Yoo v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Yoo v AAI Limited t/as GIO [2022] NSWPIC 671
Claimant:	Minjung Yoo
insurer:	AAI Limited t/as GIO
Member:	Brett Williams
DATE OF DECISION:	6 December 2022
CATCHWORDS:	MOTOR ACCIDENTS - Damages assessment under Motor Accident Injuries Act 2017; claimant suffered physical and psychological injury as a result of accident; insurer agreed that she was entitled to damages for non-economic loss; claim for past and future economic loss; claimant was on student visa at time of accident; South Korean national; argued that most likely future circumstances were that she would have remained in Australia; Held – awards made for non-economic loss and economic loss; claimant had an ongoing loss of capacity that was productive of financial loss; loss of capacity due to physical and psychological injuries; most likely future circumstances were that she would return to South Korea; damages of $1,079,293 assessed.
determinations made:	CERTIFICATE OF DETERMINATION 1. Under s 7.36(3) and s 7.36(4) of the Motor Accident Injuries Act 2017, I specify the amount of damages for this claim as $1,079,293. 2. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accident Injuries Act 2017 is $82,146.94 inclusive of GST.

STATEMENT OF REASONS

BACKGROUND

Ms Minjung Yoo (the claimant) suffered physical and psychological injury in a motor accident on 3 October 2018 (the accident). She subsequently made a claim for damages on AAI Limited t/as GIO (the insurer), the insurer of the at fault driver. Liability for the claim was wholly admitted by the insurer on 12 November 2020.
The claimant referred her claim to the Personal Injury Commission (the Commission) for assessment on 5 October 2021. Her entitlement to damages is governed by the Motor Accident Injuries Act 2017 (MAI Act). The parties agree that the claimant is entitled to damages for non-economic loss. Damages are also claimed for past and future economic loss.
On 21 November 2022 draft reasons were sent to the parties, in response to a request for draft reasons made in the claimant’s submissions dated 11 November 2022. In the draft reasons I directed the parties to lodge a joint memorandum on or before 30 November 2022. The parties were asked to address a number of matters in the joint memorandum, including whether an award for loss of superannuation should be made, interest and costs. The joint memorandum was received on 5 December 2022.

Assessment conference on 7 April 2022

The proceedings were listed for assessment on 7 April 2022. The claimant was represented by Mr Mooney SC, instructed by Mr Masselos. The insurer was represented by Mr Nesbeth, instructed by Mr Wholohan. The issues in dispute were narrowed, agreement being reached between the parties with respect to a range of matters.
For the reasons set out in the assessment conference report, the assessment was adjourned and relisted on 29 September 2022.

Assessment conference on 29 September 2022

The assessment proceeded on 29 September 2022. The parties were represented as they were on 7 April 2022. The parties confirmed their agreement with respect to the following:
·        As a result of the accident the claimant suffered an L4/5 postero-central annular bulge with a small tear (the L4/5 injury).
·        As a result of the accident the claimant developed post-traumatic stress disorder.
·        The claimant suffered a past loss of earning capacity that was productive of financial loss as a result of the L4/5 injury and the post-traumatic stress disorder.
·        The claimant will suffer a future loss of earning capacity that will be productive of financial loss as a result of the L4/5 injury and the post-traumatic stress disorder.
·        The Fox v Wood (s 4.5(1)(d) MAI Act) amount is $121.
·        The insurer is entitled to credit for payments made to the claimant in the sum of $62,956.95
Mr Nesbeth confirmed that there was no dispute that the claimant complained of pain in her head, neck, upper back, lower back and left knee when she consulted her general practitioner (GP), Dr Lee, on 5 October 2018.
Mr Mooney tendered an updated chronology. There was no objection to the chronology, which was adopted by the claimant when she gave evidence. I was also provided with correspondence between the claimant and Sydney Metro College that related to the Diploma of Project Management course she had commenced with that institution.
Mr Nesbeth confirmed that, while the claimant’s credit was not in issue, there was an issue about the reliability of her evidence.
Mr Mooney confirmed that the injuries to the claimant’s head, neck, upper back, and left knee are not incapacitating. He also confirmed that the claim for past economic loss does not include two periods of three months each during which the Covid19 lockdowns were in effect. The claimant subsequently lodged an updated schedule of past economic loss to reflect this.
During the course of the assessment issues arose in relation to the academic courses the claimant has undertaken in Australia and the claimant’s performance in those courses. Leave was granted to the claimant to issue a direction for production on Sydney Metro College.
Oral submissions were made by both parties with respect to the claim for non-economic loss and past economic loss. The parties were directed to provide written submissions addressing the claim for future economic loss once documents had been produced by Sydney Metro College.

Written submissions following the assessment conference and related matters

The insurer’s written submissions were received on 2 November 2022 and the claimant’s on 11 November 2022.
The insurer’s submissions of 2 November 2022 expressly reserve the right to rely upon further submissions in the event that new matters were raised by the claimant in her submissions. At [1.4] the insurer submitted that the claimant should not be permitted to serve any further evidence.
The claimant’s submissions dated 11 November 2022 include additional evidence on which she seeks to rely, in the form of records from Sydney Metro College. The submissions also include her 2012 certificate of income from South Korea. The submissions address this material.
As to the certificate of income, that document was provided in response to my enquiry of the claimant[1] as to whether her earnings in Korea as a customer service representative were AUD $40,000 net or AUD $40,000 gross.[2]
[1] Message to the parties sent through the portal on 10 November 2022.
[2] See claimant’s statement dated 4 October 2021 at [3].
On 14 November 2022 a message was sent to the insurer stating that if it wished to rely on any submissions in reply to the claimant's submissions dated 11 November 2022, it was to serve on the claimant and lodge with the Commission submissions in reply on or before 16 November 2022. Alternatively, the insurer was asked to confirm that it did not intend to rely on submissions in reply. On 14 November 2022 the insurer’s solicitor confirmed that the insurer did not intend to lodge any submissions in reply.
I intend to take into consideration the additional evidence the claimant seeks to rely on, namely:
·        the records produced by Sydney Metro College pursuant to a Direction for Production;
·        email correspondence between the claimant and Sydney Metro College dated 28 September 2022 and 4 October 2022, and
·        the claimant’s 2012 certificate of income from South Korea.
The evidence is relevant to the issues in dispute. The certificate of income has been provided in response to a request by me for further information in relation to the claimant’s earnings in Korea. The claimant clearly seeks to rely on the evidence from Sydney Metro College. The insurer has been given an opportunity to respond to the evidence. Further, should the claim be the subject of court proceedings, and evidence the claimant seeks to rely on is not available to the Commission for the purposes of this assessment, s 6.34 of the MAI Act may result in the claim being referred back to the Commission for further assessment. Such an outcome should be avoided. It would not be consistent with, nor give effect to, the guiding principle found in s 42 of the Personal Injury Commission Act 2020 (PIC Act).

evidence

The claimant’s statements

The claimant has provided a statement dated 4 October 2021. The statement confirms that it was read to her in the Korean language by a certified interpreter. At [9] the claimant provided the following account of the accident:
“On 3 October 2018 at about 9:30 AM, I was driving my Honda Civic sedan north along Lane Cove Road, Ryde. I was stationary and was waiting at a red traffic light at the intersection of Lane Cove Road and Bridge Road. As I was waiting in traffic, I suddenly heard a truck blasting its horn behind me. I looked over my left shoulder to see a large truck approaching at speed. I could see that the truck was not going to stop and I knew he would run into me. I feared for my life and for the life of my baby. The truck smashed into the rear of my car causing my body to be thrown forward before the seatbelt pulled me back into my seat. I remember banging my back and head against the seat. I was helped out of the car by a passer-by and ambulance and police attended. I was taken by ambulance to Royal North Shore Hospital where I had an x-ray of my neck and a pelvic ultrasound. I remained in hospital to be monitored before being released home at 10:00 PM.”
The insurer does not dispute the claimant’s evidence in relation to the circumstances of the accident or that her car was a write-off as a result of damage sustained in the accident.
The claimant’s statement traverses her work and educational history in South Korea and Australia. She completed a mechanical engineering degree in South Korea in 2008. From December 2008 until April 2013 she was employed as a customer care representative for an internet service provider, working 40 hours a week. She states that in this job she earned “the equivalent of AU$40,000 per annum”. In June 2014 she arrived in Queensland on a two-year working visa. Soon after arriving she commenced a full-time internship as a manicurist at a nail shop in Emerald. She met her husband in October 2014 and they became engaged in 2015. When her working holiday visa expired in July 2015 she obtained a student visa. She commenced a Certificate II in Business. Under the terms of the visa she was only permitted to work 20 hours a week. She reduced her working hours from full-time to part-time, continuing to work at the nail shop. She stopped working at the nail shop in late 2016 to concentrate on her studies and plan for her wedding, which took place in February 2017. In March 2017 she moved to Sydney with her husband. She then commenced a Certificate III in Business. In about June 2017 she commenced employment as a manicurist at a nail shop in Gordon. She completed the Certificate III in Business at the end of 2017 and commenced a Certificate IV in business in March 2018, with a plan to study a Diploma of Business. She fell pregnant in February 2018. The claimant states that she continued studying and working 20 hours a week at the nail shop until the accident occurred.
With her baby due in late December 2018, the claimant states that it was her intention to work until mid-November 2018 before taking three months of maternity leave. She states that she intended to finish the Certificate IV in May 2019 and immediately start her diploma, which she would have finished in mid-2020.
The claimant states that immediately prior to the accident she was in excellent health. She was 29 weeks pregnant. Her statement contains an account of the treatment she received following the accident. She says her GP, Dr Lee, referred her to Rose Kwon, a psychologist, for treatment in relation to nightmares and anxiety when travelling in a car. She continued, at that time, to see Ms Kwon every two or three weeks. Given that her back pain became worse over time, Dr Lee referred her for an MRI scan of her back, which was performed on 19 December 2019. She states that her nightmares became worse. She continued to be enrolled in her course, but could not complete the course work. She failed units and required special consideration to continue. Her mother came out from South Korea to assist her. She was referred to Dr Chee, psychiatrist and Dr Pope, neurosurgeon. She underwent physiotherapy. She completed her course with difficulty in July 2020, a year later than planned. She was referred to a pain specialist, Dr Nazha. In March 2021 she commenced a Diploma of Business. Due to Covid the course was conducted by Zoom 20 hours a week. She found continuing the course hard as she experienced difficulty concentrating and keeping focus. Sitting at a computer aggravated her back pain. She was not sure she would complete the course. She was failing units. She received a warning letter about her poor performance and unsatisfactory progress in August 2021.
The claimant states that tasks involving heavy lifting, long periods of standing or bending cause her pain. Sitting for long periods makes her pain worse. She cannot walk long distances. Her psychological symptoms persist. She is anxious about travelling in cars, no longer drives, and uses public transport. She experiences problems with sleep and struggles with focus and concentration. Her relationship with her husband and mother has been impacted. She has become socially withdrawn, finds it difficult to deal with stress and has lost confidence. The claimant states that she experiences feelings of hopelessness and helplessness and has considered self-harm. She does not feel that she is as connected to her daughter as she should be. She takes Ativan, Zoloft and Valium, together with Tramal when her back pain is bad.
The claimant states that her situation now is very different to how it was before the accident. She says she was happy and healthy and enjoyed a good relationship with her husband and friends, with whom she would socialise regularly. She was a member of a dog group and enjoyed walking and spending time with her dog.
The claimant’s evidence is that, apart from the problems she experiences with her lower back, she does not think she could return to work with her current psychological symptoms. She states that she is fatigued due to lack of sleep, and has problems with her memory and concentration. She no longer deals well with pressure and struggles dealing with people. She says that she would not be able to perform the work she performed in Korea as she would not be able to cope with pressure, meetings, and interactions, nor could she sit for long, or maintain focus and concentration. She states that her English skills are not very good, and that she cannot think of anyone who would employ her with her restrictions due to her injuries.
The claimant has also provided a supplementary statement dated 27 September 2022. She states that she failed the Diploma of Business she was studying, and was now on a bridging visa because she was no longer a student. She states that she failed the course because of her injuries from the accident, in particular because of difficulties concentrating and focusing, anxiety, sleeplessness, fatigue, lack of motivation, and trouble coping with pain from her physical injuries. She states that Dr Smith, her treating psychiatrist, had died and that she had been referred to a new psychiatrist, Dr Roxanas, who she had only seen on one occasion. Her husband has returned to Australia from Korea. She states that while they have been working on their marriage for the sake of their daughter they “have a long way to go”. Her mother has returned to Korea and she now relies on her husband to do the things her mother was doing. She states that her husband has been offered a job as a cook, and the employer has offered to sponsor his visa if he accepts the job. She states that her husband intends to accept the job.
The claimant states that she has read the report from the immigration lawyer, Ms Byers. Until reading Ms Byers’ report, she did not know that if she studied a Masters degree in engineering it would enable her to apply for residency. She states that she would have sought such advice eventually and that if she had been advised that the best pathway to residency was to study a Masters degree she would have done so. She states that once her studies were completed and she was granted residency, she would have made a decision about whether to pursue a career in engineering or stick to her plan of working in and owning her own manicure/beauty business. She states that if her husband had been able to secure sponsorship through his job, this would have given them another option for remaining in Australia without the need for further studies.

The claimant’s evidence at the assessment conference

The claimant gave evidence at the assessment conference on 29 September 2022. Although arrangements had been made for a Korean interpreter to be present, the interpreter was unwell and unable to attend. Mr Mooney’s position was that the claimant could give evidence without the assistance of an interpreter. The assessment proceeded on this basis. Having heard her evidence, I am satisfied that, while clarification was required in some instances, she understood the questions she was asked and was able to adequately respond to those questions in English.
The claimant gave evidence that her husband had recently returned to Australia from Korea after a number of years’ absence. Her mother, who had been living with her, had returned to Korea in early September 2022. She gave evidence that after the birth of her daughter her plan was to stop working for a maximum of three months. She explained, in response to questions from Mr Nesbeth, that she had to return to work after three months as she needed the money. Her mother would then have looked after her daughter.
The claimant gave evidence about her arrival in Australia on a working holiday visa in 2014. She then moved from a working visa to a student visa. She decided that she wanted to stay in Australia for a long time. She started studying to try and obtain a permanent visa. Having completed a Certificate II in Business, she commenced a Certificate III in March 2017. She confirmed that she undertook studies so she could continue to qualify for a student visa. Her evidence was that on a student visa she could work 20 hours a week.
The claimant gave evidence that she had completed a four year full time mechanical engineering degree in Korea. After she completed the degree, she worked for an internet provider in Korea. She was unaware, prior to the accident, that she may have an entitlement to stay in Australia if she went on and undertook further studies in engineering. She also gave evidence about working as a nail technician.
The claimant’s evidence was that following the accident she was studying a Diploma in Business, which she commenced in 2021. In early 2022 she received warning letters about her performance. She said that she had not completed that course because of her “body condition” and that she “couldn’t do anything” because she struggled with nightmares and could not concentrate. As a result of not being able to continue with the course, she said that her student visa expired on 13 May 2022 and that she is now on a bridging visa.
The claimant gave evidence that her husband had been offered sponsorship in Australia to work as a chef, and that she intended to stay with her husband.
The claimant’s evidence was that she experienced back pain, neck pain and a “left hip problem”. She said that she experienced back pain “almost all the time”. Her evidence was that the back pain was in her middle back to the left around the left hip. She said it “really, really hurt”. She said it was “serious pain” and that she couldn’t sit on a chair. The claimant’s evidence was that she could only sit for half an hour, at which point she would stand up, walk around and stretch. She explained that her left hip pain was “very horrible” and that it really hurt.

The claimant confirmed that prior to the accident she was undertaking manicure work 20 hours a week. Her evidence was that she could not perform that work now because she can’t sit for a long time and that it was “difficult to meet people”. She said that she couldn’t keep talking to the customers and concentrate. She also said that her back pain would make it difficult.
The claimant’s evidence was that after the accident she doesn’t want to go out, and she just stays at home. She said that she was very afraid of meeting people. She has flashbacks and nightmares three or four times a week. She was taking Pristiq, Zoloft and Temazepam. She stopped seeing her psychologist, Ms Kwan, during the covid lockdowns. She last saw her face to face on 13 September 2022. She had been referred to a psychiatrist, Dr Roxanna.
The claimant gave evidence in relation to the contents of her visa applications, to which I will refer later in these reasons. She explained that her visa applications were completed by an education agent.
In response to questions from Mr Nesbeth, the claimant confirmed that she completed a Certificate II in Business in January 2017, a Certificate III in Business in February 2018 and a Certificate IV subsequently. She also completed a Diploma in Business in late 2020. As to the Diploma in Business, her evidence was that her husband helped her complete the assessment for the course, which was an online course conducted by ABTI.
She confirmed that while her neck was better, it was not completely better. She still experienced pain “sometimes”. She gave evidence that she “couldn’t do anything”, including wash the dishes. Her evidence was that she couldn’t work. She said her back pain was serious.

Impressions of the claimant’s evidence

While there was no attack on the claimant’s credit, the insurer did raise an issue as to the reliability of her evidence. The insurer argues that there is a clear disconnect between the claimant’s reported level of disability and the nature of her injuries. The insurer points to the claimant’s grip strength testing and dexterity results when she was assessed by Ms Stewart of the Vocational Capacity Centre, that were found to be inconsistent and not in accordance with the nature of her injuries. Further, the insurer notes that the claimant’s postural tolerances were also observed to be better than she was reporting.
The insurer argues that the opinions of Dr Rikard-Bell, Ms Stewart and Dr Fearnside are all consistent with the claimant’s self-reported functional difficulties being significantly overstated.
I note that in his first report Dr Rikard-Bell recorded that the claimant appeared to be genuinely distressed. Dr Henricks did not consider that she demonstrated any obvious pain behaviours, although he thought it possible that the claimant’s self-reported personal adjustment difficulties since the accident were somewhat overstated. Dr Fearnside thought that the claimant presented in a “straightforward sort of way” and that no inconsistencies were identified. I have taken into consideration Ms Stewart’s finding that the claimant demonstrated pain behaviour.
Considered in isolation, the level of physical disability reported by the claimant may appear, at first blush, to be disproportionate with the physical injuries she has suffered as a result of the accident. But this does not, in my view, reflect the full picture. As will be seen from the findings made later in these reasons, the claimant is suffering the effects of psychological conditions that are attributable to the accident. The effect of the claimant’s physical and psychological injuries should be considered as a whole and not in isolation.
The claimant gave evidence at the assessment for over an hour. I found her to be an intelligent and articulate witness. On the whole, she appeared to understand the questions she was asked and respond appropriately in English. Clarification was occasionally required, both in terms of questions she was being asked and answers she gave. At times she appeared to be frustrated with some questions asked by Mr Nesbeth.
I formed the impression that she answered the questions she was asked honestly. She clearly believes that she is significantly disabled, and not able to undertake any form of work.
I did not find the claimant’s evidence to be unreliable or overstated. I do not accept that the claimant has significantly overstated her functional disabilities. Nor do I accept that she has overstated her psychological problems. I found the claimant’s evidence to have been given in a genuine manner. I generally accept her evidence, and will address specific aspects of it as these reasons progress.

Other evidence and submissions

The bulk of the material relied on by the parties is contained in an updated joint bundle.[3] As discussed earlier in these reasons, since the assessment conference the claimant has provided further evidence, submissions and an updated schedule of damages. The insurer has provided further submissions and an updated schedule of damages. I will canvas the submissions and the evidence in turn as I address the issues that arise for determination.
[3] AD7.

The Home Affairs documents

It is convenient at this juncture to address the material provided by the Department of Home Affairs. The contents of a number of documents contained in this material were raised with the claimant during the course of her evidence. In particular she was taken to a document titled “GENUINE TEMPORARY ENTRANT”. The claimant’s evidence was that she had not prepared this document and had not seen it before. She explained that the document had been prepared and submitted on her behalf by an agency. She specifically denied that she intended to return to Korea, despite statements to the contrary contained in the document. These statements include the following:
“I believe studying the project management in Australia has a number of merits. Firstly, it can be a great merit when I seek a job in Korea, as Korean companies recognize the high quality in Australian education. Also, if I could study project managements in English, it will be absolutely helpful to develop my career since there are many overseas business projects…”
…
“After I complete the course, I will go back to Korea for my dream to be a project manager of the engineering technology company. As I need to reunite with my husband and family, I should return back to Korea as soon as I achieve my study goal.”
…
“I am looking forward to the day I finish this course so that I can go back to Korea and realise my dream of working as a project manager at the engineering technology company in Korea…”
…
“…I believe it is the best timing for me to study project management before I go back to Korea…”
The claimant explained that this document was not completed by her, and that it was completed by an agency. Although I am concerned that documents said to be inaccurate in material respects were submitted to Australian Government Departments on the claimant’s behalf, I accept her evidence that, in so far as it is recorded that it was her intention to return to Korea, the document is not accurate and was not completed by her. I also accept her evidence that she had not seen the document before she gave evidence.

The Sydney Metro College documents

Sydney Metro College has produced documents in response to a direction for production that was issued after the assessment conference. There is also email correspondence between the claimant and the college dated 28 September 2022 and 4 October 2022, and documents tendered at the assessment.
The records show that on 10 March 2021 the claimant enrolled in a Diploma of Project Management. In her statement she referred to this course as a Diploma of Business. Correspondence from the college confirms that she was enrolled in the Diploma of Project Management from 15 March 2021, and that the course had to be completed by 13 March 2022.
There is a letter from the college to the claimant dated 10 August 2021. The letter is titled “FIRST WARNING CAUTION LETTER – UNSATISFACTORY COURSE PROGRESS”, and records that her enrolment in the Diploma of Project Management began on 15 March 2021. It is stated that a student is considered to have made unsatisfactory course progress if the student has not successfully completed or demonstrated competency in more than 50% of the course requirements in a study period. The letter goes on to state that she had been identified as making unsatisfactory progress, and that “the intervention strategy has been implemented”.
A statement of attainment issued by the college on 1 April 2022, records that the claimant achieved a rating of “C” (which means “competent”) for two subjects completed in each of term 2, term 3, and term 4 in 2021.
The records show that the claimant completed one subject in term 1 of 2022 and two subjects in term 3 of 2022. The claimant achieved a “C” in these courses.
Correspondence from the college to the claimant dated 8 February 2022 records that she had been identified as “at risk” of not making satisfactory course progress within the term. She was reminded of her student visa obligations. There is further correspondence dated 21 February 2022 that again makes reference to student visa obligations, and records that “course completion within duration is still outstanding” and that an “intervention strategy” had been implemented.
There is an email dated 21 February 2022 that records assessments for three subjects from previous terms were marked “NYC”, which I infer means “not yet completed”.
An email from the college to the claimant dated 25 March 2022 confirms that she was a full time student at the college, having enrolled in a Diploma of Project Management that was to commence on 15 March 2021, with the intention of completing by 13 March 2022. A letter to that effect has also been provided.
An email from the college to the claimant dated 4 October 2022 contains a table that records, in red, units she failed in the diploma course as follows:
·        Term 2 2021 – one subject.
·        Term 3 2021 – one subject.
·        Term 4 2021 – one subject.
·        Term 1 2022 – two subjects.
The email also confirms that the claimant achieved a “C” for:
·        Term 2 2021 – two subjects .
·        Term 3 2021 – two subjects.
·        Term 4 2021 – two subjects.
·        Term 1 2022 – one subject.
The material from the college satisfies me that the claimant failed to complete the Diploma of Project Management she commenced in March 2021. This evidence is consistent with the claimant’s evidence that she failed that course. It is also consistent with her now being on a bridging visa as she is no longer a student.[4]
[4] Claimant’s statement dated 27 September 2022 at [3].

Other educational records

In evidence is a certificate of degree from Dong-A University. The certificate records that the claimant was awarded a Bachelor in Engineering on 22 February 2008.
There is a statement of attainment from Australis Institute of Technology and Education dated 10 February 2017, which records that the claimant had completed seven subjects as part of a Certificate II in Business.
A statement of attainment from Australian Vocational Training Institute (AVTI) dated 16 March 2022 records that, between 27 February 2017 and 24 February 2018, the claimant completed two subjects as part of her Certificate III in Business.
A statement of attainment from AVTI dated 16 March 2022 records that, between 2 April 2018 and 30 March 2019, the claimant completed three subjects as part of a Certificate IV in Business. (The claimant’s submissions dated 11 November 2022 state at [22(ii)] that she completed the Certificate IV in Business on 30 March 2019).
There is an academic intervention form dated 13 March 2019 that records the claimant had received a warning letter. Reference is made to injuries sustained in a motor vehicle accident, her pregnancy, and the birth of her daughter. A two term extension was approved for six units related to the Certificate IV in Business course she was undertaking.
On 13 April 2020 the claimant was sent a warning letter because she had failed to maintain satisfactory progress in 2020.

Injury findings

As recorded earlier, the parties agree that, as a result of the accident, the claimant suffered an L4/5 postero-central annular bulge with a small tear (the L4/5 injury). This pathology is confirmed in an MRI scan report dated 19 December 2018. In terms of causation, the opinions of Drs Endrey-Walder, Pope, Assem, and Fearnside support a finding that the L4/5 injury was caused by the accident, as do the claimant’s contemporaneous complaints of lower back pain. I am satisfied, and I find, that the L4/5 injury was caused by the accident.
I accept the claimant’s evidence that her low back pain radiates to her left hip and down her leg to her left knee. In a report addressed to Dr Lee dated 3 June 2020, Dr Pope, neurosurgeon, recorded complaints of lumbosacral junction lower back pain at the midline with bilateral radiation across the hips, going into the claimant’s left buttock, hamstring and knee. Dr Pope thought that the claimant may be suffering some discogenic lower back pain with a left L5 radicular component. Dr Endrey-Walder expressed the opinion that, while he found no evidence of radiculopathy when he examined the claimant, “from time to time there may be some referred or radicular pain towards the left buttock /thigh”. Dr Assem thought it possible that the left hip and leg symptoms were non-verifiable radicular symptoms. I consider it probable, and I find, that the claimant’s left hip and left leg symptoms are non-verifiable radicular symptoms that are caused by the L4/5 injury.
The discharge summary from Royal North Shore Hospital dated 3 October 2018 records complaints of cervical and thoracic pain, and refers to a “good history for delayed onset pain after a whiplash injury”.
On 5 October 2018 the claimant complained of pain in her head, neck, upper back, lower back and left knee when she consulted Dr Lee for the first time following the accident.
In her statement dated 4 October 2021 the claimant states at [11] that following the accident she was experiencing pain in her left hip, upper back, neck and left knee. I accept her evidence in this regard.
In her reasons dated 2 April 2020, Medical Assessor Condie stated as follows:
“The picture is clouded however, particularly in terms of her lower back and related symptoms, by [her] pregnancy and delivery in late December 2018. She was 26 weeks pregnant at the time of the accident, from week 7-10 relaxing hormone is commonly released. It is likely that her joints, ligaments and muscles would have been laxer than normal at the time of the accident. At the moment of impact she was fully turning to her left, this mechanism of whiplash injury is in line with her symptoms in the regions of her pelvis, low mid and neck spine.”
I find that the claimant suffered soft tissue injury to her neck, upper back, left hip and left knee as a result of the accident. I find that she has some ongoing neck symptoms. I find that the soft tissue injuries to the claimants upper back, left hip and left knee have resolved. I am satisfied that the soft tissue injuries to the claimant’s neck, upper back, left hip and left knee do not give rise to a loss of capacity.
To be clear, the left hip and left knee soft tissue injuries that I have found were caused by the accident are discrete injuries that are separate and distinct from the left hip and left leg symptoms that I have found are non-verifiable radicular symptoms caused by the L4/5 injury.
The evidence satisfies me, and I find, that the claimant suffers post-traumatic stress disorder as a result of the accident. This finding is supported by Medical Assessor Paisley, together with Dr Chee, Dr Oldtree-Clark, Dr Rastogi, Dr Rikard-Bell and the claimant’s treating psychologist, Rose Kwon. I consider it probable, and I find, that the claimant also suffers from panic disorder, a condition diagnosed by both Dr Rikard-Bell and Dr Rastogi.

Capacity - medical evidence

In his report to Dr Lee dated 10 July 2020, Dr Smith, the claimant’s treating psychiatrist, stated that the claimant was “clearly unwell” and had no “current capacity to undertake work” due to her psychological injuries.
Dr Fearnside reported on 15 October 2020. In the doctor’s opinion the main cause of the claimant’s continuing disability was the L4/5 injury. While the doctor did not express an opinion about work capacity, he observed that the claimant was “surprisingly disabled in respect of an ability to participate in normal housework”. The doctor “would have thought that she had some capacity to perform normal household chores” and that any requirement for domestic assistance should be minimal.
In his report of 17 March 2021, Dr Endrey-Walder expressed the opinion that, as a consequence of her back injury, the claimant’s long term prognosis was guarded. In his opinion, work as a manicurist, and any similar work, “is and will remain beyond [the claimant] in the long term”. In this regard, the doctor recorded that:
“A manicurist sits practically all the time during working hours, often hunched over and remaining in a fixed position that her lower back does not and will not tolerate for more than a very short period of time, certainly not for hours on end.”
Dr Endrey-Walder expected the claimant to be able to continue with her studies online as she was able to get up and move about whenever aggravated.
Dr Assem reported on 7 February 2022. The doctor recorded that the claimant’s main concern was intermittent mechanical low back pain with possible non-verifiable radicular symptoms in her left leg. In his opinion, the claimant’s condition is “confounded by underlying anxiety and depressive symptoms”. He thought that the predominant barrier to her returning to work is her inability to maintain static postures for long periods, inability to focus and concentrate, and associated psychological complaints. In his opinion, the claimant would probably have difficulty fulfilling the inherent physical requirements of her pre-accident work as a manicurist in a regular and reliable manner. In the doctor’s opinion, if the claimant’s psychiatric condition improved, she may be able to return to suitable duties at reduced hours. Dr Assem thought that the claimant’s prognosis is guarded, predominantly due to the severity of her psychological complaints. The doctor expressed the opinion that:
“Given her complaints, limitations, poor understanding of the English language and lack of transferable skills, she will probably have difficulty securing suitable employment that she is capable of performing in [a] regular and reliable manner. She has remained off work for more than three years and will probably continue to remain off work in the foreseeable future. Had it not been for the subject motor vehicle accident, she would probably have continued working until the age of retirement.”
At the insurer’s request the claimant was assessed by the Vocational Capacity Centre (VCC). The VCC produced a report dated 26 November 2021. Included with the VCC report is a functional capacity evaluation report prepared by Gillian Stewart, a physiotherapist. The evaluation records that reported postural tolerances were well-exceeded during the assessment. Grip strength results were found to be inconsistent on repeat testing and the pattern of results were not, in her opinion, consistent with maximal effort. Dexterity results were found to be well below average and impacted by slow pace, and inconsistent with expectations given the absence of pathology in the upper limbs.
Pain behaviour was noted by Ms Stewart during the assessment. In Ms Stewart’s opinion, the pain behaviour tended to manifest predominantly as exaggeration in the claimant’s self-reported limitations, including the inability to perform any domestic tasks and only minimal childcare tasks. Clinically, the claimant was considered to have a functional range of movement of the neck, trunk and all peripheral joints, and functional strength. It was concluded that, functionally, the claimant demonstrated the ability to work in sitting and standing postures with appropriate postural breaks. Ms Stewart found that, on assessment, the claimant demonstrated the physical capacity to perform sedentary and selected light work with appropriate postural breaks. In Ms Stewart’s opinion, the claimant is suited to her pre-injury occupation as a manicurist and is also suited to the role of small business owner, together with occupations she has performed in the past such as the customer service role she held in Korea. In Ms Stewart’s opinion, the claimant required a graded return to full-time duties. A targeted gym program would be beneficial. It is recorded in the evaluation that the conclusions reached were based on the claimant’s physical abilities and needed to be correlated with those of appropriate psychologists or psychiatrists regarding her psychological suitability.

A vocational assessment report was prepared by Dr Henricks, vocational psychologist. The report records that there was no evidence of concentration difficulties during the assessment. It was found that on the WPP Numeracy subscale the claimant performed in the above average range. Each question was presented in a narrative written format in English and the claimant is reported to have worked quickly through each question without difficulty. The claimant’s cognitive skills and abilities were found to be strong. Her performance on a word reading subscale was said to have been consistent with the reading skills she demonstrated while completing the WPP Numeracy subscale. It is reported that she correctly read 57 of 70 letters or words presented to her. This result was in the average range for someone of her age. Her score was equivalent to the 30^th percentile. Dr Henricks expressed the opinion that this result was particularly impressive when the claimant’s non-English speaking background was taken into consideration, as her results on this test were compared to the general population.
The claimant’s ability to solve novel, non-verbal, problems was found to be equal to or better than 73% of the population her age. Despite her non-English speaking background, her reading skills appeared to be in the average range for her age compared to the general population, including people for whom English is a first language. On the basis of these results, it was considered that the claimant should have limited difficulty transitioning to a clerical or sales position up to an intermediate level. She would also be capable of pursuing further study at a university in either Korean or English. It was considered that the claimant’s existing training would be sufficient to allow her to pursue the small business opportunities with respect to which she had expressed interest.
Dr Henricks found, as a result of his assessment of the claimant, only limited evidence of the independent travel, concentration and language difficulties reported by Dr Rikard-Bell in his report of 12 February 2021. It was noted that on the day of the assessment, the claimant travelled to the VCC office with no reported difficulties. It is recorded that she completed a full day of assessments, both functional and vocational, without complaint. She performed well on all knowledge and skill-based assessments assigned to her, demonstrated a sufficient grasp of the English language to pursue employment, communicated clearly without the use of her interpreter for most of the assessment, and demonstrated no obvious reading difficulties during the administration of standardised tests. Dr Henricks thought it was possible that the claimant’s self-reported personal adjustment difficulties since the accident were somewhat overstated. Her response patterns in the P-3 testing indicated that she was potentially attempting to magnify the emotional and somatic difficulties experienced as a result of the accident. In his opinion, a return to work sooner rather than later will be critical in helping the claimant rebuild a sense of self-efficacy and independence. In Dr Henricks’ opinion, her rumination on previously unsuccessful attempts to return to work, risks becoming self-fulfilling if not addressed soon.
From a cognitive perspective, the claimant was found by Dr Henricks to be capable of either returning to her pre-injury role or opening her own small business. Work as a mechanical engineering draftsperson or maintenance planner were thought to be realistic options, given her mechanical engineering qualifications. With further vocational training consideration could be given to work as a film and video editor or graphic designer. Dr Henricks expressed the opinion that all of this work, subject to visa restrictions, could be undertaken by the claimant on a full-time basis. The report records that the assessment by Dr Henricks was undertaken from a psychological perspective.
The VCC report includes a job match report. Income from a range of roles is provided in the report, on both a full time basis and for 20 hours a week. Tasks associated with the roles identified are included in the body of the report. The data provided relates to work in the hair and beauty industry, earnings as a small business owner/manager of a nail salon, purchasing officer, payroll clerk, mechanical engineering draftsperson, maintenance planner, film and video editor and graphic designer.
In terms of the impact that the post-traumatic stress disorder has on the claimant’s capacity to earn, Dr Oldtree-Clark, in his report of 23 October 2019, expressed the opinion that she was totally incapacitated for work on the open labour market. He thought that a rehabilitation physician should be consulted with regard to her working capacity. At the time he reported, the doctor did not consider that the claimant had reached maximum medical improvement.
In her report of 18 December 2020, Dr Rastogi expressed the opinion that the claimant had no capacity due to her injuries and impairments. Her main barriers were poor stress coping, ongoing active symptoms of anxiety, avoidance and fear. The doctor expressed the opinion that the claimant was unemployable. She considered it unlikely that the claimant will be able to complete her studies. In Dr Rastogi’s opinion:
“[the claimant’s] earning capacity is impeded given the chronicity of her condition and impairments and her ability to work is certainly diminished and her vocational options are very limited.”
In her report of 13 April 2022, Dr Rastogi recorded that the claimant described hopelessness, helplessness, poor frustration tolerance and uncertainty about her future. She reported ongoing flashbacks and nightmares. The claimant continued to be impaired by post-traumatic stress disorder, presenting with marked avoidance behaviour, being triggered, emotional detachment and irrational fears with intrusive traumatic thoughts. She had made limited progress with treatment. The claimant’s ability to function and maintain employment had been impacted. She had impaired concentration and insomnia. In Dr Rastogi’s opinion, the claimant’s prognosis is poor vocationally and socially. There had been no improvement in her mental state since the doctor last saw her. In the doctor’s opinion, the claimant has no capacity to work on the open labour market due to her psychological impairments. She had very poor vocational opportunities. The doctor could not see her rehabilitating. In the doctor’s opinion, the claimant had been totally unfit for work. Her work restrictions are permanent.
Dr Rastogi expressed the opinion that the claimant’s psychological impairment is not out of proportion with the severity of the motor accident. The doctor noted that, at the time of the accident, the claimant was 29 weeks pregnant, developed pain, and was in fear of losing her baby. Further, the accident had culminated in relationship separation, loss of her vocational role, physical deconditioning and instilled irrational fears. The claimant had not been able to process the trauma and associated losses, resulting in significant impairments. In Dr Rastogi’s opinion, there are no inconsistencies noted in the claimant’s presentation. Dr Rastogi disagreed with Dr Henricks’ assessment. In her opinion, there had been no improvement from a psychological perspective. The claimant’s functioning and symptoms had been static. Dr Rastogi expressed the opinion that Dr Henricks’ evaluation of the claimant’s performance at the vocational assessment did not reflect the claimant’s true functional capacity. In her opinion, the claimant remained unfit to work in the roles identified in the VCC report due to her social and cognitive impairments as well as avoidance of driving limiting her independence. The doctor thought that the claimant was barely functioning with her day-to-day activities and was heavily reliant on her mother. She struggled with routine, maintaining finances and decision making. Thus, in the doctor’s opinion, the roles proposed in the VCC report are farfetched.
Dr Rikard-Bell, psychiatrist, reported on 12 February 2021. He diagnosed post-traumatic stress disorder. The doctor thought that “it is possible there are cultural issues and language barriers that are complicating the picture”. He did not identify what the cultural issues are. He observed that the claimant’s physical injuries were relatively minor. Dr Rikard-Bell thought it was “puzzling” as to why she has not improved. The doctor recorded that, while the claimant was genuinely distressed, her degree of psychological impairment appeared to be out of proportion with the severity of the accident. The report records that her ongoing disabilities include sleep disturbance, panic attacks, nightmares, avoidance of going out, avoidance of driving and emotional restrictions. In Dr Rikard-Bell’s opinion, there was a severe impairment of adaption. The claimant would not be able to undertake any work duties “currently”. The prognosis was unclear. It was not clear to the doctor why there had not been any improvement.
In his recent report of 2 September 2022, Dr Rikard-Bell recorded that the claimant had not undergone psychological treatment since her last session with Rose Kwon in 2021. The doctor recorded that the claimant was not sleeping well, her appetite fluctuates, that there is suicidal ideation at times, and that the claimant was avoidant of social outings and social interaction. She experiences nightmares and flashbacks, emotional numbness, irritability and hypervigilance. The doctor thought that it was concerning that there had been no improvement in the four years since the accident. The doctor thought that the post-traumatic stress disorder appeared to be slowly remitting. In his opinion, the claimant was capable of part-time work with a view to increasing to full time work. There was, in his opinion, no incapacity or restrictions for work from a psychological perspective. The claimant’s prognosis was thought to be guarded due to the ongoing symptoms of pain and what appeared to the doctor to be “sick role behaviour with ongoing avoidance”. He recorded a history that the claimant has been able to continue with her business degree online, which suggested to him that her functioning is better than she reported.

Capacity - findings

For the reasons that follow, I am comfortably satisfied that the claimant has suffered, and will suffer, a loss of capacity to earn as a result of the L4/5 injury and her psychological injuries. I am not satisfied, on balance, that the soft tissue injuries to the claimant’s neck, upper back, left hip and left knee have given, or will give, rise to a loss of capacity. So much was conceded by Mr Mooney at the hearing.
In evaluating the claimant’s work capacity, I am mindful of what was said by the Court of Appeal in Nominal Defendant v Livaja [2011] NSWCA 121 at [65]:
“[65] There are distinctions to be drawn between injury and impairment or disability consequent upon injury, and between impairment or disability and diminished earning capacity. Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market…. the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation…”
I accept the claimant’s evidence that tasks involving heavy lifting, long periods of standing, bending and sitting cause her pain.
Dr Endrey-Walder recorded that a manicurist sits practically all the time during working hours, often hunched over and remaining in a fixed position. The VCC report includes a detailed description of the typical duties and physical demands associated with work as a manicurist[5]. I am satisfied, and I find, that the description provided by the VCC in this regard is accurate, and reflects the work performed by the claimant as a manicurist prior to the accident.
[5] See page 222 of the joint bundle AD7.
Ms Stewart found that the claimant demonstrated the physical capacity to perform sedentary and selected light work with appropriate postural breaks, and that, accordingly, she was suited to her pre-injury occupation as a manicurist. Ms Stewart’s opinion in this regard is based on the claimant’s performance when she was assessed over the course of a day. I have considered the physical work abilities demonstrated by the claimant at the VCC assessment, as recorded in the VCC report. I do not accept Ms Stewart’s opinion that the claimant is suited to her pre-injury occupation as a manicurist. I do not consider that the claimant’s performance at the functional assessment on a single day supports a finding that she has the capacity to work as a manicurist. Further, Ms Stewart’s report records that her conclusions are based on the claimant’s physical abilities, and need to be correlated with psychological or psychiatric opinion regarding her psychological suitability for work. This qualification is important given the findings made below in relation to the impact of the claimant’s psychological injuries on her earning capacity.
I prefer Dr Assem’s opinion that the claimant would probably have difficulty fulfilling the inherent physical requirements of her pre-accident work as a manicurist in a regular and reliable manner. I also accept Dr Endrey-Walder’s opinion that work as a manicurist, and any similar work, is and will remain beyond her in the long term. I do not consider it practical or realistic for the claimant to take the regular breaks she would require if she returned to work as a manicurist.
I find that the L4/5 injury has rendered the claimant permanently unfit to work that requires her to maintain static postures for long periods, including sitting. I find that she is unfit to return to work as a manicurist.
I found the claimant to be an intelligent and articulate person, despite some limitations expressing herself in English. She has an Engineering Degree, Certificates II and III in Business and has completed units in other courses. She was employed as a customer care representative for an internet service provider in Korea between December 2008 and April 2013, working 40 hours a week. I accept her evidence that the duties associated with that work included attending meetings, computer work and customer interaction.
I am satisfied that the claimant has transferable skills that are relevant to the assessment of her earning capacity.
I accept that the claimant has the ability to work in sitting and standing postures with appropriate postural breaks. I accept Dr Endrey-Walder’s opinion that, if the claimant were provided with a vertical desk, she could attend to her studies seated or standing according to symptoms. I infer from this that from a physical perspective, the claimant would be capable of undertaking employment that made these allowances.
Whilst I have found that the L4/5 injury is likely to have rendered the claimant permanently unfit to perform work as a manicurist, and similar work, I find that the L4/5 injury has not resulted in a total loss of capacity to earn, and that when considered without reference to her psychological injuries, she has a practical earning capacity.
I find that, from a physical perspective, with appropriate vocational support, the claimant could return to part time work in a job that enabled her to take the postural breaks she requires and that, over time, it is possible that she could return to work on a full time basis. I consider it likely that the claimant could run a small business and work in employment of the sort she was undertaking in Korea. As a small business owner she would have greater control over her work environment and would be in a position to tailor her working conditions to make the necessary allowances she needs as a result of her L4/5 injury. As to the office work she performed in Korea, I have taken in to consideration that many workplaces allow for standing and sitting as required. Additionally, I consider that the claimant would have more vocational opportunities in Korea, where any shortcomings in her ability to communicate in English would not be a limiting factor.
The L4/5 injury is not, however, the end of the story. I have found that the claimant suffers from post-traumatic stress disorder and panic disorder.
I accept the claimant’s evidence that she suffers from a low mood, poor concentration, difficulty maintaining focus and reduced motivation. I accept her evidence that she is anxious and experiences nightmares, flashbacks and panic attacks. I accept her evidence that she does not deal well with pressure and struggles dealing with people. I accept her evidence that she experiences difficultly sleeping. I accept that she experiences “brain fog”. I am satisfied that these symptoms are the result of the psychological injuries from which I have found she suffers as a result of the accident. Like Dr Rikard-Bell[6], I am satisfied that the claimant is genuinely destressed.
[6] Report dated 12 February 2021.
However, I do not accept Dr Rikard-Bell’s opinion that there is no incapacity for work arising from the claimant’s psychological injuries. The doctor refers to the claimant having been involved in a “relatively minor motor vehicle accident”. It seems to me that his opinion that the claimant’s psychological impairment appears to be out of proportion with the severity of the accident is a factor that informs his opinion about the claimant’s work capacity. I have set out earlier in these reasons the claimant’s account of the accident. I have accepted that account as being accurate. On the basis of that account I do not agree that the accident was “relatively minor”. Given that, in his report of 2 September 2022, Dr Rikard-Bell recorded that the claimant had not recovered further, and that her prognosis was guarded, it is difficult to understand how he then reached the conclusion that she has no incapacity for work from a psychological perspective, having previously expressed the opinion, in his earlier report, that she was not able to undertake any work duties. In my opinion, the doctor has not reconciled his agreement with the VCC assessment with his finding that she had not recovered further since he last assessed her (at which time he found that she had no capacity for work from a psychological perspective).
Further, while I accept that the claimant may have the theoretical cognitive capacity to undertake the jobs identified by Dr Henricks, I am not satisfied that she has the practical capacity to perform that work.
I prefer Dr Rastogi’s opinion that the claimant presently has no capacity to work on the open labour market due to her psychological injuries. I consider that the doctor’s opinion in this regard is supported by the claimant’s evidence, that I have accepted, to which I have referred at [109].
I find that it is probable that the loss of capacity arising from the claimant’s psychological injuries currently prevent her from working in employment that she would otherwise be capable of undertaking, and that accommodates the limitations she has as a result of her L4/5 injury.
I find that as a result of her post-traumatic stress disorder and panic disorder, together with her L4/5 injury, the claimant has had no capacity to earn since the accident. I also find that the claimant presently has no capacity to earn. To the extent that they have concluded to the contrary, I reject the opinions of Dr Rikard-Bell, Dr Henricks and Ms Stewart.
It has been four years since the accident. There has been minimal improvement in the claimant’s psychological conditions, despite her receiving treatment from a psychologist and psychiatrist. Her treatment has been interrupted by Covid lockdowns and the death of Dr Smith. Some improvement is possible. None the less, her psychological injuries are well entrenched.

I am satisfied that the claimant failed to complete the Diploma of Project Management primarily as a result of symptoms associated with her psychological injury. I accept that the L4/5 injury also played a role. I have concluded that, given: her stated desire to remain in Australia; she was relying on a student visa to stay in Australia; the student visa required appropriate progress in the courses she was undertaking; and her successful completion of courses prior to the accident, it is more likely than not that, but for the injuries she sustained in the accident, she would have completed the Diploma of Project Management.
I am not persuaded that the claimant’s successful completion of some courses and subjects she undertook after the accident supports a finding that she has a residual practical capacity to earn. Being able to undertake educational courses does not equate to a practical ability to undertake employment, particularly when those courses were attended through the use of audio-visual applications from home. Further, she was unable to complete the last course she undertook, having failed to complete subject in 2021 and 2022. Her failure to do so, in my view, was due to the effects of her accident caused injuries.
I consider that it is possible, but not probable, that the claimant’s psychological symptoms may, over time, improve to an extent that would enable her, with suitable vocational assistance, to work part-time in employment that allowed her to take the postural breaks she requires as a result of her L4/5 injury. The evidence available does not enable me to make a finding as to when this might transpire.

Assessment of damages

The claimant’s case is that she should be awarded damages amounting to $1,688,309 as follows:
·        Non-economic loss            $425,000.
·        Past economic loss            $83,658.
·        Past superannuation          $9,202.
·        Fox v Wood  $121.
·        Future economic loss        $1,023,193.
·        Future superannuation       $147,135.
The insurer, on the other hand, submits that the award of damages should amount to $309,383, comprised as follows:
·        Non-economic loss            $175,000.
·        Past economic loss            $53,150.
·        Superannuation                 $6,112.
·        Fox v Wood  $121.
·        Future economic loss        $75,000.

Non-economic loss

Non-economic loss is defined by the MAI Act as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement: s 1.4 MAI Act. An award of non-economic loss is intended to compensate the claimant for the pain and suffering through which she has gone, and she will continue to go through, the loss of the amenity of her life through which she has gone and through which she will go, and for the loss of enjoyment of the life which she had and which she cannot now continue to have. It is designed to compensate for all of those individual things, often too numerous to list, which fall within these general descriptions: Kerney v Mead & Anor [2011] NSWSC 518 at [148].
I accept the claimant’s evidence that before the accident she was young, happy, healthy, enjoyed a happy work and home life, was fully independent in respect of all work and domestic activities, and was able to pursue her hobbies and interests, including cooking, reading, socialising, and participating in a dog club with her husband and their Bichon dog. I accept her evidence that she enjoyed a happy marriage and was excited about starting a family, was optimistic about her future and had plans to finish studying and to open her own business.
The claimant’s case is, and I accept, that the accident has had a devastating impact on her life, leaving her with a debilitating, chronic psychiatric illness that reaches into all aspects of her life. It is submitted that she suffers a crippling level of disability as she rarely leaves the house, suffers regular panic attacks, cannot drive due to anxiety, and has impaired focus and concentration. Apart from the psychological injury, it is submitted that she must contend with constant lower back pain that is aggravated by activities of daily living, and which serve as a constant reminder of an accident she would rather forget.
The claimant submits that her life has been completely transformed by the accident and that an award of not less than $425,000 for non-economic loss damages would be appropriate.
The insurer submits that an appropriate allowance for non-economic loss is $175,000.
Although I have found that they have resolved, in the immediate aftermath of the accident the claimant experienced symptoms arising from soft tissue injury to her upper back, left hip and left knee. The claimant’s pain and suffering arising from these injuries is relevant to the assessment of damages under this head, as are the injuries to her neck, the L4/5 injury, including the non-verifiable radicular symptoms in her left hip and left leg, and the psychological injuries from which I have found she suffers.
I accept the claimant’s evidence that her injuries have had an adverse impact on her homelife, her relationship with her husband, her baby daughter and her social life. She no longer drives and does not interact with the members of a small dog owners group, with whom she would spend time prior to the accident. She experiences significant ongoing psychological symptoms, including regular nightmares and difficulty sleeping, low mood and flashbacks. She has become socially withdrawn, finds it difficult to deal with stress, has lost confidence, and experiences panic attacks. She was 32 years of age at the time of the accident, and is presently 36 years old. She has a life expectancy of 50 years. I assess $335,000 for this head of damages.

Past economic loss

The claimant submits that the medical evidence overwhelmingly establishes that she has been totally incapacitated since the accident. She claims $450 net per week with 5% annual incremental wage rises from the date of the accident until 11 November 2022. She makes no claim for the period 16 November 2018 until 15 February 2019, when she would have taken maternity leave for three months. She makes no claim for past economic loss for the periods 31 March 2020 – 1 July 2020 and 26 June 2021 – 10 October 2021, which reflect the first and second Covid lockdowns.
A claim for lost superannuation at 11% is made. The sum of $121 is claimed pursuant to Fox v Wood (s 4.5(1)(d) MAI Act).
The insurer submits that the claimant’s inability to work would appear to be largely due to her psychological condition. In terms of the claimant’s work capacity, the insurer relies on the VCC reports, together with the opinion expressed by Dr Rikard-Bell in his recent report and the certificates that have certified the claimant as being fit to work four hours a day three days a week since early March 2019. Further, the insurer argues that the claimant would not have worked from December 2018 until June 2018 to look after her new born daughter.
The insurer submits that past economic loss in the sum of $67,050 ought be allowed. This sum reflects an allowance of $450 net a week for the periods set out below.
·        3 October 2018 - 15 November 2018 = $2,700;
·        1 July 2019 – 30 June 2020 = $17,550, and
·        1 July 2020 – 29 September 2022 = $46,800.
The insurer’s case is that there should be no allowance for the periods 16 November 2018 – 15 February 2019 and 16 February 2019 – 30 June 2020 to reflect the Covid lockdowns.
At the time of the accident the claimant was working 20 hours a week as a manicurist. The parties agree, and I find, that in that employment the claimant was earning $450 net a week.
The insurer’s position is that the claimant would have been off work for six months following the birth of her daughter, and that no allowance should be made for this period. I accept the claimant’s evidence that she would have returned to work three months after the birth of her daughter. I am satisfied that her intentions in this regard were driven by financial considerations. I will not allow any loss (and none is claimed) for the period 16 November 2019 – 15 February 2019.
I have found that the claimant has been totally incapacitated for work since the accident due to her psychological injuries and the L4/5 injury.
Mr Sidhaw’s report satisfies me that earnings as a manicurist vary from employer to employer. His report records that there are no salary guides or surveys available for manicurists and beauticians. Based on job advertising he identified, Mr Sidhaw found that manicurists earn between $25 - $35 an hour. I infer that this is a gross figure.
There is no evidence from the claimant’s employer in relation to either comparable earnings or wage increases since the accident. I have found that at the time of the accident the claimant was earning $450 net a week. I find that $450 net a week represents a fair measure of her economic loss to date.
The claimant does not seek, and I do not allow, any loss for the periods 31 March 2020 - 1 July 2020 and 26 June 2021 – 10 October 2021[7]. Accordingly, I assess the sum of $77,850 for past economic loss, calculated as follows:
·        3 October 2018 – 15 November 2019 (6 weeks) @ $450 a week = $2,700;
·        16 November 2018 – 15 February 2019 – nil;
·        16 February 2019 – 30 March 2020 (58 weeks) @ $450 a week = $26,100;
·        31 March 2020 – 1 July 2020 – nil;
·        2 July 2020 – 25 June 2021 (51 weeks) @ $450 a week = $22,950;
·        26 June 2021 – 10 October 2021 – nil, and
·        11 October 2021 – 17 November 2022 (58 weeks) @ $450 a week = $26,100.
[7] These periods reflect the first and second Covid lockdowns.
I allow past loss of superannuation at 11% in the sum of $8,564.
I allow the sum of $121 in accordance with s 4.5(1)(d) of the MAI Act (Fox v Wood).
The parties agree that the claimant is entitled to interest on past economic loss in the sum of $2,136. I award that amount.

Future economic loss

The claimant submits that there is no satisfactory evidence to support a finding that she has any residual capacity on the open employment market, now or in the future. In this regard, it is noted that the claimant was given a poor prognosis by Dr Rastogi, and her condition has not improved in the four years since the accident. She argues that there is no rational evidential basis for a finding that her condition will improve in the future.
In terms of her most likely future circumstances but for injury, the claimant submits that she would have remained in Australia and would either have worked as an engineer, or pursued her pre-accident intention to work as a manicurist/beautician. It is argued that, whilst the levels of remuneration of engineers vary widely and cannot be predicted with certainty, they are at least commensurate with (and more likely exceed) the earnings of manicurists/beauticians. The claimant submits that seek.com.au identifies an average annual salary of engineers in Australia in the range of $95,000 to $115,000 a year ($1,354 to $1,589 a week) based on its job ad data. She submits that this is broadly commensurate with the mid-range remuneration of manicurists/beauticians cited by Mr Sidhwa in his report, and marginally above average weekly earnings, $1,350 net a week.
It is submitted that, in all of the circumstances, it is reasonable to assess the claimant’s uninjured earning capacity at not less than $1,500 net per week irrespective of which of these career paths she would have followed. She argues that this sum is reasonable given her demonstrated intelligence and work ethic, her stated intentions, and the evidence as to earnings tendered in her case.
The claimant seeks an award for future economic loss in the sum of $1,170,328, comprised as follows:
·        1 year @ $500 a week x 50.9 = $25,450;
·        30 years @$1,500 a week x 0.952 x 822 less 15% = $997,743, and
·        superannuation @ 14.38% = $147,135.
The claimant submits that she plainly has no desire to return to Korea and it is reasonable to find that she would have done all she could to remain in Australia but for the accident. It is argued that the evidence of Ms Byers is important in this regard because it establishes that the claimant had a pathway to permanent residency and so her desire to remain here could have been realised. It is argued that the only reasonable finding is that the claimant would have pursued this option.
In the unlikely event that she would have returned to Korea, the claimant submits that her Korean earnings from a decade ago, when she was 26 years old, do not reflect her uninjured earning capacity in that country given that: her position at that time was not commensurate with her engineering qualification, those earnings do not take account of wage inflation[8], she would have returned to Korea with superior qualifications, and she has demonstrated that she is a woman who was motivated to improve herself. She argues that, on any view of it, the assessment of an uninjured capacity of around $1,500 net per week is reasonable. It is implicit from her schedule of damages that the claimant’s case is that, but for the accident, she would have worked until she was 67 years of age.
[8] The claimant’s submissions dated 11 November 2022 at [37] state “…that those earnings do take account of wage inflation…”. I have assumed that the word “not” has been inadvertently omitted.
The insurer argues that despite attempts to establish a different narrative, it is clear that at the time of the accident the claimant had studied a number of different courses, and had the accident not occurred, she would have continued to study in order to stay in Australia in any event, probably with a view to returning to Korea. In that context, it is argued that the claimant’s most likely circumstances have not altered as a result of the accident.
The insurer submits that despite having been in Australia for a number of years, the claimant had not made any steps to ascertain how she might be able to stay in Australia on a permanent basis. It is argued that the evidence does not permit a finding that she would have been able to stay in Australia in any event.
The insurer accepts that the claimant’s most likely circumstances but for the injury are that she would have continued to work as a manicurist, or in a similar role on a part-time basis, whilst she continued to study until such time as she left Australia. In this context, the insurer submits that at worst there may be some loss associated with a delay in the claimant re-entering the workforce if its accepted that she has any ongoing reduced work capacity.
The insurer argues that the claimant plainly has the capacity to work in a sedentary role with appropriate postural breaks, including as a manicurist, mechanical engineer draft person, customer services officer or video editing and graphic designer, as suggested by Ms Stewart.
It is submitted that, as a potential business owner, the claimant would not be required to perform manicurist and beautician type duties all day because her duties would also involve supervision, arranging appointments and paperwork. The insurer submits that an appropriate allowance for future economic loss is a buffer of $75,000.
Section 4.7 of the MAI Act must be addressed when assessing future economic loss. The provision is in the following terms:
“4.7 Future economic loss—claimant’s prospects and adjustments
(1)     Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2)     The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3)     If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
The claimant relies on a report from Michaela Byers, an immigration lawyer. The possible path to permanent residency identified by Ms Byers rests on the claimant completing a Masters Degree in Mechanical Engineering. I am not persuaded, on the balance of probabilities, that the claimant would have enrolled in a Masters degree. Until Ms Byers’ opinion came to hand she had not considered enrolling in a Masters course. As submitted by the insurer, the claimant does not appear to have expressed any interest in revisiting engineering since coming to Australia, until after Ms Byers’ report was obtained.
Further, even accounting for the possibility that she would have been eligible to enrol in the Masters course, accepted into the course, and completed the course, the path to obtaining residency was, while possible, not probable nor likely. While I accept that it is possible that the claimant would have found a path to residency in Australia, I am not persuaded that this accords with her most likely future circumstances but for the accident.
While the claimant’s evidence is that her husband has been offered sponsorship to work in Australia, I have no evidence before me with respect to the terms of the offer, nor the likely duration of employment.
While I accept the claimant’s evidence that prior to the accident she wanted to remain in Australia, I am not satisfied, on balance, that this would have come to pass.
I am not satisfied that the claimant’s most likely future circumstances are that she would have remained in Australia and worked as an engineer, a manicurist/beautician or established her own business.
I find that the claimant’s most likely future circumstances but for the injuries are that she would have returned to live and work in Korea and that this would have occurred in the next two years. I find that in the two years during which she remained in Australia, her most likely future circumstances are that she would have remained on a student visa and undertaken courses similar to those she has undertaken since arriving in Australia. I find that during this time she would have been limited to working, and would have worked, 20 hours a week and that she would have continued to work as a manicurist.
I find that but for her injuries the claimant’s most likely future circumstances are that she would have worked, on a full time basis, as a customer care representative, or in a similar role, in Korea.
I am satisfied that, but for the injuries sustained in the accident, the claimant would have worked until she turned 67 years of age.
As to her likely earnings but for her accident caused injuries, given my findings that her most likely future circumstances are that she would have returned to Korea, the earnings contained in Mr Sidhwa’s report do not assist me. Nor, for the same reasons, do the earnings referred to in the VCC report.
I find that, before she came to Australia, the claimant earned the equivalent of $742 net a week as a customer care representative in Korea. Her evidence, and her tax records, support this finding. I accept the claimant’s submission that those earnings do not reflect her uninjured earning capacity in Korea. These are earnings from a decade ago. They do not take account of the additional qualification she obtained in Australia. Nor do they reflect wage increases that the claimant was likely to receive. Having acknowledged these limitations, I do not have evidence available to me as to the claimant’s likely earnings in Korea.
Given my findings as to the injuries the claimant sustained as a result of the accident, and her consequential loss of capacity, I do not accept the insurer’s submission that a buffer of $75,000 should be allowed. In my assessment, such an allowance would not come close to adequately compensating the claimant for the financial loss that will flow from her loss of capacity to earn. Further, while I have given consideration to awarding a buffer, I do not think a buffer award would provide an appropriate level of transparency to my assessment of the claimant’s damages for future economic loss.

The claimant’s submissions draw my attention to Heydon JA’s decision in State of NSW v Moss [2000] NSWCA 13, in particular his statement that, even where there are deficiencies in the materials advanced, where earning capacity has unquestionably been reduced but its extent is difficult to assess, the obligation to assess the loss cannot be shirked. The claimant’s submissions also acknowledge that the assessment of her uninjured earning capacity is somewhat impressionistic and necessarily involves a tolerable degree of imprecision that should be guided by the tendered evidence as to her potential earnings.
I have found that the claimant’s most likely future circumstances but for the injuries sustained in the accident are that she would have remained in Australia for a period of a further two years before returning to Korea to live and work. I have found that she would have remained on a student visa during this time, and that she would have worked as a manicurist 20 hours a week. During this time, I find that she would have earned $450 net a week, in line with her pre-accident earnings. On these assumptions, I make an allowance of $44,730 for this period (the first period), calculated as follows:
· $450 x 99.4 (multiplier for two years) = $44,730
Given the short period, I do not propose to reduce the award for the first period to reflect vicissitudes.
I allow a loss of superannuation in relation to this period in the sum of $5,605 ($44,730 x 12.53%).
Thereafter, I allow $928 net a week for 29 years (the second period) less 15% for vicissitudes. The weekly amount of $928 represents a 25% increase in the claimant’s earnings in Korea ($742) to reflect incremental wage rises. This results in an award of $579,222[9] for the second period.
[9] $928 x 0.907 (deferred multiplier for 2 years) x 809.6 (multiplier for 29 years) less 15% for vicissitudes.
The parties agree that future loss of superannuation should be calculated at 4.5% of the damages assessed for future loss of earnings in Korea: 4.5% x $579,222 = $26,065. I allow $26,065 for loss of superannuation in the second period.

Assessment of damages summary

Under sub-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.
I assess the claim as follows on the findings set out above:
Non-Economic Loss  $335,000
Economic losses
·         Past loss of earnings (including superannuation)    $86,535
·          Future loss of earnings (including superannuation) $655,622
Total of economic losses and non-economic loss            $1,077,157
Interest on past economic loss  $2,136
Total Damages Assessed   $1,079,293
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, statutory benefits paid to the claimant in the sum of $66,546.21.[10]
[10] This sum is agreed between the parties.

costs

The insurer is to pay the claimant’s costs and disbursements in the agreed sum of $82,146.94 inclusive of GST.

[2022] NSWPIC 671

6 December 2022