this period.
There is a paucity of evidence relating to the claimant’s earnings during this period when the claimant returned from maternity leave on or about 13 February 2023 until the claimant accompanied her mother to Brazil for some three to four months from late September 2023. For this period of seven and a half months the claimant’s written submissions refer to her working only 30 to 32 hours per week as a recycling manager. When I examine the payslips for the period 4 February 2023 to 23 June 2023, I note that I have only been provided with every second fortnightly payslip been a total of five fortnightly payslips that disclose fortnightly hours worked of 22, 53, 40, 40 and 66 hours respectively. The payslips record various hours of normal pay with several rates of pay that I infer means the claimant was not working exclusively as a recycling manager. I also note on the payslip there is reference to an allowance for ‘supervision’ consistent with the allowance received when previously working as a recycling manager.
The claimant’s oral evidence was that had the accident not have occurred she would not have accompanied her mother to Brazil for the three to four months but rather would have maintained her full-time employment in what she would have expected to have then been a site manager prior to being appointed an area manager in late 2023 or early 2024.
It Is difficult to ascertain precisely when the claimant returned to work after the period she spent in Brazil with her mother particularly as I have not been provided with any wage records after 23 June 2023. There is evidence from the claimant that in about July 2023 the severity of pain in her left wrist caused her to make a decision in relation to her hours of work. This was bought about by the repetitive and heavy work that was aggravated by the demands of her home duties and caring for her young child which in her view mandated the need to reduce the working week to four days per week to permit recovery over a three-day weekend. The claimant deposes that had her request for a reduction in work days not being granted she would have sought employment elsewhere indicating that such was the level of pain that she could not continue to work beyond a three-day week.
The claimant also deposed to a change in her work role for the last 12 months when she became a waste educator at a salary of $60,000 per annum that results in her receiving a net wage of $895 per week net for working four days per week.
Whilst the claimant conceded the current position as a waste educator maybe slightly less physically demanding than some of her previous roles, she nevertheless experiences escalating pain in her left wrist by the end of every shift. She describes that most of the days at work involve the installation and maintenance of electronic trackers on industrial waste bins. This involves mounting trackers to various size bins and replacing batteries in up to 40 bins daily that necessitates removing six screws on each bin and thereafter replacing batteries and reinserting the six screws to reinstate the tracker. She is also required to physically move heavy bulk waste bins for weighing and recording prior to disposal as well as stacking and relocating empty 120 litre and 240 litre bins that weigh approximately eight and a half kilograms and twelve and half kilograms respectively. She is also required to spend some time at the computer searching those bins that require battery replacement as well as typing audit reports. Part of her duties also involve delivering training sessions on correct waste-stream disposal.[xi]

The claimant’s counsel in closing submissions relied upon the statement and oral evidence of James Gifford to support the claimant’s career trajectory but for the accident together with the range of remuneration for the positions she would have secured had the accident not have occurred. Mr Gifford is employed as Executive General Manager at Dimeo Cleaning Services has been with that company for a total of 10 years with he having been in his current position for the past four years.
In his statement Mr Gifford described the claimant as:
“an exemplary employee, she was hard-working, reliable, and had significant potential for advancement…. She was recognised by me and other management staff as a strong candidate for a promotion to Site Manager……. She was earmarked by me for promotion to Site Manager within approximately one year of the accident, with a clear trajectory toward the more senior position of Area Manager thereafter.”[xii]
Mr Gifford also deposed that the claimant was trilingual being fluent in Portuguese and Spanish as well as being able converse in English which further strengthened her potential for higher management roles as many of the employees were non-English speaking workers. As the person responsible for the claimant’s career advancement Mr Gifford deposes that he would have expected the claimant to be promoted to site manager within one year of the accident earning between $90,000 and $95,000 with additional benefit such as a mobile phone and laptop. He further deposed that within one to two years of becoming a site manager she could have reasonably expected to be considered for the role of area manager that would have elevated the salary to approximately $100,000 or more together with a company car or car allowance.[xiii]
Mr Gifford both in his statement and his oral evidence confirmed that the claimant’s inability to work five days a week effectively dis-entitled her for promotion to either site manager or area manager as both had a significant physical aspect to those roles. For example, a site manager is required to collect chemicals from the Alexandria depot. These may include three, five litre containers of chemicals that are in a box, and deliver them to the site. Furthermore, equipment may be needed to be collected from other sites which may include carpet spotter machines, carpet extraction equipment and the like.
An area manager Mr Gifford explained, also has a similar role in respect to the physical transportation of chemicals and equipment but has responsibility for more sites. Notwithstanding been questioned in relation to the possibility of delegation of the heavy work to other staff for both the site manager and an area manager Mr Gifford confirmed that the more onerous physical tasks cannot effectively be delegated. Having had an opportunity of regularly observing the claimant after the accident and as recently as the day prior to the assessment conference Mr Gifford is aware of the claimant’s restrictions and inability to work beyond four days per week.
Finally, I was provided with statements from the claimant’s partner Marcelo Rios who commenced work as a cleaner with Dimeo Services where the claimant is employed, and had a career progression similar to what Mr Gifford predicted would have been the career progression of the claimant had the accident not have intervened. Mr Rios is currently an area manager in another commercial cleaning business and recounts the physical aspects of his job which is common in a commercial cleaning business. Mr Rios confirms that the impact of the injury received to the claimant’s left dominant hand preclude her from working five days per week that otherwise would disentitle her to be considered for any position as a site manager or area manager.

SUBMISSIONS

The claimant’s submissions

The claimant’s counsel in his submissions significantly refined the written submissions although still proffered an arithmetical calculation for the claimant’s past and future economic loss. It was submitted on behalf the claimant uninjured because of Covid she would have returned to her pre-accident earnings by July 2022 on a full-time basis prior to commencement of her maternity leave. A conservative assessment, it was submitted would see her to have progressed to site manager by February 2023 at the latest and she would have been in receipt of between $90,000 per annum and $95,000 per annum which translates on a net basis to $1,316 per week and $1,380 per week. Again, on a conservative basis when reflecting upon the evidence of Mr Gifford it is submitted at the latest by February 2025 the claimant would have progressed to the position of Area Manager where she would have commanded between $100,000 per annum and $130,000 per annum that results in a weekly net amount of $1,523 per week and $1,927 per week. These figures it is suggested demonstrates an ongoing loss of up to $1,000 per week.
The claimant’s counsel submitted that the $1,000 per week demonstrable loss ought to be assessed until the claimant is 62 years of age and thereafter the truncated working life prognosticated by Dr Dias ought to result in an assessment of total loss for the last five years of the claimant’s working life between age 62 and 67 appropriately deferred by harnessing the deferral tables.
It was submitted that the appropriate calculation of loss of superannuation would then be undertaken in respect of both past and future economic loss.

The insurer’s submissions

The insurer in its closing submissions at the assessment conference forensically analysed and disputed material in the claimant’s written submissions which as I indicated at the hearing had been significantly refined by claimant’s counsel in his closing submissions. The insurer’s counsel submitted that I would accept the claimant’s first statement that she had an intention to have one year off work for her maternity leave and as a result there ought to be no loss provided from July 2022 to July 2023. Further there would be no loss attributable to the three to four months that the claimant spent in Brazil from the end of September 2023 to her return to work in early 2024 as the claimant would have accompanied her mother back to Brazil in September 2023 regardless of the accident to introduce her young child to her family and extended family.
Furthermore, the insurer’s counsel submitted that I would not be satisfied that there was a medical basis for the claimant to reduce her full-time work to four days per week noting that Dr Dias suggested she could perform five days per week albeit six hours per day. The insurer’s counsel submitted that help would have been available in the workplace to assist the claimant in undertaking any awkward lifting and as such I ought not accept the progression to further management roles would not be available to her.
In relation to the potential reduction of the claimant’s working life it was submitted that I ought favour Dr Conrad’s assessment over Dr Dias. Dr Conrad opined that there was only a possibility of the claimant developing arthritis in the left wrist and Dr Conrad is more qualified to express such a view. Dr Conrad also opined that the reduction in the claimant’s hours after the return to work prior to her maternity leave were occasioned by the impact of the pregnancy as opposed to any accident-related condition.
Further, it was submitted that I ought to accept the recorded history of Dr Conrad in relation to the reduction of hours after she returned to work been necessary due to her pregnancy rather than any accident-related condition. Dr Conrad it was submitted reported that about two months ago the claimant’s hours were reduced to 20 hours per week due to her pregnancy.
Finally, reliance was placed upon the insurer’s written submissions when assessing damages that I ought only award an amount for the initial period off work immediately after the accident and at best a modest buffer of $20,000 for future economic loss.

CONSIDERATION AND FINDINGS

There is no evidence contrary to the hospital clinical notes recording the claimant’s injuries soon after the accident and the medico legal assessments of both Dr Conrad and Dr Dias. It is clear the claimant suffered in the accident and an acute closed head injury primarily affecting the left periorbital region as well as an acute soft tissue injury affecting the left hip region with both those injuries having clinically resolved certainly by May 2023. The primary injury that continues to cause the claimant difficulties is an acute left distal radius fracture with associated intra-articular extension that causes claimant to continue to suffer chronic left wrist pain, stiffness and discomfort. The injury to her left wrist noting she is left-handed, has resulted in assessed restrictions by both Dr Conrad and Dr Dias with lifting limits, reduced hours and avoidance of repetitive tasks. I find that the claimant is exhausting her residual earning capacity by working as a waste educator four days per week or approximately 30 hours per week where she earns approximately $895 net per week. I am satisfied from the claimant’s evidence and the opinions of Dr Dias and Dr Conrad that her current position exceeds the restrictions that should apply to the claimant’s work duties.
Having heard from the claimant who was questioned for over two hours I formed a very favourable impression of the claimant as a person who answered all questions truthfully and without embellishment. She has clearly given to her employer faithful and diligent service for over four and a half years prior to the accident that caused Mr Gifford as her superior to describe her as having a strong work ethic and been an exemplary employee. He was glowing in his assessment of the claimant as an employee and he is one of those directly responsible for her career progression and has had the benefit of observing the claimant in her work roles regularly.
I find the claimant to be an extremely reliable witness and I accept her as a witness of truth. I was also equally impressed with the evidence provided by Mr Gifford and similarly accept his evidence unreservedly.
Whilst the insurer’s counsel took issue with the claimant in relation to her stated intention to take 12 months maternity leave and subsequently referred to six months such needs to be assessed in context. The claimant’s first statement where she indicated:
“absent the accident, I probably would have returned to work after a year or so following the birth of my daughter. My mother is available for one year to assist me while my daughter is younger and then she would have been able to go to childcare so I could have returned to work full-time.”[xiv]
The above statement was signed by the claimant approximately six months after the claimant commenced her maternity leave and approximately four weeks prior to her in fact returning to work. When questioned at the assessment conference the claimant consistently denied the intention to take 12 months off work for maternity leave and justified such on the basis that her maternity leave was not paid and financial pressures mandated the need to return to work at that time. Clearly, the assistance with childcare from her mother remained until she accompanied her mother to Brazil in September 2023 some seven to eight months after she in fact returned to work. Whilst she may have contemplated potentially 12 months maternity leave had the accident not intervened, I accept that the financial pressures of no income would have similarly mandated her need to return to work soon after six months or so even if the accident had not occurred.
The deduction of hours from 35 hours a week to 20 hours a week that was submitted by the insurer was caused by the claimant’s pregnancy rather than any accident-related condition was based on the history recorded by Dr Conrad. Dr Conrad assessed the claimant on 2 May 2023 and records in his report of 3 May 2023 “About two months ago, her hours were reduced to 20 hours per week. She says that this change was due to a pregnancy, her baby been delivered in July 2022.”[xv] To interpret Dr Conrad’s timeline as he has written his report would result in the reduced hours commencing in February/March 23 that is, two months prior to this consultation. Clearly Dr Conrad intends to convey the history that the reduced hours were in the last two months of the claimant’s pregnancy and he the records that the baby was delivered in July 2022.
The claimant denies that her reduced hours were caused by the pregnancy and indeed when I examine the wage records after the accident accepting that I only have the benefit of every second fortnightly payslip the claimant appears to have worked consistently 35 hours per week or more after her return to work after her initial period off after the accident until the commencement of her maternity leave. In those circumstances I cannot accept that the pregnancy impacted upon the claimant’s work hours and that Dr Conrad has recorded what clearly must be a misunderstanding noting that the wage records corroborate a reduction of hours some two months before the date of Dr Conrad’s consultation with the claimant but not two months before the birth of her child. Dr Conrad in a supplementary report dated 15 June 2023 attempts to clarify the position by indicating “As stated in my report about two months prior to my writing the report in May 2023, she started work as a supervisor doing 20 hours per week, which was also related to the pregnancy”. However, at that point in time the claimant was certainly not pregnant as she had then a child who was the eight months of age. Accordingly, I do not accept that the pregnancy impacted upon the claimant’s work hours.

ASSESSMENT OF THE DAMAGES

Past economic loss

It was submitted on behalf the claimant by making some assumptions I could arithmetically calculate a figure for past economic loss. I was urged to find the claimant would have been earning on her return to work after the accident $850 to $950 per week net prior to her taking maternity leave. Thereafter she would have returned to full-time work with a reasonable expectation that she would have progressed to become a site manager by February 2023 and earning between $1,316 per week net and $1,380 per week net. As and from February 2025 it was submitted the claimant would have become an area manager earning between $1,523 per week net and $1,927 per week net. I was thereafter invited to award past economic loss for the differential between the likely earnings and what the claimant earned since the accident.
The insurer on the other hand, submitted it was unclear as to the length of time the claimant originally took off work after the accident and that a reasonable assessment would be eight weeks and the average pre-accident rate of pay of $569 per week resulting in a figure of $4,552 to which superannuation of $500 is to be added without any further loss compensated thereafter.
As I indicated at the conclusion of the hearing is to be impossible to compute accurately an amount for past economic loss due to:
(a)    the impact of the Covid pandemic with the second lockdown in New South Wales only ceasing approximately five weeks after the accident that correlates with approximately half the time the claimant was initially off work after the accident and how it would have impacted upon her earnings.
(b)    The impact of the Covid pandemic generally on the commercial cleaning business within which the claimant worked and precisely what effect the post lockdown period would have had upon the claimant’s role and hours of work with her employer.
(c)    In the background of the Covid pandemic generally attempting to predict the actual earnings of the claimant had the accident not intervened particularly in the background of the immediate pre- accident earnings ranging from 20 hours a week to 43 hours per week.
(d)    Quantifying the actual earnings of the claimant given the paucity of post-accident wage records that fail to cover almost the last two years of earnings with only every second fortnightly pay record been provided for the post-accident period up until 23 June 2023.
(e)    The lack of certainty in respect to the precise likely timing of the career progression of the claimant notwithstanding accepting the general tenor of the evidence of Mr Gifford.
It is difficult even to provide a realistic estimate of what the claimant was earning at the date of the accident with the insurer submitting the average for the period of wage records provided amounts to $569 per week. The claimant produced a figure of $944 per week with there been no real explanation as to how that figure was calculated.
I accept that there is a demonstrable loss for almost 12 weeks immediately after the accident and an amount will need to be factored into an overall buffer for past economic loss for this initial period. I also accept that there was a likelihood after the claimant’s return to work after her initial period off work that she would have returned full-time to the recycle manager position before soon thereafter been promoted to a site manager in accordance with the evidence of Mr Gifford and indeed the claimant’s expectation. I accept the claimant’s oral evidence that for the past 12 months she has received a net weekly wage of $895 per week in the role of waste educator working four days per week. This would appear to be approximately $400 per week net less than the lower end of the range of what Mr Gifford predicted would have been her likely wages as a site manager. If her progression in accordance with Mr Gifford’s evidence would have resulted in her receiving somewhere between $1,500 per week and $1,900 per week net as an area manager resulting in a potential loss from what was submitted on behalf the claimant would have commenced earlier this year of between $600 per week and $1,000 per week.
As I am bereft of wage records particularly for the period from 23 June 23 to date although I am content of more recent times and perhaps for the last 12 months the claimant has been earning at the rate of $895 per week, I need to be conservative in respect to my assessment of an appropriate buffer.
Factoring all the matters referred to above the appropriate buffer for past economic loss is $50,000 inclusive of loss of superannuation contributions and I so assess.

Future economic loss

The claimant submits I ought to assess her future economic loss based on the disparity between an area manager salary and the current salary of the claimant working as a waste educator and the rate of $895 per week for her four-day working week effectively until the age of 62. It is submitted on behalf of the claimant that her working career will be reduced five years in accordance with the formula provided by Dr Dias and for the last period of the working life she should be assessed as totally unemployable because of the likely impact of degenerative changes in the left wrist.
The insurer on the other hand submits that the supervisory role that is involved as a site manager or area manager would be essentially administrative and light work and such is still available to the claimant.
It is clear from the evidence of Mr Gifford that the positions of site manager and area manager have a significant component of heavy work associated with them involving lifting and moving consumables as well as equipment from either the company’s warehouse or from site to site. I accept that the claimant has currently a reduced capacity to work beyond four days per week and neither site manager or area manager can involve an employee that is not full-time. Accordingly, the claimant has suffered a significant loss of opportunity for progression to initially a site manager and thereafter an area manager that would have resulted in significantly greater remuneration that currently the claimant due to her injury is unable to pursue.
In relation to the likely degenerative changes that will further potentially impact upon the functionality of the claimant’s left dominant hand the claimant’s counsel submitted that there was already evidence of degeneration present in the left wrist. Dr Dias I note refers to ‘’further degeneration and deterioration… (my emphasis).[xvi] However, the claimant’s counsel referred to the medical certificate of Dr Martianne Bersano the dated 9 October 2024 who indicated “An x-ray done last year showed she has features of erosive /degenerative artrhopaty causing this pain”.[xvii] This is difficult to reconcile with an extract of one of the enclosures with Dr Dias report where he indicates in relation to an x-ray of the left wrist dated 24 January 2023 “No features to suggest the presence of an erosive or degenerative arthropathy are noted”.[xviii] I do not have the benefit of the relevant X-ray report. Dr Conrad was provided with the same X-ray report and makes no reference to it when referring to any degenerative changes present at the time whereas in his supplementary report he indicated “There is a possibility that she will develop arthritis in the left wrist as a result of the accident. It is too early to give a more accurate prediction”.[xix]

In the circumstances and in the absence of having the benefit of the X-ray report of the left wrist dated 24 January 2023 I am not able to make a finding that there is already in existence degenerative changes in the left wrist but must factor in to any assessment the chance of there been future degenerative changes at the fracture site.
In relation to the decision by the claimant to reduce her hours in July 24 the claimant deposes:
“My difficulty was that after work, with increased pain, I really needed to go home and rest but I couldn’t do that so I was going home in pain and then increasing that pain by looking after my daughter and our home. I quickly found I couldn’t balance my commitments and keep doing all of what was required when I was in pain every day. With one day off per week I have had it slightly easier and have had less pain as I usually have at least one day where I can rest if I need to. My daughter still currently attends day care 5-days per week.’’[xx]
At the time the claimant reduced her working week to four days per week in July 2024 the claimant’s child was two years of age. As the claimant’s child ages clearly, the child will become more independent and require less hands-on care from the claimant. The claimant said that she does not propose to have any further children.
I assess that the claimant is likely to remain with her current employer in the foreseeable future. She clearly has a good rapport with her employer who has provided a glowing assessment of her as an employee.
Whilst Mr Gifford made it clear that unless she can work five days a week she remains unable to take on the role of site manager nor indeed area manager however he still indicated in his statement that the claimant “is still included in our succession and progression planning for that position (site manager)”.[xxi] This is no doubt as a result of the claimant not only been an exemplary employee but has the attributes required for advancement in the company such as leadership qualities been trilingual and with a track record of having a strong work ethic. The claimant possesses all the qualities sought by her employer for advancement to those manager roles and Mr Gifford further advised that the company has more recently had a 20% per annum consistent growth which justified the timing of his career projections for the claimant.
The claimant gave evidence that she had recently sought from the insurer assistance with further treatment in particular, physiotherapy however her request was declined. The insurer submitted should further treatment be harnessed it may deliver improved functionality that may be exercised in the workplace. The claimant’s general practitioner Dr Norus has recommended further rehabilitation which I infer would have been beneficial to the functionality of the claimant in the workplace.
Whilst I am convinced that there would have been a likely career path that would have seen the claimant in an area manager role by now it is difficult to predict on the balance of probabilities what might be her future roles with her existing employer going forward. Although the courts have encouraged an arithmetical assessment of damages where possible there remains too many imponderables that makes it difficult to determine what is likely to be the disparity of income to be received by the claimant during the balance of her working life that embraces potentially some 29 years. Whilst I have a level of satisfaction that it is likely that the claimant would have been promoted to an area manager role with her employer by now there are several imponderables that could dramatically impact upon what she is likely to earn in the future whilst maintaining her employment with her current employer.
In Penrith City Council v Parks[xxii] the Court of Appeal sanctioned the provision of a buffer award where it was difficult to determine with precision the impact the injury had upon the injured person exercising their earning capacity. I accept that there will always be a substantial disparity between the likely earnings of the claimant and what she would have likely earned as an area manager. I do need to factor into my assessment the chance that with further treatment as recommended by the treating general practitioner her employability with her current employer will be enhanced together with the prospects of further opportunities that may be available in the medium term due to:
(a)    the accolades given to the claimant by Mr Gifford who described her as an exemplary employee.
(b)    Her career progression been foremost in the mind of Mr Gifford who said the claimant still features in the company’s succession and progression plan to site manager.
(c)    The consistent recent growth of the company that employs the claimant that may facilitate further opportunities for the claimant
In all the circumstances I assess a buffer for future economic loss in the sum of $450,000 inclusive of loss of superannuation contributions.
SUMMARY OF DAMAGES
Past economic loss $ 50,000
Fox v Wood $ 1,252
Future economic loss $450,000
TOTAL $ 501,252

COSTS and DISBURSEMENTS

I assess costs that were agreed between the parties at the assessment conference in accordance with the enclosed cost calculator.
LEGISLATION CONSIDERED
· Personal Injury Commission Act 2020;
· Personal Injury Commission Rules 2021;
· Motor Accident Injuries Act 2017;
· Motor Accident Injuries Regulation 2017

[i] Section 42 Personal Injury Commission Act 2020.

[ii] Personal Injury Commission Rules 2021.

[iii] Medical Certificate Dr Martianna Bersano dated 9 October 2024 page 194 claimant’s documents.

[iv] Medical report Dr Norus dated 1 April 2025 page 3 additional documents bundle of the claimant.

[v] Medical report Dr Norus dated 1 April 2025 page 3 additional documents bundle of the claimant.

[vi] Medical report Dr Norus dated 1 April 2025 page 4 additional documents bundle of the claimant.

[vii] Medical report of Dr Dias page 61 claimant’s bundle.

[viii] Medical report Dr Dias page 65 claimant’s bundle.

[ix] Medical report Dr Dias page 67 claimant’s bundle.

[x] Medical report Dr Dias page 69 claimant’s bundle.

[xi] Statement of claimant pages 7 and 8 of the claimant’s additional documents bundle.

[xii] Statement of James Gifford page 40 of the claimant’s bundle.

[xiii] Statement of James Gifford page 41 of the claimant’s bundle.

[xiv] Statement of claimant page 30 claimant’s bundle.

[xv] Medical report of Dr Conrad dated 3 May 2023 page 44 of the claimant’s bundle.

[xvi] Medical report of Dr Dias dated 4 July 2023 page 69 of the claimant’s bundle.

[xvii] Medical certificate Dr Martianne Bersano dated 9 October 2024 page 194 of the claimant’s bundle.

[xviii] Medical report Dr Dias page 57 of the claimant’s bundle.

[xix] Medical report Dr Conrad dated 15 June 2023 page 52 in the claimant’s bundle.

[xx] Statement of the claimant dated 8 October 2024 page 35 of the claimant’s bundle.

[xxi] Statement of James Gifford dated 18 September 2024 page 41 of the claimant’s bundle.

[xxii] 2004 NSWCA 210.

[2025] NSWPIC 249

3 June 2025