Tan v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 196
•9 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Tan v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 196 |
| CLAIMANT: | Peter Tan |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Anthony Scarcella |
| DATE OF DECISION: | 9 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of a claim for damages; liability not disputed; no contributory negligence alleged; physical injuries and psychiatric/psychological injuries; claimant’s reliability as a historian in issue; no entitlement to non-economic loss; claim for past and future economic loss; insufficient evidence to enable an assessment of economic loss; consideration and application of section 4.7; Medlin v State Government Insurance Commission, Husher v Husher, and Penrith City Council v Parks considered; Held – claimant is not entitled to damages for past and future economic loss; insurer to pay the claimant’s legal costs and disbursements in accordance with Part 8 and the Motor Accidents Injuries Regulation 2017 as agreed or assessed. |
| 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 $0. 2. The insurer is to pay the claimant’s legal costs and disbursements in accordance with Part 8 of the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 as agreed or assessed. A statement setting out the Commission’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
BACKGROUND
This dispute relates to an application for an assessment of a claim for damages (the Application) under s 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 21 August 2019 (the motor accident).
The claimant, Mr Peter Tan, is a 73-year-old man, who alleges he suffered physical and psychological injuries as a result of the motor accident.
On 2 September 2019, Mr Tan made an application for personal injury benefits in respect of the motor accident. The relevant compulsory third-party insurer is Insurance Australia Limited t/as NRMA Insurance (the insurer).
On 19 May 2022, Mr Tan made an application for damages under common law.
On 22 July 2022, Mr Tan lodged the Application with the Motor Accidents Division of the Personal Injury Commission (Commission).
At a preliminary conference on 11 March 2024, the parties agreed that the following issues were required to be determined by me:
(a) the nature and extent of Mr Tan’s injuries and incapacity;
(b) Mr Tan’s entitlement to damages for past loss of earnings including superannuation, and
(c) Mr Tan’s entitlement to damages for future loss of earnings including superannuation.
At a preliminary conference on 29 July 2024, the matter was set down for an assessment conference on 6 November 2024. Mr Mark Daley of counsel appeared for Mr Tan, instructed by Mr Michael Tran, solicitor. Mr Daniel Stoddart, solicitor appeared for the insurer.
At the commencement of the assessment conference, the parties agreed that:
(a) settlement negotiations had been exhausted;
(b) Mr Tan had no entitlement to damages for non-economic loss;
(c) there was no deduction to be made under s 3.40(1)(b) of the MAI Act as Mr Tan did not receive statutory payments of weekly benefits and therefore, there were no payments made by the insurer under s 4.5(1)(d) of the MAI Act (Fox v Wood damages);
(d) there were no advance payments made to Mr Tan by the insurer, and
(e) the insurer wholly admitted liability for the claim and there is no allegation of contributory negligence on the part of the claimant.
At the commencement of the assessment conference, the insurer requested that my reasons for decision be issued in draft as, depending on the outcome of the assessment, it may need to make submissions in relation to the issue of costs. Draft reasons were provided to the parties as requested by the insurer.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Mr Tan’s final tender bundle of documents relied on in his case lodged with the Commission on 21 October 2024 (claimant’s documents);
(b) the insurer’s final tender bundle of documents relied on in its case lodged with the Commission on 28 October 2024 (insurer’s documents), and
(c) the claimant’s application to admit late documents lodged with the Commission on 6 November 2024 (AALD).
Oral evidence
Oral evidence was adduced from Mr Tan at the assessment conference.
SUBMISSIONS
Mr Tan’s legal representatives provided written submissions on the substantive issues dated 21 October 2024, supplemented by oral submissions at the assessment conference.
The insurer’s legal representatives provided written submissions on the substantive issues dated 23 October 2024, supplemented by oral submissions at the assessment conference.
Outlines of the parties’ respective submissions are referred to under each relevant issue for determination set out below.
THE NATURE AND EXTENT OF THE INJURIES AND INCAPACITY
Application for personal injury benefits
On 2 September 2019, Mr Tan signed an application for personal injury benefits in respect of the motor accident (application form).[1]
[1] Claimant's documents at pages 27-31.
The application form set out the basic particulars of the motor accident and Mr Tan provided the following description of the motor accident:
“I parked my car in Fairfield Showground’s car park. I was walking in the car park when a car collided with my legs and body and I fell onto the car bonnet and onto the ground.”[2]
[2] Claimant's documents at page 28.
Mr Tan stated that, as a result of the motor accident, he had suffered injuries to his neck, chest, both hands and arms, right shoulder, both knees, left ankle, left foot and shock. There was no reference to injuries to his upper back, lower back or teeth as stated in Mr Tan’s evidentiary statements.
Mr Tan stated that he was taken to Fairfield Hospital by ambulance and was discharged on 21 August 2019.
Mr Tan denied that he was suffering an illness or injury affecting the same or similar parts of his body at the time of the motor accident.
Mr Tan stated that he had not been away from work as a result of the motor accident. Further, Mr Tan made no reference to earning an income driving taxis at the time of the motor accident.
Mr Peter Tan’s evidence
In evidence, there are written statements by Mr Tan dated 22 August 2019 (to NSW Police),[3] 15 February 2021, 28 February 2023 and 24 May 2024. He also gave oral evidence at the assessment conference.
[3] Claimant's documents at pages 7-8.
Mr Tan’s statement to NSW Police dated 22 August 2019
On 22 August 2019, Mr Tan gave a statement to police at the Bankstown Police Station.
Mr Tan provided the following description of the motor accident to police:
“Yesterday the [sic] morning on 21st August 2019 I was at Fairfield Showground going to do my shopping. Around 10.40am I parked my car in the Fairfield Showground’s car park on the eastern side. I got out of my car and began to walk towards the main entrance of the showgrounds. As I began to walk onto the path where a rock is, I suddenly got hit in my legs and fell onto a bonnet of a car and then fell to the ground. I did not see any car coming and it was clear before I began to cross.”[4]
[4] Claimant's documents at page 7 at [3].
Mr Tan provided a description of the young male driver whose car had collided with him as well as a description of the car. He called 000 but the police did not turn up. As he was not feeling very well, he called for an ambulance. The ambulance arrived at the scene about 20 minutes later and he was taken to Fairfield Hospital.
Mr Tan stated that he was seen by a doctor at the hospital. He underwent an X-ray and was provided with pain relieving medication. He was discharged from hospital after about three to four hours.
NSW Police report
In evidence, there is a police report in respect of the motor accident provided to the insurer under cover of a letter from NSW Police dated 26 November 2019.[5]
[5] Claimant’s documents at pages 14-19.
The police report set out the basic particulars of the motor accident and noted that the scene was not visited by police.
The crash summary details were reported as follows:
“Around 10.40 on the 21st of August 2019 a white Toyota Corolla was travelling in the Fairfield Show Grounds car park when it collided with a 68 year old male crossing a section of the car park.”[6]
[6] Claimant’s documents at page 18.
Mr Tan’s statement dated 15 February 2021
Mr Tan provided a description of the motor accident which was generally consistent with the application form and his statement to police. He stated that, in the motor accident, he had injured his neck, upper back, lower back, right shoulder, right hand, chest, knees and left ankle. He stated that his head and face also hit the bonnet of the car and the ground in the motor accident. He also suffered anxiety and insomnia as a result of the motor accident.
Mr Tan confirmed that he was conveyed to Fairfield Hospital by ambulance following the motor accident and was discharged on the same day into the care of Dr Pukanic, general practitioner. He also consulted Dr Safwat Riad, general practitioner.
Mr Tan stated that he underwent a CT scan of his upper and lower back on 17 September 2019 and a CT scan of his neck on 18 September 2019. Dr Pukanic referred him for physiotherapy and acupuncture therapy with Mr Ken Wei of Chester Hill.
Mr Tan stated that he underwent a CT scan of his right elbow on 16 October 2019 and an
X-ray of both hands on 13 December 2019.
Mr Tan stated that he had become more and more depressed since the motor accident due to pain, not being able to get appropriate treatment and being unable to do many of the things he did before. Dr Pukanic prescribed Endep for his depression. He was taking painkillers and sleeping tablets to help him sleep.
Mr Tan stated that, initially, he experienced pain in his neck but had now developed referred pain and numbness into his arms and legs. He had also experienced pain in his right little finger since the motor accident.
Mr Tan stated that, in October 2020, he had two upper teeth removed. These teeth had become loose after the motor accident and gradually became looser and required removal. Dr Dova of Yagoona Dental Clinic had advised him that two more teeth needed to be removed. Prior to the motor accident his teeth were very good.
In this statement, Mr Tan made no reference to earning an income driving taxis at the time of the motor accident.
Mr Tan’s statement dated 28 February 2023
Mr Tan stated that he completed his high school education in Singapore. After leaving high school, he trained and worked as a chef in Singapore. He came to Australia in about 1976 when he was about 25 years of age. In Australia, he continued working as a chef, mostly, in public hospitals.
Mr Tan stated that he injured his lower back whilst working as a chef. After the injury, he returned to work on light duties until he was made redundant.
Mr Tan stated that he was currently in receipt of the Centrelink age pension to which he became eligible when he turned 65 years of age (in about 2016, prior to the motor accident).
Mr Tan stated that, after he was made redundant, he commenced working as a taxi driver in about 1999. He had hired taxis from various people over the years. He would pick up the taxi and pay a fixed fee for a 12 hour shift. As most customers pay by credit card, which would go directly to the taxi owner, at the end of each shift the owner deducted the hire fee ($135) and paid the balance due to him in cash, which was usually between $50 and $100 per day.
Mr Tan stated that he was allowed to earn up to $120 per week without having to declare it to Centrelink.
Mr Tan stated that he drove Charlie’s taxi until about 2011. He referred to Charlie as a colleague. He used to drive Charlie’s taxi at times that Charlie was not driving. He would go to Charlie’s house to pick up the taxi. At the end of his shift, he would fill up the taxi with gas, return it to Charlie and give him the cash takings, less the cost of the gas. Charlie would take out the taxi hire fee and pay him the difference.
Mr Tan stated that, in about 2011, Charlie sold his taxi to “a Chinese guy”[7] who lived in Strathfield. He could not recall the man’s name. He continued to drive the taxi on the same terms as he did with Charlie until the motor accident. He did not drive the taxi every day or every week but just whenever the taxi was available. He made sure that he earned less than $120 per week so that he would avoid the trouble of completing the necessary forms for Centrelink.
[7] Claimant's documents at page 10 at [13].
Mr Tan stated that he had not returned to driving a taxi since the motor accident because of pain and lack of sleep. He did not feel confident driving as he was taking antidepressants, sleeping tablets and pain relieving medication. He was worried that he would be a danger to his passengers. However, he did not cancel his taxi licence immediately as he was hopeful that he could get back to driving.
Mr Tan stated that, in about 2021, he was required, as a taxi driver, to submit to an eye test at the request of the relevant government authority. He was informed by the authority that he could not continue to drive a taxi unless he underwent cataract surgery. As he did not require the licence anymore, it was cancelled on 5 May 2021.
Mr Tan stated that, had he not been injured in the motor accident, he would have continued to drive a taxi for as long as he could. He was aware of many taxi drivers aged in their
mid-70s. But for the motor accident, he would have undergone cataract surgery so that he could keep driving a taxi.
Mr Tan stated that Dr Pukanic retired and that he then consulted Dr Dang Vu Tran, general practitioner. Dr Tran referred him to Dr Simon McKechnie, neurosurgeon and to Mr Thang Tran, psychologist. On 16 June 2022, he underwent a CT scan of his cervical spine. On 9 September 2022, he underwent an X-ray of his chest and right ribs. On 18 October 2022, he underwent an MRI scan of his cervical spine. On 22 November 2022, he underwent an MRI scan of his lumbar spine. At the time of his statement, he was undergoing physiotherapy.
Mr Tan’s statement dated 24 May 2024
Mr Tan stated that he continued to experience pain, discomfort and restriction in his neck, upper back, lower back, arms and legs. He also continued to feel sad and depressed. He continued to take pain relieving medication, an antidepressant and sleeping tablets.
Mr Tan stated that he had not undergone cataract surgery.
Mr Tan stated that, in about October 2017, he applied for a T011 condition on his driver licence to enable him to drive a taxi. The T011 condition was applied to his driver licence on 31 October 2017. Prior to that, he held an authorised taxi driver card.[8] On 5 July 2021, the T011 condition of his driver licence was removed.
[8] Claimant's documents at pages 169-170.
Mr Tan corrected his previous statement and stated that he had verified with Service NSW that his taxi licence was not cancelled on 5 May 2021.[9] The T011 condition was, in fact, removed on 5 July 2021.
[9] Claimant's documents at page 171.
Mr Tan’s oral evidence
Mr Tan gave oral evidence at the assessment conference on 6 November 2024.
Mr Daley had no questions for Mr Tan.
Mr Stoddart then questioned Mr Tan.
Mr Stoddart drew Mr Tan’s attention to the documents in evidence entitled “Taxi Driver’s Daily Worksheet” (the worksheet).[10] Mr Tan agreed that he would fill out the worksheet after finishing each shift as a taxi driver so that the relevant authority knew who was driving that taxi that particular day. It was a legal obligation. Every time he drove the taxi, he was required to lodge a worksheet. He agreed that his worksheets showed that he drove the taxi for eight shifts in 2017 and eight shifts in 2018. Mr Tan was shown the worksheet dated 14 September 2018,[11] he confirmed the matters recorded on the document and agreed that the last time he drove a taxi was on 14 September 2018, that is, prior to the motor accident.
[10] Claimant’s documents at pages 134-166.
[11] Claimant's documents at page 166.
It was put to Mr Tan that, on 17 March 2022, he consulted Dr Malek. Mr Tan stated that he could not recall Dr Malek.
Mr Tan agreed that he had retired at the age of 65 years.
Mr Tan agreed that Charlie had sold his taxi to a Chinese guy. The latter lived in an eight storey apartment. He had never met him. Mr Tan used to put the takings from his shift in an envelope in the taxi and his co-driver would pick it up and give it to the Chinese guy. It was not easy to say how much money he made every shift. Sometimes, Mr Tan would lose money. He had a family. Driving a taxi is not really good money but he tried his best.
Mr Tan stated that he had not undergone cataract surgery because he did not want to take the risk.
Mr Tan agreed that he had made the decision to retire before the motor accident.
Mr Stoddart finished his questioning of Mr Tan. Mr Daley then proceeded to question Mr Tan.
Mr Tan stated that the worksheets were always in the taxi. When he started the shift he started to fill out the worksheet. The worksheets were returned to the taxi owner.
The evidence of the treatment providers
Relevant pre-accident medical history
Mr Tan’s evidence was that he injured his lower back whilst working as a chef. After the injury, he returned to work on light duties until he was made redundant. He did not provide an approximate date of the work-related lower back injury or the date of his redundancy but did state that he commenced working as a taxi driver in about 1999. He told Dr Graham Vickery, psychiatrist, that he had been on a Centrelink disability pension since 2017 for a work related lower back injury in 2007. There are no medical records or reports in evidence that relate to the work-related lower back injury.
On 28 April 2014, Mr Tan underwent an X-ray and ultrasound of his right hand by Dr Lott on the referral of Dr Riad.[12] The clinical records of Dr Riad in respect of Mr Tan are not in evidence. Dr Lott noted the clinical history as a previous trauma to the right hand and a painful right hand for three weeks, the cause of which was queried. Dr Lott reported no significant bone or joint abnormality seen in the right hand (incorrectly referred to as the left hand) on X-ray. Dr Lott reported a thickening of the right fourth palmar interosseous muscle distally on ultrasound.
[12] Claimant's documents at page 100.
Relevant post-accident medical history
In evidence, there is a copy of part of an ambulance report dated 21 August 2019.[13] Mr Tan’s evidentiary documents did not include pages 2, 3 and 4 of the report. That part of the report in evidence identified Mr Tan as the patient and the case scene as being in the car park of a showground in Prairiewood. The incident was noted as a motor accident, vehicle versus pedestrian. Mr Tan’s symptoms were noted as “joint pain and knees pain”. The report confirmed that Mr Tan was conveyed by ambulance to Fairfield Hospital.
[13] Claimant's documents at page 92.
In evidence, there is a copy of the Fairfield Hospital emergency department discharge referral dated 21 August 2019.[14] Only two of the four page discharge referral were in evidence. The discharge referral identified Mr Tan as its patient who was involved in a motor accident whilst walking in a car park and struck on his right lower leg by a car that was turning slowly. Mr Tan was bent and hit the bonnet of the car and developed mild chest discomfort and dizziness. The report noted that Mr Tan was able to ambulate after the injury. No neck pain, abdominal pain or vomiting was noted. There were no ischaemic changes on electrocardiogram. A chest X-ray found no visible pneumothorax. Mr Tan was discharged on analgesia into the care of his general practitioner.
[14] Claimant's documents at pages 93-94.
In evidence, there is what purports to be a copy of Dr Pukanic’s clinical records in respect of Mr Tan.[15] The clinical records are hand written and barely legible. The first entry appears to be dated 29 August 2019 and the last entry appears to be dated 10 October 2019. The first entry refers to a motor vehicle accident on 21 August 2019. The accident description read:
“ … he was hit by a car into his legs, he fell onto the bonnet of a car … [illegible] … fell onto the ground.”[16]
[15] Claimant's documents at pages 115-117.
[16] Claimant’s documents at page 116.
In evidence, there is a certificate of capacity dated 29 August 2019 completed and signed by Dr Pukanic.[17] Dr Pukanic recorded Mr Tan’s occupation as being a pensioner. Dr Pukanic certified that Mr Tan sustained a strained cervical spine, strained thoracic spine, strained right shoulder and injuries to the right hand, chest, knees, left ankle and left foot as well as anxiety and insomnia when he was hit by a car from behind on 21 August 2019 whilst walking. The recorded plan for treatment was physiotherapy. He certified that Mr Tan had no current capacity for any work from 29 August 2019 to 29 September 2019.
[17] Claimant's documents at pages 32-34.
On 17 September 2019, Mr Tan underwent a CT scan of his thoracolumbar spine on the referral of Dr Pukanic. The CT scan of the thoracic spine demonstrated severe left-sided facet joint arthropathy at the T11/12 level and no other abnormality. The CT scan of the lumbar spine demonstrated a straightening of lumbar curvature, likely due to muscular spasm. At the L4/5 level, the disc height was mildly reduced with endplate sclerosis; there was a mild broad-based disc bulge causing mild bilateral lateral recess narrowing; and there was bilateral facet joint arthropathy. At the L5/S1 level, the disc height was reduced with endplate sclerosis; there was a broad-based disc bulge causing bilateral neuroforaminal narrowing and minimal compression on both exiting L5 nerve roots; and there was facet joint arthropathy.[18]
[18] Claimant's documents at page 101.
On 18 September 2019, Mr Tan underwent a CT scan of his cervical spine by Dr Younis, radiologist, on the referral of Dr Pukanic. The CT scan demonstrated severe left-sided facet joint arthropathy at the C2/3, C3/4, C4/5 and C5/6 levels. There was severe right-sided facet joint arthropathy at the C6/7 level. There was a right paracentral disc bulge with right facet joint arthropathy causing right-sided neural foraminal narrowing and compression on the right exiting nerve root.[19]
[19] Claimant's documents at page 102.
On 19 September 2019, Dr Pukanic referred Mr Tan to Dr Simon McKechnie, neurosurgeon.[20]
[20] Claimant's documents at page 95.
On 16 October 2019, Mr Tan underwent a CT scan of his right elbow by Dr Younis on the referral of Dr Riad. The CT scan demonstrated no fracture along the bones of the right elbow and noted osteoarthritic changes involving the radio capitellar and ulno humeral joint. There were no other abnormalities.[21]
[21] Claimant's documents at page 103.
Dr Riad’s clinical records in respect of Mr Tan were not in evidence.
On 13 December 2019, Mr Tan underwent a bilateral hand X-ray by Dr Ketheswaran, radiologist, on the referral of Dr Riad. The X-ray revealed a deformity in the neck of the right fifth metacarpal bone, probably due to previous healed old fracture. There was no acute fracture or focal bony abnormality. Bone alignment was normal. There was no degenerative or erosive arthropathy.[22]
[22] Claimant's documents at page 104.
On 2 June 2021, Dr Pukanic referred Mr Tan to Dr Blagoje Kuljic, psychiatrist.[23]
[23] Claimant's documents at page 96.
On 25 April 2021, Dr Kuljic reported to Dr Pukanic that Mr Tan had consulted him on 22 April 2021.[24] Dr Kuljic noted that Mr Tan complained of depressed mood; feeling tired all the time with low energy levels; a loss of interest in activities; insomnia; poor concentration; unstable appetite; decreased sexual drive and erectile dysfunction; and anxiety in traffic. Mr Tan expressed disappointment with the changes in his life since the motor accident. At times, he felt that life was not worth living. He denied previous psychiatric issues or treatments. Mr Tan reported that he did not feel anxious in traffic and that he still considered himself a safe driver. In respect of personal history, Dr Kuljic noted that Mr Tan immigrated to Australia from Singapore at the age of 29 years, worked as a chef and later, as a taxi driver until he retired. He had been married four times.
[24] Claimant's documents at pages 128-129.
In his report dated 25 April 2021, Dr Kuljic opined that Mr Tan presented with symptoms of major depressive disorder in the context of a recent motor accident. He noted that Mr Tan complained about chronic pains that triggered significant changes in his lifestyle and depression. He claimed having had a loss of consciousness and it was still unclear whether that contributed to a possible traumatic brain injury. Dr Kuljic recommended an MRI scan of the brain but Mr Tan refused. He advised Mr Tan that he would need further cognitive testing. Dr Kuljic advised Mr Tan to cease his current medication and start a course of mirtazapine 15mg tablets nightly. Mr Tan agreed to attend follow-up sessions if approved by the insurer.
On 17 March 2022, Mr Tan consulted Dr Assad Malek, general practitioner, of Restwell Street Medical Centre. Dr Malek took a history of the motor accident, noting that he was a pedestrian in a car park at Fairfield markets when a vehicle drove out of the car park and collided with him at a speed of about 15kmph. He was struck on the abdomen, legs and knees, fell onto the bonnet of the car, injuring his chest, and then fell to the ground, landing on both upper arms and chest. An ambulance attended the scene and he was taken to Fairfield Hospital. He was discharged after a few hours. Mr Tan complained of pain over the neck, dorsal spine, lumbar spine, bilateral elbows and knee. He also complained of insomnia. Dr Malek noted that Mr Tan was an invalid pensioner and used to work as a taxi driver, having retired at age 65 years. Following a physical examination, Dr Malek diagnosed injuries to the cervical spine, dorsal spine, lumbar spine, bilateral shoulders, anterior chest, bilateral elbows and bilateral knees. He noted that Mr Tan was currently taking Celebrex, Endep and Stilnox. [25]
[25] Claimant's documents at pages 118-119.
On 22 March 2022, Mr Tan consulted Dr Malek in respect of his injuries and was prescribed one Celebrex 200mg capsule daily and one Endep 25mg tablet nightly.[26] Dr Malek referred him to Ms Rebecca Malek for physiotherapy.[27] He also issued a certificate of capacity which recorded the incorrect date of injury and certified that Mr Tan had suffered cervical spine, thoracic spine, lumbar spine, bilateral shoulder, bilateral elbow, anterior chest, bilateral knee, and left ankle injuries as well as chronic pain, insomnia and post-traumatic stress disorder after being hit by a car whilst walking towards a shopping centre. He certified Mr Tan as having no current work capacity for any employment from 17 March 2022 to 16 April 2022.[28]
[26] Claimant's documents at page 119.
[27] Claimant's documents at page 120.
[28] Claimant's documents at pages 122-124.
On 5 April 2022, Mr Tan consulted Dr Malek complaining of pain. Dr Malek noted that physiotherapy was pending insurer approval.[29]
[29] Claimant's documents at page 119
Apart from the three attendances referred to above, there were no further clinical records relating to Mr Tan from Dr Malek’s medical practice in evidence.
On 8 June 2022, Dr Tran referred Mr Tan to Mr Thang Tran, psychologist, for an opinion and management. In his referral letter, Dr Tran recorded his diagnosis as post-traumatic stress disorder, depression, anxiety and insomnia following a motor vehicle accident.[30]
[30] Claimant's documents at pages 111-112.
On 8 June 2022, Dr Tran also referred Mr Tan to Dr Joey Le, psychiatrist, for an opinion and management. In his referral letter, Dr Tran recorded his diagnosis as post-traumatic stress disorder, depression, anxiety and insomnia following a motor vehicle accident.[31] There was no evidence that Mr Tan consulted Dr Le.
[31] Claimant's documents at pages 113-114.
On 16 June 2022, Mr Tan underwent a CT scan of his cervical spine by Dr Wong, radiologist, on the referral of Dr Tran. The CT scan demonstrated no fracture or dislocation. There were cervical spondylotic changes, more prominent at the lower levels. There was bilateral facet arthropathy resulting in narrowing of the bilateral neural foramina, most severe at the C4/5 and C5/6 levels, with possible impingement of the exiting nerve roots.[32]
[32] Claimant's documents at page 109.
On 17 June 2022, Dr Tran referred Mr Tan to Mr Phu Hoang, physiotherapist, for review and further management options. In his referral letter, Dr Tran recorded his diagnosis as whiplash neck pain following a motor vehicle accident with radiculopathy in the right upper limb and migraine headaches; severe facet joint arthropathy at the C2/3, C3/4, C4/5, C5/6 and C6/7 levels; bilateral mechanical elbow pain; mechanical low back pain with radiculopathy into the lower limbs; facet joint arthropathy and disc protrusions at the L4/5 and L5/S1 levels with neural exit narrowing compressing on the L5 nerve roots bilaterally.[33]
[33] Claimant's documents at page 110.
On 26 September 2022, Mr Tan consulted Dr Matthew Morgan, colorectal surgeon, on the referral of Dr Tran in respect of his significant back and lower abdominal pain since the motor accident. Dr Morgan noted Mr Tan’s ongoing issues relating to pain, anxiety and
post-traumatic stress disorder since the motor accident. Dr Morgan noted that Mr Tan’s main abdominal pain tended to be on the right side and was fairly general. On examination, Dr Morgan observed that his abdomen was soft with no specific lower abdominal tenderness. However, he noted that he may have a small left inguinal hernia but there was no obvious inguinal lump present. The same was evident on the right side. Dr Morgan opined that the small left inguinal hernia was unlikely to be contributing in any significant way to his pain. He did not consider that hernia repair was necessary at that time.[34]
[34] Claimant's documents at page 97.
On 29 September 2022, Mr Tan consulted Dr McKechnie on the referral of Dr Tran. In a report to Dr Tran, Dr McKechnie noted that Mr Tan was a pedestrian struck by a car some three years ago. Mr Tan complained to Dr McKechnie of chronic pain throughout his body including headaches, neck pain, back pain and intermittent pain through the legs, generally worse in the right arm and right leg. There was intermittent sensory disturbance. Mr Tan also described intermittent urinary incontinence following the motor accident. He noted that Mr Tan had tried physiotherapy and medication without success. Dr McKechnie referred to a CT scan of Mr Tan’s cervical spine and recommended that he undergo MRI scans of his cervical spine and lumbar spine to investigate his symptoms and guide treatment options.[35]
[35] Claimant's documents at page 98.
On 1 December 2022, Mr Tan consulted Dr McKechnie who provided a report to Dr Tran. Dr McKechnie reported that Mr Tan was still complaining of persistent pain, particularly in the neck and lower back. Dr McKechnie observed that the lumbar spine MRI scan demonstrated a broad-based L5/S1 disc protrusion with loss of disc height. There was bilateral S1 nerve root impingement in the lateral recesses and moderate left-sided foraminal stenosis potentially irritating the left L5 nerve root. He discussed the MRI findings and treatment options with Mr Tan. They agreed not to proceed with a cortisone injection at that time.[36] The cervical spine and lumbar spine MRI scan reports were not in evidence. However, it seems that they took place on 18 October 2022 and 20 November 2022 respectively, on the referral of Dr McKechnie.[37]
[36] Claimant's documents at page 99.
[37] Claimant's documents at page 77 at [54] and [56].
The medico-legal evidence
Mr Tan did not tender any evidence from a medico-legal expert. The insurer relied on the reports of Dr Graham Vickery, psychiatrist and Dr Frank Machart, orthopaedic surgeon.
Dr Graham Vickery: 19 December 2022
On 29 November 2022, Mr Tan consulted Dr Graham Vickery, psychiatrist, via telehealth assessment at the request of the insurer. In evidence, there is a report by Dr Vickery dated 19 December 2022. I will now refer to the relevant parts of that report.
In respect of employment history, Dr Vickery noted that Mr Tan had been on a disability pension since 2017 for a work-related lower back injury in 2007. He had been previously employed with Charlie as a taxi driver.
Mr Tan denied any medical history, psychological/psychiatric history or family psychiatric history.
In respect of current symptoms, Mr Tan reported disrupted sleep due to pain. He only has four or five hours sleep but at other times, can sleep for 12 hours. Three weeks prior to the motor accident, Mr Tan’s wife left with the children and went to reside in a refuge. He was not permitted to see them because he was told that he had been abusive. He became very depressed about this. The court had prevented him from visiting his children and he did not know if he would ever get to see them again. He stated that he needed the children back in his life in order for him to feel better. There was no psychological impairment in hygiene or grooming reported. Mr Tan reported growing tomatoes and going out to restaurants for a meal or coffee with friends. He reported forgetfulness at times.
In respect of current medication, Mr Tan was taking the antidepressant mirtazapine 15mg nightly, Celebrex and Panadol.
Dr Vickery noted that Mr Tan had undertaken psychological counselling with Mr Tran and had consulted Dr Kuljic, psychiatrist, on eight occasions for his depression.
On mental state examination, Dr Vickery reported as follows:
“Mr Tan was casually dressed and groomed. He appeared to be seated comfortably and was reasonably relaxed. There was eye contact, and he was noted to be spontaneous and co-operative.
Mr Tan’s affect range was not restricted while his behaviour and mood were appropriate to the topic being discussed. His history and presentation were consistent. He was able to relate a coherent and chronological history.
Mr Tan was frustrated and despondent when discussing the loss of his children. There was no apparent clinically significant anxiety, melancholic depression, paranoid delusional ideation or formal thought disorder. There was no apparent cognitive impairment.
There was no apparent psychiatric impairment noted in the clinical examination.[38]
[38] Insurer's documents at page 8.
Dr Vickery opined that there were no Diagnostic & Statistical Manual of Mental Disorders fifth edition text revision (DSM-5-TR) conditions that were caused or materially contributed to by the motor accident.
As to whether there were any pre-existing or inter-current diagnoses, Dr Vickery opined that there was an adjustment disorder in partial remission due to personal stressors caused by the marital separation, being accused of being abusive and not being permitted to see his children.
Dr Vickery opined that there had not been any impact on Mr Tan’s capacity for work in the past as a result of any psychological injuries caused or materially contributed to by the motor accident. Further, there was no incapacity for employment or restrictions and/or limitations in respect of Mr Tan’s future earning capacity as a result of any psychological injuries caused or materially contributed to by the motor accident.
Finally, Dr Vickery opined that there was no permanent impairment and therefore, no WPI, as a result of the motor accident.
Dr Frank Machart – 21 June 2024
On 20 June 2024, Mr Tan consulted Dr Frank Machart, orthopaedic surgeon, at the request of the insurer. In evidence, there is a report by Dr Machart dated 21 June 2024. I will now refer to the relevant parts of that report.
Dr Machart took a history that Mr Tan is a 73-year-old pensioner who sustained injuries when he was knocked over by a vehicle in a car park at the markets. Initially, he experienced pain in the abdomen and lower back and later, total body pain. He was taken to Fairfield Hospital. No fracture was diagnosed. He was discharged home on the same day. He was treated with physiotherapy and analgesics. Physiotherapy did not help. Symptoms did not resolve.
Dr Machart observed:
“It was difficult to pinpoint what he actually injured, reporting total body pain, pain everywhere causing difficulties sleeping, and difficulties doing anything strenuous. He focused perhaps more so on the lower lumbar spine, also reporting injury to the neck, both shoulders and both knees.”[39]
[39] Insurer’s documents at page 17.
In respect of current symptoms, Dr Machart noted poorly localised pain but perhaps, more significant in the areas outlined above. Mr Tan reported that the pain was constant. He was never out of pain and it was of variable intensity.
Mr Tan reported a previous lower back injury. However, he could not remember exactly when but that it resulted in substantial absence from work (a couple of years). He reported that the lower back pain now was worse than before the motor accident.
Dr Machart reported that clinical examination was difficult. He opined that Mr Tan “was essentially un-examinable, audible and visible expression of pain with every movement, even before touching skin in examination of individual joints.”[40]
[40] Insurer's documents at page 18.
On examination of Mr Tan’s cervical spine, Dr Machart observed no specific segmental tenderness and diminished movement symmetrically by half from expected normal. On examination of the thoracic spine, Dr Machart observed hypersensitivity in the upper thoracic spine without spasm, deformity or asymmetry. On examination of the lumbar spine, Dr Machart observed hypersensitivity in the paraspinal muscles, reporting pain on touching the skin; limitation of movement by half expected normal; tension signs were unexaminable; and reflexes displayed no asymmetry.
On examination of Mr Tan’s shoulders, Dr Machart observed symmetrical movement displayed in the presence of audible and physical expression of pain. There was no evidence of muscle wasting. Measured range of movements in both shoulders were 150° on flexion; 50° on extension; 150° on abduction; 30° on adduction; 80° on external rotation; and 30° on internal rotation. Dr Machart observed no point tenderness.
On examination of Mr Tan’s knees, he reported anterior knee pain. Dr Machart observed that there was no crepitus on active extension. There was full movement and no ligament laxity. Dr Machart also noted that examination was difficult because of concurrent reports of pain with every movement.
On examination of Mr Tan’s hands, Dr Machart observed full movement in the fingers and generalised swelling in small joints, consistent with arthritic changes.
Dr Machart provided the following diagnosis and opinion:
“As a result of the MVA he sustained a fracture of rib (or ribs). That fracture is united. There was soft tissue contusion and strain.
The predominant feature now is non-organic behaviour and manufacturing of symptoms. I did not find ongoing pathology in any of the areas reported to be injured, to be still present or causing disability. Such was suggested by self-reporting, and was not confirmed on objective basis.”[41]
[41] Insurer's documents at page 20.
In respect of prognosis, Dr Machart opined resolution of symptoms within three months of the motor accident.
In respect of past earning capacity, Dr Machart noted that Mr Tan was an age pensioner and opined that, if he had been working at the time of the motor accident, then there would have been a temporary incapacity for three months as a result of the injury.
In respect of future earning capacity, Dr Machart opined that because of Mr Tan’s advancing age, he would not be suitable for work in the absence of injury.
Commission medical assessment certificates
Medical Assessor Aman Suman
Mr Tan was referred to Medical Assessor Suman for the assessment of a minor injury dispute in respect of the claimed psychological injury resulting from the motor accident. Mr Tan was assessed on 26 May 2022.
In evidence, there is a certificate issued by Medical Assessor Suman dated 2 June 2022.[42] I will now refer to the relevant parts of that certificate.
[42] Claimant’s documents at pages 39-46.
Mr Tan told Medical Assessor Suman that he had previously worked as a chef and as a taxi driver, had retired 10 years ago and is in receipt of the age pension.
Mr Tan denied any psychological/psychiatric history or receiving any psychotropic treatment prior to the motor accident. He denied a family history of mental illness.
Medical Assessor Suman took a personal history, medical history, addiction history, criminal history and a history of the motor accident and symptoms and treatment thereafter. It was noted that Mr Tan’s current medications were mirtazapine 15mg nightly and zolpidem 10mg nightly.
On mental state examination, Medical Assessor Suman observed that Mr Tan was alert and oriented to his surroundings. He remained seated comfortably throughout the assessment. He did not complain of neck pain towards the end of the assessment. Speech was spontaneous with normal prosody. Objectively, he presented with mild dysphoric affect with restricted affective range and was reactive. He was distressed as he discussed the motor accident and related pain issues. He remained preoccupied with the pain and related discomfort he had experienced since the motor accident. He also remains unhappy with his personal situation related to his relationship breakup with his wife. No thought disorder, perceptual disturbances, persecutory ideation or any other forms of psychotic symptoms were elicited. No significant cognitive deficits were elicited. He displayed partial insight in terms of his mental health issues.
Medical Assessor Suman concluded that, since the motor accident, Mr Tan had experienced significant pain and discomfort. He had also been experiencing significant worries and stress related to his relationship issues with his wife. The couple had separated prior to the motor accident. He experienced significant distress immediately after the motor accident. However, there was no evidence indicative of post-traumatic stress disorder post-accident.
Medical Assessor Suman opined that Mr Tan’s symptoms satisfied the DSM-5-TR criteria of adjustment disorder with mixed anxiety and depressed mood secondary to the pain symptoms he has experienced since the motor accident and determined the same as a minor injury (now threshold injury) for the purposes of the MAI Act. He also determined that such injuries were caused by the motor accident. He opined that relationship stressors should also be considered as a substantial contributory factor to Mr Tan’s presentation. Medical Assessor Suman opined that Mr Tan’s presentation did not satisfy the criteria of major depressive disorder or any other mental illness/disorder under DSM-5-TR.
Medical Assessor David McGrath: 22 October 2022
Mr Tan was referred to Medical Assessor McGrath for the assessment of a minor injury dispute and for the assessment of the degree of permanent impairment in respect of the claimed physical injuries resulting from the motor accident. Mr Tan was assessed on 11 October 2022.
In evidence, there is a certificate issued by Medical Assessor McGrath dated 22 October 2022.[43] I will now refer to the relevant parts of that certificate.
[43] Claimant’s documents at pages 47-57.
The following injuries were referred for assessment by Medical Assessor McGrath:
(a) cervical spine – strain/whiplash, radiculopathy and compression of the right C6/7 nerve root;
(b) lumbar spine – strain, radiculopathy and compression of the L5 nerve roots;
(c) thoracic spine – strain;
(d) chest – soft tissue injury;
(e) right shoulder, arm and elbow – soft tissue injury;
(f) right hand – bone injury/deformity/strain;
(g) left hand – strain;
(h) left ankle/foot – strain;
(i) right leg – strain/contusion, and
(j) both knees – strain/contusion.
Medical Assessor McGrath took a pre-accident medical history and relevant personal details which included the following:
“Mr Tan came from Singapore around aged 25. In Singapore he graduated from high school and then became a chef. He continued this occupation in Australia mostly working at a public hospital. He had an industrial accident which led to low back pain. He went on to workers’ compensation for a couple of years before becoming redundant.
Mr Tan became a cab driver until he retired about three years ago. He was suffering from bilateral cataracts and needed surgery as required by the Road Traffic Authority. Mr Tan decided to retire.”[44]
[44] Claimant's documents at page 50 at [10].
Medical Assessor McGrath took the following history of the motor accident:
“Mr Tan was involved in an MVA on 21 August 2019 at around 11.30am. He was on a daily walk and was intending to move into a marketplace when a car emerged from a carpark and struck him.
Mr Tan states that he was hit about the chest region and then hit the bonnet of the car. He also believes he fell from the bonnet onto the road striking both his knees. He is hazy on the details as he believed he blacked out due to the shock of the accident.
Mr Tan rang an ambulance himself as the onlookers appeared to be unsympathetic. The ambulance arrived 40 minutes later and he was taken to Fairfield Hospital where he remained for the next five or six hours. The ambulance records record bilateral knee pains and document the low-speed accident. Mr Tan reconfirmed that it is his belief that he fell to the ground. At Fairfield Hospital, the discharge summary indicates that his right leg was involved in the collision. They record mild chest discomfort due to the trauma with the bonnet. They did not diagnose any spinal injuries. Their overall impression was ‘mild chest injury following a slow MVA’.
Mr Tan took a taxi home but stated he could not sleep that night. He consulted his General Practitioner the following day. That doctor has since retired and he now sees Dr Tran.”[45]
[45] Claimant's documents at pages 50-51 at [11].
Medical Assessor McGrath noted that Mr Tan claimed that he had sustained injuries to his back, neck, bilateral shoulders and bilateral knees in the motor accident. He was treated with physiotherapy and medications and underwent multiple investigations in an effort to explain his continuing pains. There had been no improvement over time.
Medical Assessor McGrath noted that Mr Tan stated that all his pains interfered with his ability to enjoy life but had not affected his previous loss of capacity for work.
On clinical examination of Mr Tan’s cervical spine, Medical Assessor McGrath observed that he had a uniformly restricted range of motion of the neck without any signs of muscle spasm or guarding. He did not have any symptoms interpretable as non-verifiable radicular complaints. Neurological examination of both arms was normal. There were normal deep tendon reflexes, power and sensation. There was no muscle atrophy.
On clinical examination of Mr Tan’s thoracic spine, Medical Assessor McGrath observed that he had a normal range of thoracic spinal movements in axial rotation and flexion/extension. There were no neurological symptoms pertaining to that area of the spine. He did have an area of tenderness over the lower lateral region of the rib cage.
On clinical examination of Mr Tan’s lumbar spine, Medical Assessor McGrath observed that he had a uniformly restricted range of motion of the lumbar spine in flexion/extension and lateral flexion. Overall, movements were close to normal. Discomfort was reported in the lower back region with end range movements. Neurological examination of the lower limbs was normal. He had normal deep tendon reflexes, power and sensation although, the reflexes were diminished slightly. There were no signs of muscle atrophy. Bilateral calf measurements were 36cm.
On clinical examination of Mr Tan’s upper extremities, Medical Assessor McGrath observed that Mr Tan had a normal range of movement of all the joints in both arms. Whilst he complained of left elbow pain, there were no local signs to distinguish an injury. He was tender over the third metacarpal of the right hand consistent with an old fracture. An examination of both shoulders revealed, essentially, a normal range of motion with virtually no discomfort. Measured range of movements in both shoulders were 180° on flexion; 50° on extension; 170° on abduction; 40° on adduction; 60° on external rotation; and 80° on internal rotation.
On clinical examination of Mr Tan’s lower extremities, Medical Assessor McGrath observed that he had a normal range of joint movements in both legs in all joints. The right knee had a normal range of motion in flexion and extension. There was some loss of axial rotation. The right knee appeared to have some slight increase in soft tissue swelling. Under load, he experienced discomfort deep in the right knee at end range flexion. Ligament integrity testing was normal. There were no signs of locking or significant ligament damage. There were no anterior crepitations under the kneecap. Both ankles had a normal range of motion without any signs of impairment.
In respect of consistency of presentation, Medical Assessor McGrath observed as follows:
“Mr Tan appeared confused about pain and disability present prior to the accident, and those arising from the accident. Clarifying questions, did not assist in removing vagueness. The medical records support a chest injury with possible aggravation to pre-existing complaints and old injuries.”[46]
[46] Claimant's documents at pages 53 at [17].
Medical Assessor McGrath referred to and reviewed the relevant documentation provided to him as well as the radiological and medical imaging brought to the assessment. He referred to a chest X-ray dated 9 September 2022 that revealed a non-displaced ninth rib fracture. The X-ray report pertaining to that chest X-ray was not in evidence.
Medical Assessor McGrath concluded that the following injuries were caused by the motor accident:
(a) chest – undisplaced fracture of the ninth rib, and
(b) both knees – contusions.
In respect of causation, Medical Assessor McGrath reasoned as follows:
“Mr Tan was involved in an MVA on 21 August 2019. He was struck by a slow-moving vehicle coming out of a carpark. It is not clear where the vehicle struck him but he did roll over the bonnet and probably to the ground. He states that both his knees were swollen after the accident. In hospital they diagnosed a right chest wall injury consistent with hitting the bonnet.
Mr Tan now complains of spinal pains but he had pre-existing lower spinal pain from an industrial accident a few years before. No spinal injuries were recorded by the hospital. A more recent chest X-ray on 9 September 2022 indicated a non-displaced fracture of the 9th rib. He is tender on current examination. It is possible he fractured this rib in the trauma. He has had multiple investigations of various pains but they do not appear to directly relate to the MVA. He has had Doppler studies of the left and right calves for suspected DVT. A plain X-ray of the right hand on 13 December 2019 indicated an old fracture of the 5th metacarpal. Other investigations have demonstrated osteoarthritis.
In summary, the evidence supports the conclusion that he sustained a chest wall injury in the accident and most probably an undisplaced fracture of the 9th rib. This is a
non-minor injury under the Act. He probably bruised his knees, which is a minor injury.”[47]
[47] Claimant's documents at page 54 at [21].
Medical Assessor McGrath also concluded that the claimed injuries to the cervical spine, lumbar spine, thoracic spine, right shoulder, right arm, right elbow, right hand, left hand, left arm, left ankle, left foot and right leg were not caused by the motor accident.
Medical Assessor McGrath assessed Mr Tan’s motor accident related injuries to the thoracic spine (rib cage ninth rib fracture) as resulting in a 0% WPI and the lower extremities (bilateral knees) as resulting in a 0% WPI. Accordingly, the final WPI was assessed at 0%.
Medical Assessor Doron Samuell
Mr Tan was referred to Medical Assessor Samuell for the assessment of the degree of permanent impairment in respect of the claimed psychological injuries resulting from the motor accident. Mr Tan was assessed on 25 October 2023.
In evidence, there is a certificate issued by Medical Assessor Samuell dated 30 October 2023.[48] I will now refer to the relevant parts of that certificate.
[48] Claimant’s documents at pages 58-64.
Medical Assessor Samuell took a psychosocial history and pre-accident history. He noted that Mr Tan had been a pensioner since the age of 65 years and had last worked as a taxi driver, although, he could not recall when he did so. Mr Tan denied a history of psychological difficulties prior to the motor accident. He was unable to advise of any family medical history. There was a previous workers compensation back injury claim. Mr Tan’s longest period of employment was as a cook at the Royal Prince Alfred Hospital.
Medical Assessor Samuell took a history of the motor accident. Mr Tan told him that he was a pedestrian in a car park. A car turned into him and he fell on the bonnet of the car and then to the ground. He was unable to say whether he had injured his head.
Medical Assessor Samuell noted the following history of Mr Tan’s symptoms and treatment since the motor accident:
“He said that he called an ambulance and was subsequently taken to Fairfield Hospital where he stayed for five to six hours. He then went home. He said that he has been treated with physiotherapy and medication. He gave inconsistent responses about whether he had been psychologically treated. Initially, he said that he had not and was then uncertain. He gave inconsistent answers as to whether he had taken any medication for the accident. He did not bring a list of his medications and could not recall the medications he was taking. He said that he has been treated for depression, pain, hypertension, insomnia, headaches and dizziness.”[49]
[49] Claimant's documents at page 60 at [10].
In respect of current symptoms, Medical Assessor Samuell noted the following:
“He said that he felt down every day and attributed that to not having seen his family for five years. He then began talking about his wife reporting him to the police and making accusations against him. He said that she reported him to the police many times and sought an AVO against him.
When I asked about his sleep, he gave vague and imprecise hours. He said that he has no more than two hours of sleep in total. He said that he worries about his life, his children and his family. He added, ‘It is very scary, it is like I have no more life to live’. He said at times, he doesn't eat for two days. His weight doesn't change much. He said that he feels down all the time and doesn't enjoy much. There was no diurnal mood variation.
His cognitive functioning was significantly abnormal. He is not suicidal.”[50]
[50] Claimant's documents at page 61 at [12].
Medical Assessor Samuell opined that it seemed probable that Mr Tan may have a concurrent neurocognitive disorder.
On mental state examination, Medical Assessor Samuell observed that at no stage did Mr Tan look depressed or disordered during the assessment. Psychomotor functioning was normal. At times, his speech was rambling and difficult to follow. He had significant difficulties with autobiographical details. He had trouble answering questions and gave vague, imprecise answers. Medical Assessor Samuell stated that he was left with the impression that Mr Tan had serious cognitive defects. Mr Tan’s affect was bright and reactive. Although he said that he was depressed, he did not look depressed.
Medical Assessor Samuell noted that Mr Tan was not working before or after the motor accident. He was not in a relationship before or after the motor accident. There were ongoing problems in gaining access to his children and there appeared to be a concurrent Family Court matter. He lives alone and prepares his own meals. Friends may help him with cooking and shopping. His physical condition impacts his ability to do housework. He is able to drive unaccompanied as long as he feels safe. He dresses, showers and toilets himself. He showers every third day.
In respect of Mr Tan’s consistency of presentation, Medical Assessor Samuell observed that there was no specific inconsistency. However, Mr Tan was unable to provide a reliable narrative due to cognitive deficits.
Medical Assessor Samuell opined that, at the time of the assessment, Mr Tan’s dominant presentation was that of a provisionally major neurocognitive disorder. The diagnosis was provisional because there had been insufficient neuropsychological testing to confirm it. Significant cognitive deficits were evident, for which there was limited insight by Mr Tan. Although Mr Tan stated that he feels down all the time, the balance of his symptoms were more likely attributable to the neurocognitive disorder than a depressive disorder. Mr Tan’s mental state examination was not consistent with a pseudodementia of depression.
Medical Assessor Samuell noted that Mr Tan’s treating doctor diagnosed depression at an earlier stage and that there was also a diagnosis of an adjustment disorder made by Medical Assessor Suman. At interview, in addition to the absence of depression, there was no ongoing stressor or sequelae that could account for an adjustment disorder.
Medical Assessor Samuell opined that his provisional diagnosis of major neurocognitive disorder was unrelated to the motor accident. He accepted that the adjustment disorder diagnosed by Medical Assessor Suman was caused by the motor accident but had resolved.
Review of Medical Assessor David McGrath’s assessment
Mr Tan sought a review of Medical Assessor McGrath’s medical assessment in accordance with s 7.26 of the MAI Act (the Review) and it was referred to a Review Panel (the Panel). The Panel included Member Ray Plibersek, Medical Assessor David Gorman and Medical Assessor Michael Couch.
Mr Tan was examined by Medical Assessor Gorman on behalf of the Panel at the Commission’s medical suites on 19 April 2023.
In evidence, there is a certificate issued by the Panel dated 8 August 2023.[51] I will now refer to the relevant parts of that certificate.
[51] Claimant’s documents at pages
The Panel reviewed the documentary evidence provided to it.
The Panel referred to an X-ray of Mr Tan’s chest dated 9 September 2022 performed by Dr Wong that demonstrated an undisplaced fracture of the ninth rib. The report relating to that X-ray was not in evidence in this matter.
The Panel took a pre-accident medical history that included Mr Tan’s industrial accident that led to low back pain. He went on workers compensation for a couple of years before becoming redundant. He underwent some physiotherapy and the pain in his lower back settled. Thereafter, he became a taxi driver. The pain in his lower back was aggravated by the motor accident. As he was suffering from bilateral cataracts, the Road Traffic Authority required him to undergo surgery in order to continue driving taxis. Mr Tan then decided to retire about three years ago. He has suffered from high blood pressure and perennial asthma for a number of years. He had been in previous motor accidents without reported injury.
The Panel took a history of the motor accident and the symptoms and treatment that followed thereafter that was similar to that taken by Medical Assessor McGrath.
The Panel noted Mr Tan’s current symptoms included lower back pain radiating down both legs; bilateral knee pain; neck pain; right hand pain between the third and fourth metacarpals and between the fourth and fifth metacarpals; and episodic right elbow pain.
The Panel noted that Mr Tan stated that he did not have any problems cooking and shopping. However, he had become depressed because of his condition. He only sleeps four to five hours per night.
The Panel noted that Mr Tan medicated with mirtazapine for his depressed mood; Celebrex for his musculoskeletal pains; Stilnox for sleep; and candesartan for hypertension.
On clinical examination of Mr Tan’s cervical spine, the Panel observed a uniformly unrestricted range of motion of the neck to two thirds normal in all planes without any signs of muscle spasm or guarding. There were no symptoms interpretable as non-verifiable radicular complaints. Neurological examination of both arms was normal. There were normal deep tendon reflexes, power and sensation. There was no muscle atrophy.
On clinical examination of Mr Tan’s thoracic spine, the Panel observed a normal range of thoracic spinal movements in axial rotation and flexion/extension. There were no neurological symptoms pertaining to the thoracic spine and there was no tenderness.
On clinical examination of Mr Tan’s lumbar spine, the Panel observed no restriction in range of motion of the lumbar spine in flexion/extension and lateral flexion. Fingertips reached 10cm from the floor. Overall, movements were normal in all planes. Discomfort was reported in the lower back region with end range of movements. Neurological examination of the lower limbs was normal, in that, Mr Tan had normal deep tendon reflexes, power and sensation. However, the reflexes were diminished slightly. There were no signs of muscle atrophy.
On clinical examination of Mr Tan’s upper extremities, the Panel observed a normal range of movement of all of the joints in both arms. There were complaints of intermittent right elbow pain but no local signs to distinguish an injury. There was no tenderness and there were no restrictions in range of motion. There was tenderness over the third and fourth and between the fourth and fifth metacarpals of the right hand, the cause of which was uncertain. Both shoulders were examined and there was, essentially, a normal range of motion of both shoulders with no discomfort. He could easily reach the occiput bilaterally and could reach the spinous process of T9 bilaterally. Measured range of movements in both shoulders were 180° on flexion; 50° on extension; 180° on abduction; 50° on adduction; 80° on external rotation; and 80° on internal rotation.
On clinical examination of Mr Tan’s lower extremities, the Panel observed a normal range of joint movements in both legs in all joints. The right knee had a normal range of motion in flexion and extension. The range of motion in both knees was from 0° to 130°. Axial rotation of the right and left sides of the tibia on the femur was equal and normal. There was no swelling in either knee. Ligament integrity testing was normal. There were no signs of locking or significant ligament damage. There were no anterior crepitations under the kneecap. Both ankles had a normal range of motion without any signs of impairment.
On clinical examination of Mr Tan’s chest, the Panel observed no tenderness. There was normal air entry bilaterally (no added sounds).
In respect of Mr Tan’s consistency of presentation, the Panel observed him to be cooperative and consistent.
In its statement of reasons, after providing its reasons in respect of causation, the Panel concluded that the following injuries were caused by the motor accident:
(a) chest – undisplaced fracture of the ninth rib;
(b) both knees – contusion;
(c) cervical spine – strain/whiplash;
(d) lumbar spine – strain;
(e) thoracic spine – strain;
(f) right shoulder, arm and elbow – soft tissue injury, and
(g) right hand – strain.
In respect of each of the above listed injuries, the Panel found no assessable permanent impairment and accordingly, assessed a 0% WPI.
In its certificate attaching its statement of reasons, the Panel, amongst other things, certified as follows:
“2. The Panel affirms the certificate of Medical Assessor McGrath regarding the assessment of the injuries caused by the motor accident which give rise to a permanent impairment of 0% which is not greater than 10% for the chest for undisplaced fracture of the 9th rib and also for both knees for contusion.”[52]
[52] Claimant's documents at page 65.
In its certificate, the Panel did not refer to its findings of injury to the cervical spine, lumbar spine, thoracic spine, right shoulder, right arm, right elbow and right hand.
Submissions
Insurer’s submissions
The insurer’s submissions on the nature and extent of Mr Tan’s injuries, disabilities and incapacity were very brief.
The insurer relied on the evidence of Dr Vickery and Dr Machart.
The insurer submitted that the Commission could not be satisfied that the assumptions made by Mr Tan in his submissions had any credible foundation in the evidence before the Commission.
Mr Tan’s submissions
Mr Tan’s submissions on the nature and extent of his injuries, disabilities and incapacity were similarly very brief.
On 21 August 2019, Mr Tan was walking in a car park when he was struck by the insured’s vehicle. He hit the bonnet of the insured’s vehicle and then fell onto the ground.
As a result of the collision, Mr Tan sustained injuries to his chest, knees, neck, upper back, lower back, right shoulder, right arm, right elbow and right hand.
As a result of the injuries sustained in the motor accident, Mr Tan had not been able to return to his pre-injury employment as a taxi driver. He has difficulties sitting for prolonged periods; driving difficulties with turning and twisting his neck to check for other vehicles and his surroundings when driving; difficulties with bending, lifting and carrying luggage; difficulties sleeping due to pain; and difficulties concentrating and remaining alert when driving due to poor sleep.
Consideration and findings
The onus of establishing injury falls on Mr Tan and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction.
I have concerns about the reliability of Mr Tan’s evidence. In my detailed review of the evidence, there were obvious inconsistencies in Mr Tan’s documentary evidence and I do not intend to repeat those inconsistencies in detail. Suffice to say that the inconsistencies related to the description/mechanism of the motor accident; his income earning activities at the time of the motor accident; the reporting of injuries and symptoms to medical practitioners and the extent of his pre-existing conditions.
In his oral evidence at the assessment conference, I found that Mr Tan appeared to be confused by some of the questions put to him. On a number of occasions, his answers were not responsive to the question being asked. On other occasions, his response was that he did not remember. I cannot speculate about the reasons for such presentation but I am firmly of the view that Mr Tan was doing his best to respond and that he was not being deliberately evasive or misleading. Accordingly, I have treated his evidence with caution.
The insurer did not dispute liability for the motor accident. However, there were varying descriptions of the motor accident recorded in the documentary evidence.
That part of the ambulance report dated 21 August 2019 that was in evidence provided no description of the motor accident but did record joint pain and pain in the knees. That part of the discharge referral dated 21 August 2019 issued by Fairfield Hospital that was in evidence took a history that Mr Tan was walking in a car park and was struck on his right lower leg by a car that was turning slowly. Mr Tan was bent and hit the bonnet of the car and developed mild chest discomfort and dizziness. Mr Tan’s statement to NSW Police the day after the motor accident stated that he suddenly got hit on his legs by a car, fell onto its bonnet and then fell to the ground. On 29 August 2019, Dr Pukanic recorded in his clinical notes that Mr Tan was hit on his legs by a car, fell onto the bonnet of the car and fell onto the ground.
In his report dated 25 April 2021, Dr Kuljic did not record a description of the motor accident. The entry in Dr Malek’s clinical records dated 17 March 2022 described the motor accident as occurring in the Fairfield Market car park when a vehicle travelling at about 15kmph hit Mr Tan in the abdomen, legs and knees causing him to fall on the car bonnet, injure his chest and fall to the ground landing on both upper arms and chest. On 25 May 2022, Mr Tan told Medical Assessor Suman that a car had hit him around the waist and he had fallen. On 26 September 2022, Associate Professor Morgan recorded that Mr Tan was involved in a car park accident where, as a pedestrian, he was hit by a car. On 29 September 2022, Dr McKechnie recorded that Mr Tan was a pedestrian that had been struck by a car.
On 29 November 2022, Dr Vickery took a history that Mr Tan was struck by a car that turned right in front of him, causing him to hit its bonnet and fall back onto the road. On 20 June 2024, Dr Machart recorded that Mr Tan had been knocked over by a car in a car park.
On 11 October 2022, Mr Tan told Medical Assessor McGrath that he was hit about the chest region by a car in the car park and then hit the bonnet of the car. He also believed that he fell from the bonnet onto the road striking both his knees. He was hazy on the details as he believed he blacked out due to the shock of the accident. On 8 August 2023, Mr Tan told the Medical Review Panel that a car struck him in the chest region, he then hit the bonnet of the car and he believed that he then fell off onto the road striking both knees. On 25 October 2023, Mr Tan told Medical Assessor Samuell that he was a pedestrian in a car park when a car turned into him and he fell onto the bonnet of the car and then to the ground.
I accept Mr Tan’s evidence that he was in shock after being hit by the car in the car park. In such circumstances, it is not surprising that he failed to add that he fell off the bonnet of the car onto the ground to the ambulance paramedics or Fairfield Hospital nursing and medical staff. However, he did so in the statement taken by NSW Police the following day and in his first consultation with Dr Pukanic about a week later.
On the balance of probabilities, I find that Mr Tan was struck by the car on one or both legs causing him to land on its bonnet and then fall to the ground.
I now turn to the physical injuries that Mr Tan claimed were caused by the motor accident. In his written submissions Mr Tan claimed that the motor accident caused injuries to his chest, bilateral knees, neck, upper back, low back, right shoulder, right arm, right elbow and right hand.
That part of the ambulance report dated 21 August 2019 that was in evidence recorded Mr Tan’s injuries as joint pain and pain in the knees.
That part of the Fairfield Hospital discharge referral dated 21 August 2019 that was in evidence recorded Mr Tan’s injuries as mild chest discomfort and dizziness.
On 29 August 2019, Dr Pukanic recorded Mr Tan’s injuries in his clinical notes and in a certificate of capacity as cervical spine strain, thoracic spine strain, right shoulder, right hand, chest, bilateral knees, left ankle and left foot injuries. There was no reference to the lower back.
In his claim form dated 2 September 2019, Mr Tan stated that he had sustained injuries to his neck, chest, arms, hands, right shoulder, bilateral knees, left ankle, left foot and shock caused by the motor accident. There was no reference to the lower back.
Dr McKechnie focused his investigations on Mr Tan’s cervical spine and lumbar spine symptoms and did not provide an opinion on causation.
On 22 October 2022, Medical Assessor McGrath opined that Mr Tan only sustained injuries to his bilateral knees (contusions) and an undisplaced fracture of the ninth rib caused by the motor accident.
On 8 August 2023, the Medical Review Panel determined that the injuries suffered by Mr Tan caused by the motor accident were contusions to both knees; cervical spine strain/whiplash; thoracic spine strain; lumbar spine strain; soft tissue injuries to the right shoulder, right arm and right elbow; a right hand strain; and an undisplaced fracture of the ninth rib.
On 21 June 2024, Dr Machart opined that Mr Tan suffered a rib fracture and soft tissue contusions caused by the motor accident. He did not specify the locations of the soft tissue contusions but it appeared from the history section of his report that he was likely referring to the low lumbar spine, neck, bilateral shoulders and bilateral knees. He did not find any ongoing pathology in any of the areas reported to be injured. Further, he opined that the prognosis for Mr Tan’s symptoms was for resolution within three months of the motor accident. He also opined that the predominant feature at the time of his examination was non-organic behaviour and manufacturing of symptoms.
I now turn to the psychological/psychiatric injuries that Mr Tan claimed were caused by the motor accident.
On 25 April 2021, Dr Kuljic opined that Mr Tan had presented with symptoms of major depressive disorder in the context of the motor accident.
On 2 June 2022, Medical Assessor Suman determined that Mr Tan was suffering from an adjustment disorder with mixed anxiety and depressed mood, secondary to pain issues, caused by the motor accident.
On 19 December 2022, Dr Vickery opined that there was no psychiatric injury due to the motor accident. However, there was an adjustment disorder in partial remission due to personal stressors regarding Mr Tan’s marital separation, being accused of being abusive and not being allowed to see his children.
On 30 October 2023, Medical Assessor Samuell determined that Mr Tan suffered an adjustment disorder caused by the motor accident that had since resolved.
Considering Mr Tan’s presentation at the assessment conference it is unsurprising that the medical opinions referred to above were so diverse.
I prefer the conclusions reached by the Medical Review Panel on 8 August 2023 in respect of the physical injuries caused by the motor accident over the other specialist medical evidence. The Medical Review Panel had the benefit of two medical specialists in assessing Mr Tan and reviewing the medical evidence before it.
An X-ray of Mr Tan’s chest on 9 September 2022 demonstrated a non-displaced fracture of the ninth rib. I am satisfied and find that such fracture was caused by the motor accident.
In respect of Mr Tan’s cervical spine, medical imaging of the cervical spine revealed long standing asymptomatic degenerative conditions. I am satisfied and find that Mr Tan suffered a soft tissue injury to the cervical spine caused by the motor accident.
In respect of Mr Tan’s thoracic spine, medical imaging of the thoracic spine revealed long standing asymptomatic degenerative conditions. I am satisfied and find that Mr Tan suffered a soft tissue injury to the thoracic spine caused by the motor accident.
In respect of Mr Tan’s lumbar spine, his evidence was that he had injured his back at work many years ago and that the motor accident had worsened the pain in his lower back. Medical imaging of the lumbar spine revealed long standing degenerative conditions. I am satisfied and find that his lumbar spine was symptomatic from time to time prior to the motor accident and that he suffered a soft tissue injury to the lumbar spine caused by the motor accident.
In respect of Mr Tan’s bilateral knees, there were no X-rays or other medical imaging of the knees. I am satisfied and find that Mr Tan suffered soft tissue injuries to his bilateral knees caused by the motor accident.
In respect of Mr Tan’s right shoulder, there were no X-rays or other medical imaging of the right shoulder. I am satisfied and find that Mr Tan suffered a soft tissue injury to his right shoulder caused by the motor accident.
A CT scan of Mr Tan’s right elbow dated 16 October 2019 demonstrated no fracture along the bones of the right elbow and noted osteoarthritic changes involving the radio capitellar and ulno humeral joint but no other abnormalities. I am satisfied and find that Mr Tan suffered a soft tissue injury to the right elbow caused by the motor accident.
On 28 April 2014, Mr Tan underwent an X-ray and ultrasound of his right hand in respect of a previous trauma which demonstrated no significant bone or joint abnormality seen in the right hand on X-ray and a thickening of the right fourth palmar interosseous muscle distally on ultrasound. On 13 December 2019, Mr Tan underwent a bilateral hand X-ray which demonstrated a deformity in the neck of the right fifth metacarpal bone, probably due to previous healed old fracture. I am not satisfied that the said healed old fracture was caused by the motor accident. However, I am satisfied and find that Mr Tan suffered a soft tissue injury to the right hand in the motor accident.
In respect of Mr Tan’s psychological/psychiatric condition, I have considered the opinions of Dr Kuljic, Medical Assessor Suman and Medical Assessor Samuell. Both Dr Kuljic and Medical Assessor Samuell opined that Mr Tan required cognitive testing. However, Medical Assessor Suman did not raise this issue. On the evidence before me, Mr Tan has not undergone any cognitive or neuropsychological testing. In such circumstances, I prefer the opinion of Medical Assessor Suman, who was unable to elicit any significant cognitive deficits and was able to make a firm diagnosis.
I am satisfied and find that Mr Tan suffered an adjustment disorder with mixed anxiety and depressed mood secondary to the pain symptoms experienced in the motor accident.
In summary, I am satisfied and find that, on the balance of probabilities, Mr Tan suffered the following physical and psychological/psychiatric injuries caused by the motor accident:
(a) an undisplaced fracture of the ninth rib;
(b) soft tissue injury to the cervical spine;
(c) soft tissue injury to the thoracic spine;
(d) soft tissue injury to the lumbar spine;
(e) soft tissue injuries to the bilateral knees;
(f) soft tissue injury to the right shoulder;
(g) soft tissue injury to the right elbow;
(h) soft tissue injury to the right hand, and
(i) an adjustment disorder with mixed anxiety and depressed mood secondary to the motor accident related pain symptoms.
I am satisfied and find that Mr Tan suffered the physical and psychological/psychiatric injuries listed above were caused by the motor accident for the following reasons:
(a) the onset of physical symptoms within about a week of the motor accident;
(b) the gradual onset of psychological/psychiatric symptoms following the motor accident;
(c) the absence of previous symptoms immediately prior to the motor accident and, in the case of the lumbar spine and right hand in which there had been
pre-existing conditions, the absence of any significant symptoms immediately prior to the motor accident;(d) the mechanism of the motor accident was consistent with the known pathology;
(e) an unbroken chain of causation with continuous symptoms, and
(f) an absence of lifestyle factors or other causative factors but acknowledging that the marital break-up and its consequences had some effect on the psychological/psychiatric symptoms.
Accepting the complaints in his statement dated 24 May 2024, I find that Mr Tan suffers the following ongoing pain, symptoms, difficulties, disabilities and restrictions as a result of the injuries he sustained in the motor accident:
(a) pain, discomfort and restriction in the cervical spine;
(b) pain and discomfort in the thoracic spine;
(c) pain, discomfort and restriction in the lumbar spine;
(d) pain, discomfort and restriction in the bilateral knees;
(e) pain and discomfort in the right shoulder;
(f) episodic pain and discomfort in the right elbow;
(g) pain and discomfort in the right hand;
(h) anxiety;
(i) insomnia, and
(j) feelings of sadness and depression.
DAMAGES FOR PAST AND FUTURE LOSS OF EARNINGS OR LOSS OF EARNING CAPACITY
The legislation and legal principles
In cases such as Medlin v State Government Insurance Commission[53] and Husher v Husher,[54] the High Court of Australia confirmed that the fundamental questions to be determined in a case such as this are whether Mr Tan has sustained a loss or diminution in his earning capacity and if so, whether that loss or diminution will result in economic loss.
[53] Medlin v State Government Insurance Commission [1995] HCA 5.
[54] Husher v Husher [1999] HCA 47.
Section 4.5(1)(a) of the MAI Act provides that damages may be awarded for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity.
In calculating any economic loss into the future, I must have regard to the provisions of s 4.7 of the MAI Act.
Section 4.7(1) of the MAI Act provides that damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based, accorded with the claimant’s most likely future circumstances but for the injury.
Section 4.7(2) of the MAI Act provides that the amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
Section 4.7(3) of the MAI Act provides that if an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
Section 4.9(1) of the MAI Act provides that where an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referrable to deprivation or impairment of earning capacity, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate. Section 4.9(2) of the MAI Act prescribes a discount rate of 5%.
Section 4.7 of the MAI Act does not preclude the awarding of a buffer for future economic loss. The occasion for a buffer in accordance with the principles enunciated in Penrith City Council v Parks (Parks)[55] is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine.
Submissions
[55] Penrith City Council v Parks [2004] NSWCA 201.
Insurer’s submissions
The Commission cannot be satisfied that the assumptions that Mr Tan’s legal representatives made in their written submissions have any credible foundation in the evidence before it. There was not one piece of medical evidence pointed to in the submissions that supported Mr Tan being unable to work as a taxi driver due to the motor accident.
The reliability of Mr Tan’s recollection as to his work as a taxi driver and his psychiatric condition at the time of the motor accident is questionable. He provided histories before and after the motor accident that were inconsistent with the version now before the Commission. He told Medical Assessor Suman that he had retired 10 years ago and that he was in receipt of the age pension. He told Medical Assessor McGrath that he had retired prior to the motor accident due to cataracts. He told Medical Assessor Samuell that he had not worked before or after the motor accident. He told the Review Panel that he had retired prior to the motor accident due to cataracts. He told his treating general practitioner that he had retired prior to the accident at age 65 and that he used to work as a taxi driver. He told Dr Vickery that he had been in receipt of a disability support pension since 2017 due to a low back injury sustained in 2007 and that, prior to this, he had worked as a taxi driver.
In his statement, Mr Tan said that he would drive a taxi when a “Chinese guy” who owned a taxi was not driving was inconsistent with the multiple histories referred to above and it was telling that no statement was provided by the “Chinese guy”.
Mr Tan provided worksheets that are a legislative requirement for working as a taxi driver and those worksheets did not go beyond 2018.
In Mr Tan’s statement dated 15 February 2021, he did not mention working as a taxi driver. That was consistent with the other histories provided and referred to above that he had already retired.
On 25 April 2021, Dr Kuljic reported that Mr Tan did not feel anxious in traffic and that he felt he was a safe driver. Such history conflicted with what Mr Tan said in his statement dated 28 February 2023.[56]
[56] Claimant's documents at page 11 at [24].
The Commission cannot be satisfied that Mr Tan was working as a taxi driver or that he had the capacity to work as a taxi driver at the time of the motor accident. The Commission cannot be satisfied that Mr Tan is incapacitated to work as a taxi driver as there is no medical evidence to support such a finding. The only meaningful evidence addressing capacity was that of Dr Machart who said that Mr Tan would only have been incapacitated for three months.
At the assessment conference, Mr Stoddart provided further oral submissions on behalf of the insurer as summarised below.
Mr Tan had done his best in giving his oral evidence. The motor accident occurred in 2019. The insurer submitted that Mr Tan had been honest in his claim form and honest with his general practitioner, the medical assessors and the medical specialists qualified by the insurer when he said that he had retired by the time of the motor accident.
The Commission could not be satisfied that Mr Tan earned $120 per week given that he had to re-gas the taxi and that he did not know how much it was costing him to take the taxi out and that, sometimes, he took the taxi out and it cost him money.
In Mr Tan’s oral evidence, he said that he is afraid to undergo cataract surgery and so, the cause of any future incapacity is not related to the motor accident. It is related to his decision not to risk undergoing cataract surgery.
Mr Tan’s claim is de minimis. He is not entitled to damages.
There was no evidence of incapacity to drive a taxi as a result of the motor accident. The incapacity to drive a taxi arises from an unrelated condition, namely, cataracts. Accordingly, the Commission cannot award damages for past or future economic loss in this case.
Mr Tan has failed to satisfy the Commission, as required by s 4.7(1) of the MAI Act, of the assumptions required to make any award of economic loss.
Mr Tan’s submissions
Mr Tan injured his lower back whilst working as a chef but was able to return to work on light duties until he was made redundant. From about 1999, he commenced work as a taxi driver.
Mr Tan turned 65 in 2016 but continued working beyond age 65. He held an authorised taxi driver card which permitted him to drive taxis. When he drove taxis, he completed taxi driver daily worksheets. On 31 October 2017, because of a change in regulations, he applied for a T011 condition on his driver’s licence.
At the time of the motor accident, Mr Tan was earning about $120 net per week as a taxi driver. As a result of the motor accident, he has been unable to return to work as a taxi driver. On 5 July 2021, the T011 condition on his driver’s licence was removed because he had cataracts.
But for the motor accident, Mr Tan would likely have continued working as a taxi driver to, at least, the age of 80 years to supplement his age pension. Whilst his T011 condition was removed on 5 July 2021, had he not had the motor accident, he would have undergone cataract removal surgery, which would have allowed him to keep the T011 condition and allow him to continue driving a taxi.
Mr Tan has difficulties sitting for prolonged periods when driving. He has difficulties with turning and twisting his neck to check for other vehicles and his surroundings when driving. He has difficulties bending, lifting and carrying luggage. He has difficulty sleeping due to pain and difficulties concentrating and remaining alert when driving due to poor sleep.
Mr Tan’s injuries caused by the motor accident have incapacitated him for unskilled factory labouring or process work and also for any other employment reasonably available to him on the open labour market. Effectively, he is totally incapacitated for all work from the date of the motor accident and continuing.
In his legal representatives’ written submissions, Mr Tan claimed $120 net per week from 21 August 2019 to date by way of past economic loss and claimed $120 net per week to the age of 80 years.
At the assessment conference, Mr Daley provided further oral submissions on behalf of Mr Tan as summarised below.
Mr Tan kept his taxi driver’s licence even after the motor accident. He did not surrender it. In 2021, he went to renew the licence and submitted himself to tests conducted by the relevant authority. This suggested that he was still desirous of keeping the option of a taxi driver’s licence open, even at his age. If he had formed the view that he was, in fact, retired in the sense that he was never going to do any work at all ever again, he would have just handed his licence in and not bothered to submit to testing.
Mr Tan’s evidence and the histories that he gave to the various doctors were “all over the shop”. The Commission should infer from Mr Tan’s presentation at the assessment conference that there was confusion when he was answering questions. Many of the questions put to him at the assessment conference were very straightforward questions that could have given or set up a very straightforward answer. However, in many cases, he was not responsive to the questions being asked. It is not clear what the problem was. It was unclear as to whether it was due to his emotional state or his language abilities. It was clear that he did not necessarily understand what he was being asked. This was equally applicable in the context of medical consultations.
There is no doubt that Mr Tan retired quite some time ago in the sense that he had stopped driving full-time and started accepting the age pension. However, Mr Tan’s case is that he did not retire in the complete sense and that he would supplement his age pension by working up to the stated limit of about $120 per week. That was not inconsistent with him telling people that he had retired. The taxi driving was very casual work and he wanted to make sure that he did not earn more than he was allowed to, being $120 per week. He did that very casual work right up until the time of the motor accident.
Mr Tan was driving taxis in 2017 and 2018 as demonstrated on the worksheets in evidence. He was desirous, at least as at July 2021, of having his taxi driver’s licence renewed, which is why he submitted to the tests required by the relevant authority.
In respect of the insurer’s submission that in his statement dated 15 February 2021, Mr Tan did not mention working as a taxi driver, there was no need to go into the economic issues at that point because the statement was prepared for the purposes of the minor injury dispute between the parties.
Another example of the confusion in the evidence was when, in oral evidence, Mr Tan accepted that he had driven since 2018 but later said that he had not driven a taxi since the motor accident. The two answers cannot stand together. The one that is most consistent with Mr Tan’s evidence is that he gave up taxi driving after the motor accident.
The practice in relation to the worksheets was very slipshod. Mr Tan would leave them in the taxi. The taxi owner was supposed to lodge them. Mr Tan did not say that he lodged them. It is possible that the taxi owner was not lodging them. However, Mr Tan says that he was driving in the period leading up to the motor accident.
Mr Tan has a constellation of symptoms referred to in his evidence and the medical reports that, if accepted, leaves it open to the Commission to infer an incapacity for driving a taxi, even in the absence of a doctor saying that he cannot drive a taxi.
On the certificates of capacity, the Commission would find that Mr Tan was unfit for driving a taxi as from the date of the motor accident.
Even if Mr Tan’s primary claim of an ongoing entitlement of $120 per week is not accepted, it would not prevent the Commission from forming a view that, from time to time, he might have taken out taxi shifts to supplement his income. That was taken away from him by the injuries and disabilities caused by the motor accident. In those circumstances, a modest buffer would be appropriate for past and future economic loss.
There was no upside in Mr Tan proceeding with cataract surgery in a situation where he was unable to get back to driving because of his motor accident related injuries and disabilities.
Insurer’s submissions in reply
Mr Tan’s submissions did not deal with his claim form. Mr Tan completed the claim form with the assistance of an accomplished personal injury lawyer. When on the claim form he was asked whether he was working, he responded in the negative. The insurer does not suggest that Mr Tan has misled the Commission. He has done the best he can.
Mr Tan agreed that he had last driven a taxi in 2018. He also agreed that the worksheets were important documents that had to be lodged under the relevant legislation. He agreed that he had obtained the worksheets from Service NSW. Based on the worksheets, he drove eight taxi shifts in 2017 and another eight shifts in 2018. On those facts, he had not worked for nine months prior to the motor accident. The Commission is left in an impossible position in terms of calculating what he might have earned as a taxi driver. There is no documentary proof of what he did earn. Further, he says that, sometimes, he did a taxi shift and lost money.
In those circumstances, it is not open to the Commission to award a buffer in this case.
One of the unusual features in this matter is that there was no medico-legal evidence served in Mr Tan’s case. The inference should be drawn that the evidence has been obtained and not served. The insurer’s evidence does not establish incapacity.
There is a possibility that Mr Tan may have driven a taxi at some point. However, what he would have earned is imponderable on the evidence before the Commission.
In terms of the psychiatric aspect of Mr Tan’s claim, he told his treating psychiatrist and the Commission that he is a safe driver and that he does not feel anxious driving.
This is a case in which the Commission cannot award economic loss on the evidence before it.
Consideration and findings
Mr Tan bears the onus of adducing evidence demonstrating that he has suffered past and/or future economic loss caused by the motor accident. When considering such evidence I must apply the legal principles and legislation referred to above.
The evidence was that Mr Tan arrived in Australia in about 1976 and worked mostly as a chef. He suffered a back injury at work and continued working thereafter on light duties until he was made redundant. In about 1999, he commenced working as a taxi driver. He had hired taxis from various people over the years. He would pick up the taxi and pay a fixed fee for a 12 hour shift.
In evidence, is a card that states Mr Tan was an authorised taxi driver in NSW in the Sydney metropolitan and country areas. The authorisation expired on 2 May 2018.
In evidence, is a document entitled “Confirmation of Licence Status” issued by Service NSW on 2 April 2024.[57] The document recorded that Mr Tan was issued with a driver’s licence on 8 July 1982 and that he applied for a T011 condition on his licence on 31 October 2017, which was removed on 5 July 2021 (because of his cataract condition).
[57] Claimant’s documents at page 171.
Mr Tan’s evidence was that he went on a Centrelink age pension when he turned 65 (in 2016) and he was allowed to earn up to $120 per week without having to declare it to Centrelink. Whilst there is no issue that Mr Tan retired at age 65, it does not mean he could not have worked from time to time thereafter.
In evidence, are a series of documents entitled “Taxi Driver’s Daily Worksheet”.[58] . Mr Tan’s name appears as the driver on each worksheet. At the top of the first page of each worksheet are the following words:
“It is an offence under the Passenger Transport (Taxi-Cab Services) Regulation 2001 for a driver not to complete this side of the worksheet.”
[58] Claimant’s documents at pages 134-166.
At the bottom of the first page of each worksheet are the following words:
“This worksheet must be produced on demand by an authorised officer, and must be returned to the operator of the taxi-cab at the end of the driving shift concerned.”
Mr Tan’s evidence was that he applied for and obtained the worksheets in evidence from Service NSW. There are 17 of Mr Tan’s worksheets in evidence. The first worksheet in evidence noted Mr Tan’s shift on 24 June 2017 commencing at 7.00am and finishing at 2.00pm. The last worksheet in evidence noted Mr Tan’s shift on 14 September 2018 commencing at 7.00am and finishing at 2.00pm. Eight worksheets were for the 2017 calendar year (eight shifts) and nine worksheets were for the 2018 calendar year (nine shifts). The shifts occurred on 24 June 2017; 25 August 2017; 26 October 2017; 30 October 2017; 2 November 2017; 20 November 2017; 23 November 2017; 25 November 2017; 8 March 2018; 9 March 2018; 10 March 2018; 11 March 2018; 16 March 2018; 17 March 2018; 11 June 2018; 9 July 2018; and 14 September 2018. None of the worksheets recorded the takings or expenses for the shift, nor was it a regulatory requirement to do so, as stated on the worksheet.
Based on the worksheets, Mr Tan’s last shift driving a taxi was on 14 September 2018, some 11 months prior to the motor accident. There were no other worksheets in evidence.
Mr Tan gave conflicting evidence about his income earning activities at the time of the motor accident.
In his application form, Mr Tan stated that he had not been away from work as a result of the motor accident. Further, Mr Tan made no reference to earning an income driving taxis at the time of the motor accident in the application form.
In his statement dated 15 February 2021, Mr Tan made no reference to earning an income driving taxis at the time of the motor accident. I acknowledge Mr Daley’s submission that there was no need to go into the economic issues at that point because the statement was prepared for the purposes of the minor injury dispute between the parties.
In his statement dated 28 February 2023, Mr Tan stated that he had not returned to driving a taxi since the motor accident because of pain and lack of sleep. He did not feel confident driving as he was taking antidepressants, sleeping tablets and pain relieving medication. He was worried that he would be a danger to his passengers. However, he did not cancel his taxi licence immediately as he was hopeful that he could get back to driving. However, during his oral evidence at the assessment conference, Mr Tan confirmed the matters recorded in the worksheets and agreed that the last time he drove a taxi was on 14 September 2018, that is, prior to the motor accident.
There was no evidence from the taxi owner whose taxi Mr Tan alleged he was driving from time to time prior to or at the time of the motor accident.
Even if I were to find that Mr Tan was working from time to time as a taxi driver prior to or at the time of the motor accident, there were no documents or any other records demonstrating Mr Tan’s earnings as a taxi driver for any period prior to the motor accident. Whilst Mr Tan claimed $120 per week, there was no documentary evidence that he did so. Mr Tan’s evidence was that whilst he was receiving Centrelink benefits, he could earn up to $120 per week. He did not say in his evidentiary statements that he was earning $120 per week leading up to the motor accident. In written submissions, Mr Tan’s lawyers claimed $120 per week for the past and into the future to the age of 80 years. There was no evidence that Mr Tan did earn $120 per week net. In his oral evidence, he said that he did not know how much it was costing him to take the taxi out and that, sometimes, he took the taxi out and it cost him money.
There is just insufficient evidence to enable me to assess Mr Tan’s economic loss or to even justify awarding a buffer even if I were to find that Mr Tan was working from time to time as a taxi driver prior to or at the time of the motor accident. Further, the evidence fell well short of enabling me to make the necessary findings in respect of the s 4.7(1) assumptions about future earning capacity or other events on which any award is to be based, in accordance with Mr Tan’s most likely future circumstances but for the injury.
I cannot, for the reasons stated above, be satisfied that Mr Tan was working prior to the motor accident.
Accordingly, I make no allowance for past economic loss or future economic loss.
ASSESSMENT OF DAMAGES SUMMARY
Under s 7.36(1)(b) of the MAI Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
For the reasons stated above, Mr Tan is not entitled to damages for non-economic loss, past loss of earnings or future loss of earnings. Accordingly, the assessed amount of damages for the claim is $0.
COSTS AND DISBURSEMENTS
Mr Tan’s legal costs and disbursements are assessed in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 (the Regulation).
Attached to Mr Tan’s AALD was an itemised schedule of his legal costs and disbursements dated 5 November 2024.
After issuing this Certificate and Statement of Reasons in draft at the request of the insurer on 28 April 2025, I made the following directions:
1. The insurer is to provide written submissions as to costs, including any objections to the claimant’s schedule of costs and disbursements by 5.00 pm on 2 May 2025.
2. The claimant is to provide written submissions in reply by 5.00 pm on 8 May 2025.
On 2 May 2025, the insurer responded to my direction in respect of legal costs and disbursements by advising that it did not object to Mr Tan’s schedule of costs and disbursements dated 5 November 2024.
On 9 May 2025, Mr Tan’s legal representatives advised that they did not intend to make any submissions in reply to the insurer’s submissions on legal costs and disbursements.
Accordingly, the insurer is to pay the claimant’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Regulation as agreed or assessed.
LEGISLATION
In making my decision I have considered the following legislation:
(a) Personal Injury Commission Act 2020;
Personal Injury Commission Rules 2021(b) ;
(c) the MAI Act, and
(d) the Regulation.
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