Zhao v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zhao v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 624
CLAIMANT:	Rui Qi Zhao
INSURER:	Insurance Australia Limited trading as NRMA
MEMBER:	Terence Stern OAM
DATE OF DECISION:	7 November 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant was injured in a motor vehicle accident on 8 June 2019; the insurer wholly admitted liability for the claim; assessment of damages; dispute about causation and pre-existing injury; Watts v Rake, Purkess v Crittenden, Dal v Chol, Allianz Australia Insurance Ltd v Kerr, Nominal Defendant v Livaja, and Penrith City Council v Parks applied; Held – buffer for past and future economic loss assessed at $150,000.00; claimant’s costs assessed at $32,626.18 inclusive of GST.
DETERMINATIONS MADE:	CERTIFICATE 1. The insurer admits it owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury, loss and damage because of that breach of duty. 2. Under ss 7.36(3) and 7.36(4) of the Motor Accident Injuries Act 2017, I assess the amount of damages for this claim as $150,000.

STATEMENT OF REASONS

INTRODUCTION

Rui Qi Zhao (the claimant) was born in 1969.
She was involved in a motor vehicle accident on 8 June 2019 (the accident) suffering injury to the neck, shoulders, knees and feet, with a psychological injury.
At the time of the accident, the claimant was not working due to a post-traumatic stress disorder caused by a pre-accident armed robbery.
The claimant was self-employed operating her own mixed business, Rui Pty Limited. She alleges that but for the accident, she would have returned to work by December 2019, one year after the pre- accident armed robbery.
She made a claim for damages on the CTP insurer of the at fault driver, Insurance Australia Limited, ABN 11 000 016 722, trading as NRMA (NRMA) under the Motor Accident Injuries Act 2017 (the MAI Act).
NRMA accepted liability for the claim on 2 March 2021. By admitting liability, NRMA accepted that:
(a)    the insured driver owed the claimant a duty of care;
(b)    the insured driver breached that duty of care, and
(c)    the claimant suffered some injury, loss or damage as a consequence of the insured's driver's breach of the duty owed.
A dispute has arisen. The claimant has referred that dispute to the Personal Injury Commission (Commission) and it has been allocated to me for determination.
The issues in dispute are:
(a)    would the claimant have returned to her duties by about December 2019, one year after the pre-accident armed robbery, notwithstanding her involvement in the accident;
(b)    did her injuries caused by the accident impact on her ability to operate her business;
(c)    did the claimant sustain losses due to the accident, and
(d)    what is her earning capacity as a result of the accident injuries.
I held a preliminary conference in this matter on 4 April 2024 and after discussion with the parties, held an assessment conference on 26 September 2024.

THE CLAIMANT’S STATEMENT

In her statement of 4 March 2024, the claimant gave a history of the accident:
“4.     On 8 June 2019 I was injured in a motor vehicle accident. I was waiting to turn at a green light from McEvoy Street to Botany Road, Alexandria and travelling fairly slowly when another vehicle collided with me from behind. The other car hit the back right hand side of my car.
5.      I immediately felt extremely shocked and shaken. The impact from the other vehicle was very forceful and I lost control of the steering wheel. I blacked out very briefly. I parked my car on the left hand side of the road and got out to exchange details with the other driver. I was still trembling and feeling very shocked at the time. The other driver was very rude and aggressive and started to argue with me. This did not help my situation at all and my heart was racing. Eventually the police came and helped me. The accident was reported to Botany Bay Highway Patrol.
6.      I was then taken by Ambulance to Royal Prince Alfred Hospital. At the time I started to have a headache, my neck and thoracic spine felt sore and I felt pain in my left arm. The left side of my chest was also really sore. I also began to feel numbness and pins and needles in my both hands.
7.      I stayed at the hospital for about 5 hours and they performed an EEG. I was told that my heart was fine and I should rest at home. I was also recommended some medication.
8.      For the next three days I rested at home. The pain in my neck increased and I had severe headaches very day. The pain spread from the top of my back/neck upwards into the base of my head. I went to see my GP, Dr Vago about a week later and he recommended a special pillow for my neck. This did not help.
9.      After this time my neck and both arms continued to be painful. I also suffered from ongoing headaches and pins and needles in both hands. I also had chest pain. Prior to the accident I had suffered from headaches, however, they were nowhere near as severe or frequent. The headaches were very painful and occurring on a daily basis.”
She continued at [16]:
“16. On 17 December 2018 I was working at a corner store as a retail assistant when I was robbed at gunpoint. This was extremely confronting and very frightening for me. As a result of this I sought treatment with a psychologist, Mr Muhamad Ziedni and I was diagnosed with PTSD.
17.    After the robbery I also started to experience pain in heart/chest. I was referred for many tests and to a cardiologist, Dr Charbel Nehme and I was assured that this was not a physical problem. I was advised that is was likely a psychological response to the trauma of the robbery.
18.    There was actually a second robbery which occurred at the corner store on 25 May 2019. Th is exacerbated the psychiatric problems that I was already experiencing from the first robbery.
19.    The subject motor vehicle accident occurred a short time after this. As a result of the accident, I felt the same very frightening feelings and sensations. I felt extremely shocked and anxious, and I also suffered racing of my heart and chest pain.
20.    I had treatment from a psychologist Mr Ziedni for a significant period of time after this.
21.    I still have significant psychiatric symptoms. I am constantly anxious and stressed about my physical condition. I feel frustrated and hopeless, and I have a lack of motivation and energy. I feel as though my body is failing me as a result of the injury and that everything is hopeless and pointless.
22.    I have difficulty sleeping and occasional nightmares about the accident.
23.    I still think about the accident constantly and I am too anxious to drive. I have tried to drive short distances, however become sweaty and shaky.
24.    I continue to feel stressed and fearful. I have difficulty leaving the house due to fear. My hands are constantly shaking when I go out.
25.    I also constantly wake up at night and think about the car accident and my injuries. I still have pain in my neck, shoulders, occasional dizziness and headaches.”

SUBMISSIONS

CLAIMANT’S SUBMISSIONS, DATED 1 JUNE 2024

The claimant’s submissions of 1 June 2024 are summarised below by reference to paragraph number:
[1]    The claimant (DOB 1969) is a 54 year old business owner who alleges injuries to the neck, shoulders, knees and feet, together with a psychological injury, as a result of an accident that occurred on 8 June 2019.
[2]    The claimant had a pre-existing psychological condition sustained from a robbery. This occurred in 2018. Fortunately, she managed to get herself back to employment (albeit with restrictions) prior to the accident.
[3]    There was another robbery that occurred in the weeks before the accident. However, she was not present for that. That event can be put to one side.
[4]    The accident was traumatic. The claimant says (Statement dated 4 March 2024, para 5) that she: “felt extremely shocked and shaken. The impact from the other vehicle was very forceful and [she] lost control of the steering wheel. [she] blacked out very briefly…….[she] was still trembling and feeling very shocked at the time…”.
[5]    The Discharge Summary notes that the claimant developed chest pain 30 minutes after the accident, mild dizziness and pins and needs to the fingers. It was noted that in relation to the chest pain “she had this pain once before after house was robbed saw psychologist who thought it was somatic, had CT chest which was verbally NAD”.
[6]    The claimant’s physical symptoms became more significant following the accident. Dr Dan (report dated 30 November 2019) recommended cervical decompression and fusion at the C6/7 level.
[7]    The report of Dr Wallace (dated 15 October 2020) should not be accepted. It is not binding in the damages claim: Pham v Shui [2006] NSWCA 373.
[8]    Nor is it persuasive as:
i. It was prepared solely for the purposes of a “minor” (sic, threshold) injury dispute; and
ii. is irrelevant since the claimant has a non-threshold injury for psychological purposes (Certificate of Medical Assessor Samuels dated 12 October 2020); and
iii. he has ignored the common law principles of causation set out in State Government Insurance Commission (Western Australia) v Oakley (1990) 10 MVR 570.
[9]    The psychological symptoms are also significant. Both the claimant and her son state that her symptoms got worse following the accident… objectively speaking, the most obvious form that took was a fear and evasion of driving and long-term absenteeism from employment.
[10]     The claimant is unlikely to ever return to employment again. She will remain in receipt of treatment for the remainder of her years.
Part A: Medical evidence
[11]     The claimant had a significant psychological injury prior to the accident. However, that was being treated and was of less severity than it is now.
[12]     The defendant attaches numerous documents pertaining to the claimant’s pre-existing conditions/complaints. However, that does not assist. The defendant took the claimant as they found her: Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396.
[13]     The claimant’s long-term psychologist explained the effects of the motor accident as follows (report dated 19 August 2024):
“The accident clearly has impacted upon her mentality and her functioning. The impact has been significantly negative in many areas of her life, mainly her capacity to work and capacity to drive. She is no longer able to drive for the fear of another accident. She reported difficulty to relax, to sit or stand for long, restlessness and difficulties concentrating in her daily activities. She has extreme sleep disturbances. She reported she easily gets upset, cries without reason or became easily agitated. She doesn’t like to talk about the accident and shows tendency to avoid any cues and reminders of the accident. Ms Zhao preferably has chosen not to be in the car or to go anywhere if she is not forced to do since the accident.
Ms. Zhao states that she has negative expectation regarding her future, her physical health and her small business that she tried to maintain. She explained that the accident has had a negative impact on her contact with others since she is now less mobile and avoid to travel. The car accident also has had a negative social outcome with people since she has become nervous and short-tempered. She has a disturbed sleeping pattern and get little or no rest which results in an extremely low tolerance threshold for normal, every-day stressors. She has poor self-confidence, over-cautious and has become hypervigilance in her action /activity which do not enable to her to participate in social activities of any kind.
Ms. Zhao described she has nightmares, sleep disturbance, flashbacks and panic attacks with heavy breathing, profuse sweating and chest pains, particularly at night. She has painful memories of the event during and after the accident and flash back of accidents moments. She has poor concentration and the feeling of sickness and the fear of not able to maintain self-care and being as healthy as she was before the accident. She seeks help for her stress in order to cope with her painful memories of the accident. She still suffers from irregular heartbeat. Her accident has had negative effects on her mood turning her to be anxious and depressed. She continues to access psychological treatment in order to deal with her painful memories and other residual symptoms of posttraumatic stress disorder. She has problem with impulse control and is chronically exhausted.
Ms Zhao’s shows the symptoms of PTSD which should be considered.”
[14]     Whilst Dr Teoh’s opinion is somewhat confusing, he concludes unequivocally that the motor vehicle accident aggravated her underlying state. He certified her as having a Class 5 impairment for employability.
[15]     Assessor Samuels provided a certificate dated 12 October 2020. Whilst it is not binding, he accepted that the claimant had a non-minor injury and said (page 7): Ms Ruiqi Zhao is a 51 year old woman with a pre-existing history of pain problems and cardiac symptoms. She was the victim of two armed robberies in late 2018 and early 2019. At the time of the accident on 8 June 2019 she had been referred to a psychologist, Mr Ziedni. She was experiencing some posttraumatic symptoms and was finding it quite hard to go out. Ms Zhao feels that since the accident she is more fearful about going out, that her chronic pain has worsened and that she is unable to drive. On mental status examination, she was highly anxious and hyperventilating, her symptoms were somewhat vague and non-specific, but she was complaining of dreaming related to the accident and the robberies and she said she was depressed, finding it hard to go outside, finding it hard to drive and unable to work. In terms of a DSM-5 diagnosis, it does seem that Ms Zhao had developed Post Traumatic Stress Disorder and chronic pain symptoms before the subject accident, and these have worsened since that time.
[16]     Medical Assessor Roberts also examined the claimant. On page 9 he found that the claimant sustained a Somatic Symptom Disorder and Persistent Depressive Disorder with Pure Dysthymic Syndrome.
[17]     Importantly, he deducted only 1% WPI for the effects of the pre-existing PTSD condition.
[18]     The defendant disagrees with the above. However, there is no persuasive evidence to justify the rejection of the above experts.
[19]     As was said in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174 at 62: “…save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal. Unless it can be discounted for other good reasons…[w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other”.
[20]     The defendant has included Dr Vickery’s report in the Reply. However, it has been separately communicated to the claimant’s representatives that Dr Vickery’s report will not be relied upon (for reasons relating to his practicing restrictions).
[21]     On the basis of that concession, the claimant attended a further appointment with Dr Bisht. Again, however, the defendant has communicated that that report will not be relied on.
[22]     Jones v Dunkel inferences must be drawn.
[23]     The defendant has the onus of “disentangling” any competing causes of incapacity (Watts v Rake [1960] HCA 58). It is not clear how it contends that can be done without a suitably qualified expert.
[24]     Presumably, it seeks to rely on the opinions of Dr Bratten to support its contention.
[25]     The difficulty with that however is that:
(a)the history provided to him in relation to the accident was brief (pg2); and
(b)the examination occurred only 12 months following the accident; and
(c)the opinion is four years old; and
(d)the doctor had not had the benefit of opinions from Dr Teoh, Medical Assessor Samuels, and Dr Roberts.
Part B: Quantum
[31]     It is apparent that the claimant was earning income in her business in the years prior to the subject accident. It is also apparent that the claimant was not earning income in the years following it.
[32]     That on its own is enough to establish past and future economic loss of some magnitude.
[33]     Damages are recoverable for the loss of capacity to earn income, not for the loss of wages or salary: Paff v Speed (1961) 105 CLR 549 at 566.
[34]     In Youni v Martini (NSWCA) Priestley, Powell JJA, 21 March 1995, unreported, the Court held that the claimant was entitled to be compensated for an economic result that could result “unless, on the material before the Court, it can be seen very confidently that notwithstanding the loss of capacity the claimant will not suffer damage of the economic kind because of the loss of capacity.”
[35]     The claimant submits that the capacity she has lost is the capacity to work in an unskilled fashion as a retail provider, customer service worker, machine operator, process worker, or some other unskilled type of occupation.
[36]     Given her experience, she would have been capable of demanding at least average wages over the years. Presently that is around $1,400 net per week.
[37]     A blended claim in the past is made at the rate of say $1,200 net per week from the date of the accident to the date of the hearing, together with superannuation at 11%.
[38]     This results in the following calculation $1,200 x 277 weeks x 1.11 = $370,000 (rounded).
[39]     Thereafter, a claim is made at the rate of $1,400 net per week to age 70, albeit higher vicissitudes should apply. This results in $1,400 x 473.9 x 0.80 (vicissitudes) x 1.1426 (superannuation) = $605,000 (rounded).
[40]     It is assumed that no tax has been paid by the defendant. However, the claimant reserves the right to make such a claim if this assumption is incorrect.
[41]     If the Member is not minded to make an assessment on the basis of a weekly calculation, he still must assess something: New South Wales v Moss [2000] NSWCA 133.
[42]     A buffer would then be appropriate. The following cases should be borne in mind.
(a)Leichhardt Municipal Council v Montgomery [2005] NSWCA 432: The trial judge allowed a buffer of $160,000 for future economic loss, for a middle aged water proofer who was not employed at the time of the accident, and had otherwise returned to work following the accident, albeit with restrictions.
(b)Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 24: The Court of Appeal upheld a CARS Assessor’s award of $75,000 for past economic loss and $400,000 for future economic loss for a doctor.
(c)Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579: The court upheld past economic loss of $300,000 and future economic loss of $150,000.
(d)QBE Insurance (Australia) Ltd v Volokhova [2014] NSWSC 726: the Court upheld a CARS Assessor’s award of $500,000 for future economic loss for a lawyer.
(e)NRMA Insurance Ltd v Buckley [2016] NSWSC 475: the court allowed economic loss on the basis of a weekly figure and a buffer for future early retirement ($100,000).
[43]     The claimant has lost the capacity to drive. A buffer claim in the amount of $5,000 is made in this regard.
[44]     The following Schedule of Damages results:
(a)past economic loss - $370, 000
(b)future economic loss - $605,000
(c)travel - $5,000
(d)total - $980,000

NRMA’S COMMISSION’S DAMAGES REPLY SUBMISSIONS, DATED 13 MARCH 2024

NRMA’s submissions are summarised below by reference to paragraph number:
[1] The claimant is a 54-year-old female born on 10 September 1969.
[2] As a result of the accident, the claimant alleges sustaining a psychological injury, aggravation of her existing Post-Traumatic Stress Disorder and an injury to the cervical spine.
[3] At the time of the accident, the claimant was not working due to the post-traumatic stress disorder caused by the pre-accident armed robbery.
[4] The claimant is self-employed operating her own mixed business, Rui Pty Limited. The claimant alleges she would have returned to work by December 2019, one year after the pre- accident armed robbery.
[5] Due to her psychological injury and an aggravation of her pre-existing psychiatric condition, the claimant alleges she has been unable to work since the accident and has incurred a total of $366,869.50 in business losses until the 2023 financial year.
[6] The claimant has not returned to any work since the accident and alleges this is solely due to the accident.
[7] No liability issues arise as NRMA have wholly admitted liability.
[8] The claimant's whole person impairment has been assessed below the threshold by Medical Assessor Samson Roberts, Psychiatrist, dated 13 December 2022. Medical Assessor Roberts diagnoses the claimant with persistent depressive disorder with pure dysthymic syndrome. Medical Assessor Roberts assesses whole person impairment at 6%.
Part A: Issues
[9] The following issues arise:
(a)     Would the claimant have returned to her duties by December 2019, one year after the pre-accident armed robbery, notwithstanding the claimant's involvement in the subject accident?
(b)     Did the claimant's subject accident injuries impact on the claimant's ability to operate her business Rui Pty Limited?
(c)     Did the claimant's business sustain losses solely due to the claimant's subject accident injuries?
(d)     What is the claimant's residual earning capacity as a result of the accident injuries?
Part B: Non-economic loss
[10] The claimant does not advance a claim for damages for non-economic loss.
[11] NRMA agrees and submits no allowance should be made. Past economic loss
[12] The claimant was involved in an armed robbery on 17 December 2018, six months prior to the accident.
[13] The claimant developed post-traumatic stress disorder as a result of the armed robbery.
[14] At the time of the accident, the claimant was self-employed and operating her own mixed business, Rui Pty Limited.
[15] At the time of the accident, the claimant was not working in her business due to the Post Traumatic Stress Disorder caused by the pre-accident armed robbery.
[16] The claimant alleges she would have returned to work by December 2019, one year after the pre-accident armed robbery notwithstanding the claimant's involvement in the subject accident.
[17] In the claimant's Schedule of Damages, dated 8 May 2023, the claimant claims:
(a)     $275,152.15, being 75% of the total business losses sustained in the 2020 to 2023 Financial Years;
(b)     loss of superannuation on the claimant's wages of $13,400 per annum at a rate of 9.5% which totals $13,832, and
(c)     the claim totals $288,984.15.
[18] NRMA submits the claimant's claim for total business losses should fail for the following reasons:
(a)    Medical evidence – NRMA highlights and relies on the following medical evidence regarding the claimant's earning capacity:

Expert	Opinion
Dr Graham Vickery, psychiatrist, dated 11 May 2021	Diagnoses of Post Traumatic Stress Disorder due to the robbery in December 2019 and Somatic Symptom Disorder and Chronic Adjustment Disorder due to personal stressors. The claimant did not sustain any DSM5 psychiatric condition due to the motor vehicle accident.
Medical Assessor Samson Roberts, psychiatrist, dated 8 November 2022	Diagnosis of an aggravation of pre-existing PTSD, persistent depressive disorder and somatic symptom disorder. The claimant was moderately impaired for employment, prior to the accident, arising from the robbery which resulted in a reduction in her role and work hours. Since the accident, the claimant's participation in her business was markedly diminished and inconsistent. Her symptoms indicate moderate impairment for employment.

(b) NRMA provides a summary of the claimant's complete suite of individual tax returns below and submits:
(i)The claimant's individual tax returns demonstrate she earned an average salary of approximately $36,000 gross per annum since the 2016 financial year.
(ii)The claimant's individual tax returns depict a dip following the pre-accident armed robbery but then a steady incline returning to base level from the 2020 financial year, which NRMA submits is related to the pre-accident armed robbery rather than her accident injuries.
(iii)The claimant's individual tax returns depict she earned an average salary of approximately $36,000 gross per annum since the 2016 financial year and post-accident. NRMA submits the claimant's earnings pre and post-accident has not changed and Member Stern should accept the claimant's income derived from her personal income has not changed because of the accident injuries.

(c) NRMA provides a summary of the tax returns of the claimant's company, Rui Pty Ltd, and submits:
(i) The claimant's business has not generated any profit in any of the financial years from 2015 to 2023 except for the 2017 financial year where the total profit generated was $419.
(ii) The company has continued generated a significant increase in losses post- accident, which NRMA submits is attributed to the impact of the COVID-19 pandemic and other unrelated factors and not because of the claimant's accident-related injuries.

(d) NRMA relies on the reports by its expert, Mr Matthew Gwynne, PKF, dated
16 August 2023 and 18 January 2024 and submits that the claimant did not sustain any business losses as a result of the accident for the following reasons:
(i) The pre-accident robbery in December 2018 would have impacted on the operation of the business given the claimant was already moderately impaired for employment, prior to the accident.
(ii) The company tax returns and financial statements of Rui Pty Ltd demonstrate the claimant's business did not generate any profits for the 2015 to 2016 and 2018 Financial Years. NRMA submits the claimant's business was trading at a loss prior to the accident.
(iii) The business ceased trading by May 2022 and recommenced at a different premises in or around October 2022. NRMA submits the relocation costs and, in turn the increased operating expenses, are unrelated to the accident and have caused the losses particularised by the claimant for the period May 2022 to October 2022 to be overstated.
(iv) The claimant's business received COVID-19 related support benefits and government subsidies in the 2020 to 2022 Financial Years. NRMA submits the claimant's business was adversely affected by COVID-19, which the claimant has not considered, and NRMA submits this should be factored into any assessment of past economic loss.
(v) The business wrote off significant levels of stock which accounts for the significant increase in business losses in the post-accident years of 2021 to 2031 financial years. NRMA submits there is no evidence served which demonstrates the write off of stock is any way related to the claimant's accident injuries.
(vi) NRMA submits there are no further costs associated in the business which would have resulted from the accident i.e. there is no increase in salaries or replacement labour relating to any need to replace the claimant operating in the business which would then be a factor in considering an increase in business losses which means the business losses are not related to the accident.
(vii) NRMA submits that the accident was not the cause of the claimed business losses.

[19] NRMA submits the claimant's claim for loss of superannuation on the claimant's wages of $13,400 per annum at a rate of 9.5% which totals $13,832, should fail for the following reasons:
(a)     The claimant claims 75% of the total business losses sustained in the 2020 to 2023 Financial Years, which does not relate to the claimant's income derived from personal exertion.
(b)     The claimant's renumeration is somewhat discretionary because the claimant is the sole director of the company and any profits derived are solely up to her discretion. This means the claimant's superannuation payment is solely up to her discretion as well. And as the claimant is self-employed, she cannot claim for past superannuation.
(c)     The claimant's income depicted in her tax returns have not changed since the accident to substantiate any losses arising to sound in a claim for past superannuation.
[20] NRMA submits a buffer allowance of $10,000 for any losses derived from personal exertion is appropriate as the medical evidence shows the claimant was already moderately impaired for employment prior to the accident and the financial records of Rui Pty Ltd do not demonstrate any business losses arising from the accident. Future economic loss
[21] In the claimant's Schedule of Damages dated 8 May 2023, the claimant claims:
(a)     Loss of $1,038.75 net per week (being 75% of the claimant's actual average weekly earnings of $1,385 net per week) for the next 10 years discounted by 15% for vicissitudes which totals $364,564.90.
(b)     14.4% for future superannuation loss in the sum of $52,497.35
(c)     The claim totals $417,062.25.
[22] NRMA submits the claimant's claim of $1,038.75 net per week for the remainder of her working life should fail for the following reasons:
(a)     Medical Assessor Roberts determined the claimant was already moderately impaired for employment prior to the accident which has remained unchanged post-accident. Arguably, the claimant has not suffered any impairment to her earning capacity because of the accident.
(b)     The only dip in the claimant's earnings is in the financial years in 2018 and 2019 which include the pre-accident armed robbery. NRMA submits the claimant's individual tax returns in the 2016 to 2017 then 2020 to 2023 financial years depict an average taxable income of $31,599.00 per annum i.e. the claimant's personal exertion income has returned to the baseline level post-accident as it was immediately preceding the pre-accident armed robbery. NRMA submits there is no ongoing loss based on the claimant's individual tax returns.
(c)     It cannot be accepted that the claimant has an ongoing loss of $1,038.75 net per week when the claimant was only deriving an average wage of approximately $30,000 per annum before the accident or approximately $550 average net per week.
(d)     NRMA submits the claimant's individual income has not been impacted from the accident as she has continued to derive an income of approximately $31,000 gross per annum since the accident, which was her pre-accident earnings.
[23] The claimant's claim for 14.4% for future superannuation would fail because the claimant is self-employed and she would continue operating the business, Rui Pty Ltd, regardless of the subject accident.
[24] NRMA submits based on the evidence there is no loss demonstrated because of the accident.
[25] In the alternative, should it be accepted that the subject accident injuries have caused an impact on the claimant's future earning capacity, NRMA submits a buffer allowance of $30,000 for future economic loss, inclusive of superannuation, is appropriate.
Part C: Schedule of Damages
[26] NRMA submits an appropriate schedule of damages is set out below:
(a)    Past economic loss - $10,000
(b)    Past superannuation loss – Nil
(c)    Fox v Wood – Nil
(d)    Future economic loss (including superannuation) - $30,000.

NRMA’S SUBMISSIONS, DATED 12 SEPTEMBER 2024

NRMA’s submissions are summarised below by reference to paragraph number:
Part A: Background
[1.1] The claimant brings a claim for damages arising from injuries she claims occurred in a motor vehicle accident which occurred on 8 June 2019. The claimant asserts that she was driving along Botany Road, Alexandria when the insured driver failed to stop and collided with the rear of her vehicle (subject accident).
[1.2] NRMA has admitted liability for the claim and there is no allegation of contributory negligence.
[1.3] The claimant was born on 10 September 1969 and she is presently 54 years old. She was 49 years old at the time of the subject accident.
[1.4] The claimant is not entitled to damages for non-economic loss. Accordingly, only the measure of damages, specifically past and future economic loss is left to be determined. The claimant is already in receipt of worker's compensation weekly payments at the of the subject accident. It appears that those weekly payments are continuing over five years post-accident.
[1.5] For reasons stated below, NRMA contends that the economic loss claim finds no basis on the evidence.
Part B: Past / Unrelated medical complaints
[2.1] The claimant has a significant pre-accident history. She was the victim of an armed robbery a year prior to the subject accident on 17 June 2018. The claimant was also subject to a robbery some 10 years earlier. NRMA contends that these incidents had, and continue to have, a significant impact upon the claimant’s capacity to function and work from a psychosocial perspective.
[2.2] Aside from the psychological sequelae arising from the robberies, the claimant also suffered from a condition known as “Bond Outgrow”, which caused her to reduce her working hours between December 2017 and June 2018. This appears to relate to a foot spur and plantar fasciitis. [2.3] The claimant also complained of neck pain in 2018, which gave rise to a referral to Professor Noel Dan. An MRI scan revealed multi-level disc bulges.
[2.4] The claimant also experienced chronic bilateral knee pain prior to the subject accident. The claimant’s general practitioner, Dr Leslie Vago completed a Centrelink Medical Certificate dated 27 January 2019 certifying the claimant unfit to work between 13 February 2019 and 13 May 2019 due to bilateral knee pain and a limited ability to walk and weight bear. The prognosis at that stage was stated to be uncertain. An Allied Health Recovery Request dated 27 March 2019 completed by the claimant’s psychologist, Muhamad Ziedni paints a picture of significantly reduced functioning in the months leading up to the subject accident (errors in original):
Client presented with strong emotional and physical reactions, predominantly extreme fears, a great sense of loss, angry, helplessness and hopelessness. She complains about pain to her chest stating that her palpitation has become irregular. She complained that she has loss her sense of safety and security both at home and at work. She reported to lose her trust in those who live in her neighbourhood of her shop and lost trust to her employee. She also reported to loss trust in the authorities. She also reported of lower heartbeat, increases in her pain experience, intrusive memories, nightmares and flashback. Client reported that she is more jittery and easily startled. Her sleep has very disturbed, and she complained of poor concentration and confusion. The robbery incidents have triggered her feelings around her experience of losses in her business and in her losses in her life generally… she reported to withdraw from usual activities both at home and at work such as doing chores and coming to the shop.
[2.5] Mr Ziedni also commented upon the position prior to the robbery (errors in original): Client has a long history of chronic pain syndromes as consequences of work- related injury. At the time of the incident, client reported that she was not able to function normally both at home and at work. She currently lives with her son, aged-17 who sometimes help her. [emphasis added]
[2.6] Prior to the 2018 robbery, Mr Ziedni also states that the claimant was not able to work “due to pain difficulties as consequences of the previous injury”. Furthermore, she had difficulties doing things around the home and could only drive up to a maximum of 10 minutes “because of spine and leg problem” and difficulties turning her head.
[2.7] In a letter prepared by the claimant’s cardiologist, Dr Ghassan Charbel dated
12 February 2019 (two months after being robbed at gun point) the claimant was observed to mobilised with a Rollator “due to her arthritis in the knees”. At that stage
Dr Charbel decided against sending the claimant for functional tests as she was unable to walk on a treadmill.
[2.8] In a letter from Dr Lago to iCare dated 21 July 2021 he observes that the claimant had been diagnosed with Post-Traumatic Stress Disorder a consequence of two robberies.
[2.9] There can be no dispute that the claimant had significant and disabling impairments from a physical and psychological perspective which were severely impacting all aspects of her life prior to the subject accident.
Part C: Accident-related injuries
[3.1] The ambulance attended the scene following the accident. In the Ambulance Report it is noted that the claimant appeared anxious and was complaining of numbness and tingling affecting both hands. She was taken to Royal Prince Alfred Hospital where she presented with left-sided chest pain occurring “after a low-speed MVA”. Investigations were essentially normal and the claimant was discharged with painkilling medication.
[3.2] In the discharge summary, it was noted that the claimant experienced chest pain which was stabbing in nature but not severe, and she had “had this pain once before after house was robbed”. It was noted that she had seen a psychologist who thought that her symptoms were somatic. A history of multiple joint osteoarthritis was also noted.
[3.3] The claimant relies upon the report of Muhamad Ziedni, clinical psychologist dated 17 February 2020. Mr Ziedni noted that he first saw the claimant on 10 February 2019 following ongoing management in relation to her “difficulties dealing with posttraumatic symptoms /reactions following a potentially fatalistic gun point robbery that occurred to her on 17 December 2018 at her workplace”. Relevantly, Mr Ziedni addresses the claimant’s mental state prior to the subject accident: At the time of assessment, your client had not been able to function normally at home and unable to work since 17 December 2018. Your client worked as a small business owner, operating a newsagency at the corner of 22-28 Maddox Street, Alexandria. She experienced a potentially traumatic robbery at gunpoint that occurred at her shop during the night. A second robbery occurred at her shop on 26 May 2019 during the night. There was no one in the shop although the event was captured by CCTV. Both incidents have traumatised her to the point that she was not able to return to work.
[3.4] Mr Ziedni continued: Your client reported pre-existing significant psychiatric symptomatology, psychiatric diagnosis and psychopharmacology therapy in relation to her current anxiety and depressed mood…
[3.5] Mr Ziedni diagnosed the claimant with Post-Traumatic Stress Disorder which was complicated by a reactive depression or non-melancholic depression. NRMA notes that the claimant suffered from PTSD prior to the subject accident.
[3.6] Dr Truls Bratten, psychiatrist prepared a report dated 25 September 2020 at the request of iCare Workers Insurance. The claimant reported that following the robbery in 2018 she experienced the onset of shortness of breath, panic attacks, issues with concentration, and bouts of sweating, low energy and sleep disturbance. The claimant reported feelings of fear even in her home, and triggered by seeing guns in the media and flashback when returning to her store. At the time of the assessment, the claimant was still reportedly involved in the day to day running of the business, attending the store two to three times per week, albeit for brief periods of time. At the time of
Dr Bratten’s assessment the claimant reported that she continued to look after the administrative part of the shop and salaries of the employees.
[3.7] Dr Bratten diagnosed the claimant with Post-Traumatic Stress Disorder as a consequence of the robbery. on the question as to whether the subject accident had an impact upon that condition, Dr Bratten had the following to say: Ms Zhao is suffering from PTSD. She stated that a 2019 motor vehicle accident aggravated her symptoms but was unable to give specific examples. There appears to be no other direct correlation to her core PTSD symptoms and any other medical conditions. … In my opinion the robbery is the predominant cause of the condition.
[3.8] Dr Bratten was optimistic that the claimant’s Post-Traumatic Stress Disorder could be treated with a graduated return to work program.
[3.9] Dr Ben Teoh, psychiatrist has provided his report dated 20 February 2021. Interestingly, the claimant reported to Dr Teoh that she last worked in July 2018.
Dr Teoh diagnosed the claimant with a Panic Disorder arising from the subject accident. Dr Teoh acknowledged that the claimant had been diagnosed with Post-Traumatic Stress Disorder arising from the robbery on 17 December 2018, although he does not appear to take a detailed history with respect to how that impacted the claimant’s function at the time of the subject accident. Although Dr Teoh expresses the view that the subject accident aggravated the claimant’s pre-existing psychological conditions again he does not articulate how that is so. Dr Teoh assessed 15% whole person impairment.
[3.10] Dr Teoh provided a supplementary report dated 1 March 2021. Curiously, on this occasion Dr Teoh expresses the view that the claimant “is fit for suitable duties from a psychiatric perspective”. He does not articulate what constitutes “suitable duties”. Inconsistently, he then goes on to state: Her incapacity is largely caused by a pre-existing psychiatric condition, and because of her physical condition. She had a knee injury, and she stopped working in 2018. On the balance of probabilities, her capacity to work in the future would be affected as a result of her condition. She has persistent anxiety symptoms with acute anxiety attacks and avoidant behaviour. She has lost her confidence, and she is concerned about further accidents.
[3.11] Dr Teoh assessed 9% whole person impairment on this occasion (after a deduction of 2% for pre-existing psychiatric impairment).
[3.12] The claimant reported to Medical Assessor Roberts that after her shop was robbed for the second time in December 2018, she did not return to the shop for a month. When she did ultimately return, she did not provide customer service and never worked behind the counter. Instead, she would help with other tasks. Not only did she become scared of being in her own shop, she was also afraid of being in other shops where there was only one person employed. Her outings therefore became restricted to larger shops or medical appointments. The robbery which occurred in December 2018 was clearly a significant event. Medical Assessor Roberts recorded the following history: … it occurred six months prior to the motor accident. She had gone to her shop to organise an interview with staff. The morning shift had finished and the afternoon staff had only been present for ten minutes. Two men with masks, gloves and guns entered the shop and threatened her for cash and cigarettes. She was working on the cash register at the time. She gave them cash and cigarettes and after which she called the police. No one sustained injuries and the perpetrators were apprehended two days later.
[3.13] The claimant denied that the first robbery still had an impact upon her, but the second accident did: With respect to the second robbery, Ms Zhao stated that her heart “stopped completely”. As a result of the robbery, she became scared of being in her shop and scared at night generally. She has come to fear that she could be the subject of further robberies. Since that time when she has gone to her shop, she would not sit behind the cashier. She sits at a table at which customers can use the internet. She referred to this table being positioned in such a way that she could quickly escape in the event of a further robbery. Generally, Ms Zhao has become very careful. She is wary of people. She will not go out in the dark. If she has to go out, she prefers to be amongst people even strangers because she perceives this as safer. Ms Zhao reported that there has been no change in these symptoms. She attributed this to being constantly reminded of the robbery. She is also of the belief that the thieves were due for release in December 2022 and she is therefore afraid. Ms Zhao stated that she thinks about the robbery although she does not want to…
[3.14] Medical Assessor Roberts confirmed that the claimant was suffering from PostTraumatic Stress Disorder prior to the subject accident as a consequence of the armed robbery. However, he considered that it was also apparent that the claimant suffers from a Somatic Symptoms Disorder characterised by a disproportionate focus on her physical condition and pre-occupation with the effects of her physical symptomology. Medical Assessor Roberts diagnosed the claimant with Persistent Depressive Disorder with Pure Dysthymic Syndrome. Medical Assessor Roberts did not consider that the Pre-existing Post-Traumatic Stress Disorder was altered in any way as a result of the subject accident.
[3.15] Although the claimant reported that she had not returned to drive after the subject accident, Assessor Samson noted that this was inconsistent with her reporting that she would at times follow a car that looked like the insured vehicle, and on one occasion received a speeding ticket in that context. Furthermore, Assessor Samson noted that whilst the claimant reported that there had be no improvement in her physical condition, she also reported that there had been a “major” recent improvement with the reduction in headaches that she was experiencing.
[3.16] NRMA contends that whilst the claimant clearly has ongoing significant psychosocial impairment this is unrelated to the subject accident.
[3.17] NRMA notes that Mr Ziendni has provided a letter to the claimant’s solicitor dated 19 August 2024. Despite his opinions expressed in treating context as to the claimant’s difficulties functioning prior to the subject accident, in that letter he expresses the opinion that the claimant’s “current incapacity was caused by the subject motor vehicle accident”. This opinion is comfortably outweighed by the balance of the evidence (and inconsistent with Mr Ziendni’s own assessment of functioning at the time of the subject accident).
Part D: Economic loss
[4.1] The claimant was born in China and attended school in Nanjing. Before coming to Australia in 1998 she reportedly worked in a warehouse management and advertising design role. The claimant started a newsagency business, Rui Ptd Ltd some 20 years ago.
[4.2] On her claim form, the claimant indicated that she was earning $763 (it is not stated but presumably per week) at the time of the accident. The basis for this asserted pre-accident income is unclear. In the claim form, the claimant describes herself as a self-employed “business woman” for Rui Pty Ltd. The claimant appears to employ three staff members in her business.
[4.3] Mr Ziedni recorded a history that following the subject accident the claimant apparently accessed government support from Centrelink to operate her business. She reportedly employed staff through a job search agency.
[4.4] The claimant has served an Accountant Reference Letter from her accountant Peter Wu dated 5 May 2023. He notes that his firm had been the claimant’s accountant since 2005. The second paragraph of his letter immediately reveals the limitations of his brief: From the information provided by RICKI, she is a sole director of the company RUI since the company was formed in 2004. She had a motor vehicle accident on 08 June 2019 and she has suffered from an injury at this motor vehicle accident. She is not able to work since the motor vehicle accident, and her business RUI has been trading in losses since 2019 till present.
[4.5] Mr Wu relies upon average profit for the 2016 and 2017 tax years in circumstances where the claimant suffered from “Bond Outgrow” in the 2018 tax year which resulted in reduced hours and a consequent operational loss. Mr Wu therefore calculates the following losses which he attributes solely to the subject accident:
(a) 2019 - $67,086.12
(b) 2020 - $137,805.25
(c) 2021 - $189,478.53
(d) 2022 - $55,981.51
(e) 2023 (est) - $52,508.01
[4.6] A fundamental difficulty with Mr Wu’s report is that he appears to disregard the fact that the claimant was already incapacitated for work at the time of the accident.
[4.7] Matthew Gwynne, forensic accountant has prepared a report on behalf of NRMA dated 16 August 2023. Mr Gwynne expresses the view that there is insufficient information that has been provided by the claimant or contained in Mr Wu’s report to determine whether the claimant has suffered a loss, and if so, the extent of that loss.
[4.8] Mr Gwynne observes that the claimant’s reported salary and wages in 2018 was $22,891 which was lower than the two years prior ($36,400) and this was said to be due to the “Bond Outgrow” medical condition. The claimant did not receive any salary and wages from the business in 2019 (the year of the robbery and accident), 2020 or 2021. Mr Gwynne also notes that between 2015 and 2018, total sales revenue was inconsistent ranging from $295,000 to $423,000, and overall in the four full financial years prior to the robbery and accident there was a general decline in revenue and a decline in gross profits.
[4.9] Mr Gwynne makes the following specific criticisms of Mr Wu’s report:
(a) he does not deduct taxes therefore overstating any calculation of loss;
(b) all pre-accident periods are not properly considered;
(c) any superannuation paid on behalf of the claimant is not taken into account when estimating her notional income
(d) he attributes the operating loss incurred by the claimant’s business in the 2019 financial year to the subject accident, however the accident occurred on 8 June 2019 (at the end of the financial year); and prior to that the claimant suffered psychological injuries due to the robbery in December 2018 which may have contributed to the loss;
(e) he attributes the operating loss incurred by the business in the 2020 financial year to the accident, although the claimant would have likely still been out of work for some of that time due to the effects of the robbery;
(f) he has not considered any impact that the COVID-19 pandemic may have had on the claimant’s business; and
(g) he has not identified that the business relocated and whether any associated costs are attributable to the accident. Notably, Mr Wu has acted for the claimant and her company since 2005, yet this issue was not considered.
[4.10]. Mr Gwynne has provided a supplementary report dated 18 January 2024. He observes that the claimant’s average net weekly income for the years 2015 to 2017 averaged $597 net per week over that period. In the 2018 and 2019 tax years, the claimant’s average net weekly income fell significantly, resulting in a weekly loss of $446 and $652 respectively. Losses continued in the 2020 to 2023 tax years. It was possible that the impacts of the COVID-19 pandemic, relocating and the fact that the claimant wrote of significant levels of stock in the 2020 to 2023 financial years (amounting to $216,000) may have been relevant.
[4.11] Mr Gwynne observes that there is insufficient information to determine whether there was a loss of revenue because of the accident.
Part E: Past economic loss
[4.12] The claimant received a reduced income in the 2018 tax year, and from the evidence currently available did not received any income from the 2019 tax year onwards. At least up until the subject accident, there can be no dispute that that the claimant was incapacitated for work on account of the effects of the robbery and possibly physical conditions affecting her knees and cervical spine. The claimant had been receiving workers' compensation weekly payments since February 2019.
[4.13] The claimant received Australian Government Allowances ($13,500), Superannuation Lump Sum payments ($4,204) and a Death Benefit ($6,324) in the 2019 financial year.
[4.14] Mr Gwynne was unable to calculate any past loss of earnings because at the time of the subject accident the claimant was not deriving an income, rather she was incurring losses.
[4.15] The claimant’s business ceased trading in around mid-2022 in the context of a dispute between the claimant and her landlord. The business has since relocated. The business address has changed from 20 – 28 Maddox Street, Alexandria to 33 – 47 Euston Road, Alexandria. The claimant signed a three year lease commencing on 10 October 2022, committing to pay $46,800 plus GST per annum in rent.
[4.16] As at 31 January 2024 workers’ compensation weekly payments amounted to $152,110.05 including the Fox v Wood component. The claimant cannot claim twice for this loss.
[4.17] When the claimant had last worked prior to the subject accident is unclear. Dr Teoh recorded a history that the claimant had last worked in July 2018. The evidence also suggests that the claimant did not work between December 2017 and June 2018 due to a “Bond Outgrow” condition. Dr Teoh also recorded a history that the claimant stopped working in 2018 due to a “knee injury”. However, even in the period post-accident the claimant is recorded as going to her shop (albeit for short periods) and continues to be involved in the day to day running of the business, such as with respect to administration and paying the salaries of employees.
[4.18] NRMA contends that the claimant has not demonstrated that she has suffered any past economic loss on account of the subject accident.
Part F: Future economic loss
[4.19] It is the claimant’s contention that she has lost the capacity to work in “unskilled fashion as a retail provider, customer service worker, machine operator, process worker, or some other unskilled type of occupation”, apparently casting a wide net.
[4.20] This claim for future economic loss seeks to disregard the fact that the claimant is 54 years old (49 years old at the time of the subject accident) and already had a long work history owning and operating a business. The evidence tends to suggest that the claimant has only worked for herself since she came to Australia in 1998. Furthermore, the claimant also seeks to disregard the very significant impairment the claimant had with respect to work before the subject accident and assumes that she would have been able to work unencumbered earning considerably more than she ever has on the evidence.
[4.21] Not only does this fail to accord with the claimant’s likely circumstances but for the injury, it is also unrealistic. The evidence falls considerably short of the s 4.7 of the Motor Accident Injuries Act 2017 threshold.
[4.22] As noted above, the claimant appears to continue to be in receipt of workers compensation payments as a result of the 2018 armed robbery (an updated list of payments is outstanding). Furthermore, the most recent Certificate of Capacity is completed by Dr Vago and is dated 5 August 2024. He notes that the claimant has no capacity to work between the period of 17 June 2024 to 19 August 2024. In response to the question as to when the claimant may be able to return to any type of employment he responds “INDEFINITE”. Factors affecting recovery are noted to be “SEVERE MENTAL STRESS”.
[4.23] NRMA contends that there should be no allowance for future economic loss.
Part G: Travel
[4.24] The claimant claims a buffer in the sum of $5,000 for travel based upon the assertion that she “has lost the capacity to drive”. NRMA contends that this self-reported loss of ability is not supported by medical evidence. If the claimant has any ongoing impairment with respect to travel, this impairment is not accident related. NRMA submits that there should be no allowance for travel.

CLAIMANT’S SUPPLEMENTARY SUBMISSIONS, DATED 27 SEPTEMBER 2024

The claimant’s submissions are summarised below by reference to paragraph number:
Part A: Issues
[3] The primary issues in the case remain as follows:
(a) the extent of the claimant’s pre-existing conditions, if any; and
(b) the extent of the claimant’s accident-related conditions, if any; and
(c) how the above interplay in terms of past and future economic loss.
Part B: Oral Evidence
[4] The claimant gave oral evidence.
[5] No recording was made.
[6] No transcript was taken. However, the parties provided me with a summary of the evidence.
[7] While the claimant was easily confused, the evidence she gave was generally consistent with her statement evidence. It was logical and persuasive. She accepted she had prior issues. She maintained the accident prevented her from working.
[8] It is submitted that she should be accepted as a witness of truth. The cross-examination did not reveal any dishonesty, as opposed to confusion. The Briginshaw v Briginshaw [1938] HCA 34 standard must be met before a finding of dishonesty can be made.
[9] Claiming workers compensation – when such evidence establishes the armed robbery was a material contribution – is not irregular. Nor is listing “PTSD” on a DSP application when that is the very condition aggravated by the accident.
[10] Dealing with the evidence, the writer recalls the following salient points from the cross-examination.
(a) Her pre-existing knee and feet issues did not prevent her from returning to work prior to the subject accident;
(b) She had pre-existing psychological symptoms following the armed robbery;
(c) The neck injury – whilst symptomatic at times prior to the accident – became worse following the accident;
(d) She had other symptoms following the accident as a result of the neck injury including those in her upper limbs and headaches (albeit some symptoms were also present prior);
(e) From a psychological point of view, she managed to return to work following the armed robbery;
(f) Her and her son completed the Centrelink forms for a disability pension. She could not recall the form itself. She could not recall which date she said he could not work from; She maintained, she returned to work following the armed robbery and not December 2018;
(g) As at the date of the subject accident, she had returned to work for a couple of weeks working 20 hours per week;
(h) On the day of the accident, she was driving and attending to “orders”. That is, she was working when the accident occurred;
(i)   She has been unable to work since the day of the accident.
(j)   She sometimes drives past the shop to see if the doors are open. She she has spoken to employees but not customers since the accident. She does “zero” for the business now.
(k) The business no longer does foreign trade. It does groceries and lottery. Her son does the work now.
Part C: Legal Principles
[11] The claimant accepts that she received 260 weeks of weekly compensation relating to the psychological injury she sustained as a result of the armed robbery.
[12] The payments ceased on 31 January 2024, as she had received all of her entitlements. The payments totally $170,000 gross, or $596 net per week (on average).
[13] The claimant accepts she is not entitled to double compensation: Tran v Vo [2017] NSWCA 134.
[14] However, the claimant is not claiming damages as a result of the armed robbery. She is claiming damages only as a result of the motor vehicle accident. As such, there is no occasion for double compensation.
[15] The defendant’s submissions are misconceived. They pre-suppose that damages can only be awarded on the basis if the motor vehicle accident is the (i.e sole) cause of the incapacity.
[16] The law in relation to “causation” requires only that the tortious event be a material contribution.
[17] In Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 at 45 it was put like this.
[45] The law’s recognition that concurrent and successive tortious acts may each be a cause of a plaintiff’s loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is “caused or materially contributed to” by a defendant’s wrongful conduct.It is enough for liability that a wrongdoer’s conduct be one cause. The relevant inquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss.68 Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.
[18] The principle was confirmed recently in Value Constructions Pty Ltd v Badra [2024] NSWCA 181. In that case, the occupier argued that the employer was the “proximate” cause of the injury, such that it was liable, not the occupier.
[19] Kirk JA said:
[6] Ground 3 can be dispatched immediately. The nub of the point was captured in Value’s written submissions in reply where it was argued that it was the actions taken on behalf of MMM, rather than the actions of Value, which were “the proximate cause of the harm”. That is not the relevant legal test for causation in negligence. The issue under s 5D of the Civil Liability Act 2002 (NSW) (CLA) is relevantly whether the negligence was a necessary condition of the occurrence of the harm. That notion has been taken to include where the tortfeasor’s negligence materially contributed to the harm even if there were other conjunctive causes, just as under the previous common law: Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36 at [70]; Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [20]-[30]. It is necessary only that the relevant act or omission play some part in contributing to the loss, even if minor: Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 at [45]; Gould v Vaggelas [1984] HCA 68; (1984) 157 CLR 215 at 236. It does not require that the cause be characterised as “proximate”: note eg Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [11]. Here, if Value was negligent in the manner found by the primary judge then there can be no doubt that its negligence was a materially contributing cause of Mr Badra’s injuries. Value made a vague suggestion in its written submissions that an issue “perhaps” arose as to scope of liability under s 5D(1)(b), but the argument was not developed and has no apparent merit.
[20] There is no difference in relation to causation of damages. The High Court has warned about the dangers of searching for a single cause of incapacity. In Shorey v PT Ltd [2003) HCA 27 the following was said at [41]:
It is a basic principle of the law governing the recovery of damages that a claimant does not have to prove (as Dr Phillips seemed at first to assume was the law) that an impugned event was "the" cause, in the sense of the one and only cause. It is enough that the claimant shows that the event is "a" cause of the condition for which damages are claimed. The fact that the appellant had undergone a laminectomy and discectomy of her spine in 1986 (before the fall) that she was of an age where deterioration in the condition of her spine might be expected to some degree, and that she also suffered grief and a sense of guilt following the death of her husband from lung cancer in January 1989 (after the fall) did not rule out the consequences of the fall as "a" relevant cause in the subsequent disability. In a sense, the back operation (which was reported as successful, following which the appellant was pain free until the fall) and the death of her husband simply rendered the appellant more susceptible to the consequences of the fall.
[21] The proper approach to damages when there may be more than one incapacity is helpfully illustrated in State of New South Wales (NSW Police Force) v Nguyen [2021] NSWPICPD 34.
[22] In that case, a police officer was injured when she was sexually assaulted by a coworker, after hours, at a work function. Whilst she did not contend the sexual assault was a work-related injury, she claimed that the treatment following the report of the injury (by the employer), caused a psychological injury which was compensable.
[23] The worker succeeded in that argument.
[24] In dealing with a submission from the employer that the sexual assault was the cause of the incapacity, not the subsequent injury (i.e. the work injury), the Presidential Member said:
[73] “The appellant’s submission, that incapacity “flowed not from the aggravation injury but rather from the alleged sexual assault” (emphasis added) asks the wrong question. It assumes an ‘either/or’ approach which is inconsistent with authority. An argument that incapacity results from the alleged sexual assault is not necessarily inconsistent with the proposition that incapacity also results in the relevant sense from the ‘aggravation injury’. The applicable question is whether the ‘aggravation injury’ caused or materially contributed to the relevant incapacity. There was ample evidence to support this proposition.”
[25] The Presidential Member then referred to the medical evidence and said:
[78] The lay evidence, like the psychiatric evidence, is consistent with the conclusion that the ‘aggravation injury’ materially contributed to the incapacity. The above evidence from the respondent is consistent with her suffering distress due to how she was treated by the appellant following the assault. More particularly, it is consistent with a perception on her part that she was treated unfairly compared to the perpetrator.
Dr Takyar and Dr Bennett considered she could not work “within proximity of the male offender” (Dr Takyar) or “in the same location as the offender” (Dr Bennett). There is no reason to regard this restriction as necessarily relating to the assault as opposed to the aggravation injury…
[26] That is the proper approach to take in this case.
Part D: The Medical Evidence
[27] The claimant will not rehash the medical evidence in the case. She contends, however, that the subject accident materially aggravated and/or caused fresh injuries to her neck (with radiculopathy) and psychological state.
[28] The claimant refers the Member to the contemporaneous evidence in the ED Discharge Referral (p 25 - 26), together with the ambulance report (p 29), as supporting contemporaneous complaint.
[29] This coincides with the claimant’s evidence as to symptoms following the accident and that of her son.
[30] There is no evidence that those symptoms ever dissipated. Indeed, the defendant’s case is that all of her symptoms pre-existed and continue to exist. No submission is made that the accident-related injurie resolved.
[31] In relation to the orthopaedic injuries, the predominant injury relates to the neck. That caused additional and/or worsening headaches, together with radiculopathy.
[32] MA Dr Wallace accepted there was an aggravation injury (p 91). However, he failed to appreciate that any such aggravation would make the defendant liable for same (Watts v Rake [1960] HCA 58).
[33] The claimant has dealt with why Dr Wallace’s report should not be accepted in the primary submissions (para 7 – 9).
[34] In addition to those submissions, the claimant adds that Dr Wallace failed to appreciate that there was a significant deterioration immediately following the accident, as recognised on the radiology by Dr Dan (see page 167).
[35] Indeed, unlike prior to the accident, Dr Dan contended that surgery was required (page 68).
[36] The psychological evidence is even more compelling.
(a) Mr Ziedni (p 76, 134 – 135) accepted a significant aggravation of the underlying PTSD, and opined that she remained with other significant symptoms purely from the motor vehicle accident (particularly in relation to driving).
(b) Dr Teoh, report, dated 20 February 2021 (p 118 – 119 and 129) stated that the accident “largely” aggravated her underlying condition. He said she was unfit for work (note the report dated 1 March 2021 should be disregarded given it is not adopted by Dr Teoh [see report dated 3 September 2024]).
(c) MA Dr Samuels (p 99) reached a similar conclusion regarding the aggravation. He considered she sustained an aggravation of PTSD.
(d) Dr Davies found there to be a somatoform disorder and PTSD. He said that “much of her manifest impairment reflect her motor vehicle accident more than the robbery”. He assessed a 7% WPI.
(e) MA Dr Roberts (p 110 and 114) found that there was a persistent depressive disorder with pure dysthymic syndrome, as a result of the accident. He deducted only 1 % WPI for the pre-existing condition.
[37] The defendant relies on no medical evidence of its own. That is despite it having the claimant examined by Dr Vickery and Dr Bisht (years apart).
Note: The report of Dr Bratten (which was commissioned many years ago by the employer) cannot be accepted for the reasons given in the previous submissions at para 25.
[38] In such circumstances, and given there is no cogent or reasoned rebuttal (Wiki v Atkantis Relocations (NSW) Pty Ltd [2004] 174) of the expert witnesses, it would be erroneous to reject them.
[39] As such, the only finding that is available is that the motor vehicle accident caused a material contribution to claimant’s past, present, and future incapacity. She is therefore entitled to damages.
[40] The defendant then bears the onus of disentangling the effects of the accident with precision: Watts v Rake [1960] HCA 58, Shorey v PT Ltd (2003) 77 ALJR and Purkess v Crittenden (1965) 114 CLR 164.
[41] The court cannot do so without appropriate medical evidence.
Part E: Damages
[42] The accountants conclude that the claimant’s earnings were around $600 net (defendant) to $640 net (claimant) in the years prior to the accident.
[43] However, that does not represent her “Capacity”. All it represents is what she was earning at the time of the accident, in circumstances in which she had previous work-related injuries/conditions but had otherwise began to return to work.
[44] The claimant submits that a fair assessment of her capacity in the past – given average wages now are $1,400 net per week approximately – is $1,000 net per week.
[45] As stated above, she accepts she cannot be compensated twice. She also accepts that in the past, the psychological condition was a material contribution (albeit not the sole contributing factor) to her incapacity.
[46] On that basis, she makes a claim only for the additional loss of capacity for which she has not been compensated for in the past. That is – on average - $400 per week ($1,000 net per week less $600 net per week in payments from the employer).
[47] From the date of the accident to 31 January 2024, she claims $400 net per week. This totals 243 weeks x $400 = $97,200
[48] From 1 February 2024 to 26 September 2024, at $1,000 net per week (i.e because no payments were made), is $34,000.
[49] Superannuation of 11% should be added = $15,000 (rounded).
[50] As to the future, the claimant’s capacity on the open labour market, given her skillset, is far higher than what she paid herself through the business. It would be no less than average wages of $1,400 net per week.
[51] The claimant makes such a claim from the date of the assessment conference to age 70 (16 years; 579.5), with a reduction of 15% for vicissitudes = $689,605.
[52] Superannuation at 14.26% is $100,000 (rounded).
[53] As to the travel allowance, the evidence suggests a significant incapacity in that respect. Her claim of $5,000 as a buffer, which is approximately $3.20 per week over 30 years, is modest.
Total
[54] The above totals:
(a)    Past economic loss: $131,200
(b)    Future economic loss: $689,605
(c)    Past superannuation: $14,432
(d)    Future superannuation: $98,338
(e)    Travel: $5,000. = $938,575 plus costs and interest.
Conclusion
[55] The claimant submits damages should be assessed in accordance with the above at $938,575 plus costs and interest.

NRMA'S SUPPLEMENTARY SUBMISSIONS DATED 8 OCTOBER 2024

NRMA's submissions are summarised below by reference to paragraph number:

Part A: Background

[1.1] The claimant brings a claim for damages arising from injuries she claims occurred in a motor vehicle accident which occurred on 8 June 2019. The claimant asserts that she was driving along Botany Road, Alexandria when the insured driver failed to stop and collided with the rear of her vehicle (accident).
[1.2] The matter proceeded to hearing before Member Stern on 26 September 2024. Following the hearing the parties were given the opportunity to provided further written submissions.
[1.3] The only witness to given evidence at the hearing was the claimant.
[1.4] These submissions should be read in conjunction with submissions filed in these proceedings dated 13 March 2024 and 12 September 2024.
Part B: Issues to be determined
[2.1] The claimant in her supplementary submissions submits that the primary issues to be determined are:
(a)    the extent of the claimant's pre-existing conditions, if any;
(b)    the extent of the claimant's accident-related conditions, if any; and
(c)    how the above interplay in terms of past and future economic loss.
[2.2] With respect NRMA contends that that the primary issues are in fact:
(a)    the claimant's most likely circumstances but for the accident as they relate to economic loss;
(b)    whether the claimant suffered a loss of earning capacity on account of any injuries suffered in the accident; and
(c)    if it is found that the claimant has suffered a reduction in earning capacity due to the accident, that this has or will likely result in financial loss, and if so the measure of that loss.
[2.3] In answering these questions, findings are necessary with respect to the claimant's pre-existing and unrelated conditions and any incapacity to work in that context, as well as any impact resulting from the accident.

Part C: Claimant's evidence

[3.1] The claimant's further submissions contend that the claimant is a witness of truth, and that her evidence was "logical and persuasive". NRMA disagrees with this characterisation of the claimant's evidence.
[3.2] Despite an abundance of clinical records detailing the claimant's physical and psychological impairments prior to the accident, the claimant often either denied that this the case or simply indicated she could not remember instances of disabling impairment.
[3.3] The claimant was cross-examined as to the content of an Allied Health Request completed by Muhamad Ziedni dated 27 March 2019. 1 This is an important document because it describes the claimant's symptoms consequent to the 2018 robbery as it remained present just over two months prior to the accident. The claimant claimed she had difficulty remembering reporting to Mr Ziedni at that time of not being able to work "at all", having limited capacity with respect to self-care, only being able to drive a maximum of 10 minutes because of spine and leg problems, and she found it difficult to turn her neck to the left. The claimant's evidence that she was unable to recall these matters was unconvincing. NRMA contends that the timing of the Allied Health Request is important as it is a clear articulation of dysfunction just over two months prior to the accident.
[3.4] During the course of the hearing the claimant also asserted that she had limited recollection with respect to the following matters:
(a) In a physiotherapy report dated 2 May 2017 it was noted that the claimant had chronic left heel pain with an onset dated of 24 December 2015. At the time of the report she reported bilateral heel pain, the left being worse than the right, and this was aggravated by walking and standing. Her walking tolerance of 5 minutes remained unchanged. She was unfit for duties. QBE was copied into this letter indicating that it was produced in the context of a compensation claim.
(b) The claimant attended Royal Prince Alfred Hospital on 4 March 2018 complaining of a I-year history of bilateral knee pain which was gradually getting worse. The pain was exacerbated by walking, chronic low back pain was also noted

(c)    Dr Noel Dan on 28 August 2018 noted that the claimant had fractured her right foot about 10 years prior as and as a result was putting stress on the left foot and because of this it had become problematic in the past couple of years. She was also having problems with her neck for the last 2 months and could not lift her left arm and indicated pain involving the index and middle fingers which then spread up the forearm to the arm and neck.
(d)    Dr Noel Dan on 17 January 2019 reported that the claimant continued to experience a sore neck. If she worked on the computer for about 30 minutes she then has to lie down to rest. She presented with a walker noting that surgery had been suggested for her leg
(e)    Dr Noel Dan on 21 March 2019 reported that her condition at the time was either the same or worse. The claimant could only drive short distances and continued to use a walker. She asked about wearing a cervical collar, although Dr Dan discouraged this despite reports of headaches, neck and arm pains which were said to always be present.
(f)    Dr Seah, rheumatologist produced a letter dated 1 1 November 2109 noting that the claimant had a 3 year history of pain and swelling in both knee. Symptoms were usually worse after prolonged walking and she had difficulty getting into and out of a car as well as getting out of a chair.
[3.5] The claimant's explanation as to entries in the Disability Support Pension (DSP) application form dated 3 February 2024 was also inadequate. NRMA notes the claimant indicated the following on the form:
(a)    she last worked on 1 December 2018 (which tends to coincide with the earlier armed robbery);
(b)    reasons given for the application were Post-Traumatic Stress Disorder in 2018 and Chronic pain form 2017 (both pre-dating the accident and undermining the claimant's denial of or difficulty remembering longstanding pain prior to the accident); and
(c)    there is no reference to the accident on the application form
[3.6]   The declaration to the application form makes clear that giving false or misleading information is a serious offence.
[3.7]   The claimant's answers on the DSP application sit uncomfortably with subsequent assertions in her statement dated 4 March 2024 in the context of this case indicating that she continues to operate the business, albeit at a loss.
[3.8]   During the course of the hearing when asked about the DSP application the claimant had no explanation for the absence of any reference to the accident aside from asking "did I make a mistake?". NRMA contends that if the claimant believed the accident had any bearing upon her incapacity to work it would have been mentioned on the form. Incidentally the DSP application was submitted on 3 February 2024, just 3 days after workers compensation payments had ceased on 31 January 2024
[3.9]   NRMA contends that the claimant was an unimpressive witness. She was reluctant to make appropriate concessions regarding well documented unrelated conditions and their impact upon her ability to function and work. NRMA submits that the claimant's evidence would not be accepted where it is unsupported by independent contemporaneous evidence.

Part D: Further submissions

[4.1] Despite the claimant's unwillingness to accept that she significant functional impairments affecting every aspect of her life prior to the accident, this was plainly the case.
[4.2] Even before the robbery there is no dispute that the claimant was significantly functionally impaired. As noted above Mr Ziedni on provides clear details of dysfunction both prior to and after the robbery in 2018.
[4.3] The effects of the robberies cannot be understated. It is of course relevant that her store was robbed again on 26 May 2019, shortly prior to the accident. Although the claimant was not present at the store on this occasion, she saw it on CCTV, and it was plainly traumatic.
[4.4] Dr Vago, the claimant's general practitioner has continued to issue workers compensation Certificate of Capacity forms declaring the claimant unfit to work on account of Post-Traumatic Stress Disorder arising from the armed robbery on 17 December 2018. The most recent Certificate currently to hand certifies the claimant unfit up to 19 August 2018, it is anticipated to be "indefinite".
[4.5] Whilst the claimant contends that NRMA "bears the onus of disentangling the effects of the accident with precision", this has no application in the present case for the following reasons:
(a)    the claimant's case is limited to past and future economic loss;
(b)    the claimant's business was losing money in the years preceding the accident;
(c)    the claimant was totally incapacitated for work prior to the accident and there is no evidence to suggest that she would have been fit to return to any form of work had the accident not occurred; and
(d)    the claimant has not established that she has lost any income on account of the accident.
[4.6]   Thus, even if the claimant can establish that she has suffered some injury on account of the accident, where the claimant was totally incapacitated for work and there was no reasonable expectation that she would return to work, the claimant will fail to have established that that additional injury is or will be productive of financial loss.
[4.7]   The claimant claims that after the robbery in 2018, but at some unspecified time prior to the accident she started returning to work at 20 hours a week. There are no records evidencing this and this assertion is simply at odds with the medical evidence and the workers compensation claim. There is no evidence of improvement in the claimant's conditions prior to the accident. As noted above, some two months prior to the accident Mr Ziedni makes plain that the claimant had no capacity to work and a number of activities of daily living were being affected. As has been stated, where there is no corroborating evidence, the claimant's evidence cannot be accepted.
[4.8]   Noting that the claimant operated through a business, merely doing work for the business does not equate to income. There has been some business activity since the accident. In 2022 The claimant's business moved premises and she signed a new lease agreement. The claimant continues to go to the shop from time to time to check on its operations and staff.
[4.9]   NRMA's position is consistent with Dr Bratten's view that the robbery was the predominant cause of the claimant's incapacity to work. The claimant suggests that the fact that his report is undermined by the fact that it was prepared in 2020 but does not point to any material change in the claimant's circumstances since then. This position is supported by Dr Vago, and even the claimant when one has regard to the manner in which she completed the DSP application.
[4.10]The claimant submits that the fact that 1% was deducted for person impairment by Medical Assessor Roberts. This submission overlooks the fact that "Adaptation", which relevantly addresses economic loss, remained unchanged at Class 3 pre and post-accident. Furthermore, on the day of the hearing the claimant's counsel handed up a letter from iCare dated 19 October 2023 indicating that weekly payments and payment for treatment expenses would cease on 31 January 2024 "[b]ecause you have been assessed as having a permanent impairment of 7%" Incidentally, this is the identical permanent impairment found by Medical Assessor Roberts before any reduction for the pre-existing condition.
[4.1 1] The evidence of Dr Teoh is frankly concerning. He has prepared two substantive reports dated 20 February 202112 and 1 March 2021. Both reports have an addendum with an assessment of whole person impairment. The substantive report dated 20 February 2021 (the one upon which the claimant seeks to rely) is not signed, whilst the substantive report dated 1 March 2021 is signed. In his letter dated 3 September 2024, he states that.
The draft report dated 1 March 2021 was reviewed and inaccuracies corrected. The Whole Person Impairment was also revised and amended. The revised/final report was dated 20 February 2021. Whilst this final report predates the draft report, I confirm that the report dated 20 February 2021 is correct.
[4.12]Dr Teoh's attempt to explain the difference between the two reports is wholly inadequate. The differences between the reports are substantive. Of note, his opinion with respect to the reason for the claimant's incapacity for work in his report dated 1 March 2021 fairly reflects the evidence: Her incapacity is largely caused by a pre-existing psychiatric condition, and because of her physical condition. She had a knee injury, and she stopped working in 2018.15
[4.13]It is unclear why the reference to the claimant's knee injury and her stopping work in 2018 is omitted from the report dated 20 February 2021.16
[4.14] It is also of concern that Dr Teoh decided to correct these "inaccuracies" on 3 September 2024, over three and a half years after the two reports were prepared.
Presumably he was contacted and further instructions were provided. Whilst it is difficult to know what to make of Dr Teoh's evidence, NRMA contends that it is likely to be immaterial given the fundamental shortcomings in the evidence relating to economic loss. [4.15] Associate Professor Gordon Davies' report dated 29 May 2023 is problematic for principal two reasons. The first is that it is a brief which does not canvass functional impairment arising from the robberies (he makes no mention of the second time the shop was robbed in 2019). Secondly, A/Prof Davies' assumption that the claimant's symptoms were more attributable to the accident appears to be merely based upon that fact that she focussed on the accident during the consultation:
She presents with a history of having developed apparent anxiety-based symptoms following a robbery at her workplace in 2017. I had some concern that despite the use of an interpreter and specific advice about the interview being in regard to the workers compensation issues Ms Zhao remained focussed on the physical symptoms resulting from the car accident rather than the consequences of the robbery and that she tended to combine the issues together.
Overall, this has meant that the underlying post-traumatic stress disorder is not contributing significantly to her current presentation on interview.
[4.16] It is unclear why A/Prof Davies refers to a robbery in 2017. In any event, the reasoning behind the conclusions are not logical. A/Prof Davies also appears to have overlooked the claimant's longstanding chronic pain pre-dating the accident. NRMA submits that A/Prof Davies' report should be given limited weight.

Part E: Economic loss

[5.1] The claimant submits that NRMA in this case is a concurrent tortfeasor and cites a number of authorities which discuss the concept of material contribution. None of the cases cited arise from motor vehicle accidents. Despite NRMA's submissions dated 12 September 2024 raising squarely the threshold issue raised by s 4.7 of the Motor Accident Injuries Act 2017 (the Act), the claimant's further submissions are silent on this issue. Loss of past income has not been demonstrated
[5.2] The claimant claims a loss of $400 net per week from the date of the accident to 31 January 2024, and $1 ,000 net per week from 1 February 2024 to 26 September 2024. Despite the claimant being employed, superannuation is also claimed. No real attempt has been made to justify these figures, and it ignores that the claimant was unfit to work at the time of the accident and has been compensated by the workers compensation insurer on that basis.
[5.3] The claimant's submission that it is NRMA's position that the claimant was earning $600 net per week "in the years prior to the accident" by reference to Mr Gwynne's report is potentially misleading. He states the following at paragraphs 2.3.2 and 2.3.3 of his supplementary report dated 18 January 2024: 17 Between 2015 and 2017, the Claimant's
Average Net Weekly Income ranged from $563 to $659 (an average of $597 / week over that period); In the 2018 & 2019 years, the Claimant's Average Net income declined significantly to a weekly loss of $446 in 2018 and a weekly loss of $652 in 2019. It is apparent therefore that at the date of the Accident the Claimant's Business was in decline and she was not earning an income. The Claimant continued to incur losses in the 2020 to 2023 years... [emphasis added]
[5.4] Furthermore, the basis for the assumption that Mr Wu has calculated that "in the years prior to the accident" the claimant was earning $640 net per week is not clear. If it is based upon the "Average Profit" of $33,035.23 for 2016 and 2017 referred to at Annexure A of his report, 18 there are two difficulties with this approach. The first is that the net operating profit for 2016 and 2017 are minus $7,148.71 and $419.16 respectively. It is not true income if the claimant was effectively drawing down from the business. Secondly, there is no reason the Member would accept that the average profit would be net rather than gross.
Presumably the income would be taxed as income to the claimant.
[5.5] The claimant has sought to disregard her past earnings (or lack thereof) and contend that a "fair assessment" is $1 ,000 per week by reference to what she says are average weekly earnings (the assumption that this is "$1 ,400 net per week approximately" is unclear). This approach is both untenable and inappropriate as it seeks to disregard the claimant's personal circumstances.
[5.6] The claimant is now 55 years old, with a clear work history, which includes operating a business for a number of years as well as a number of significant unrelated health complaints which have had a deleterious effect on her ability to work and function generally. There is no suggestion that the claimant had any intention or ability to enter the workforce as an employee. In that context average weekly earnings have no bearing on the current claim. Furthermore, there is no evidence that the claimant ever earned $1 ,000 net per week or anything in line with average weekly earnings.
[5.7] The claimant's income in 2016 and 2017 is of limited assistance in circumstances where there was a subsequent significant deterioration in the claimant's physical and mental health rendering her totally incapacitated for work.
[5.8] Furthermore, in her statement dated 4 March 2024, 19 NRMA notes that the claimant acknowledges that:
(a)    her business was adversely affected by the COVID-19 pandemic;
(b)    she had to relocate her business in 2022 because the landlord wanted to reclaim the premises for an immigration business at which stage she had a $90,000 ANZ bank loan and a lot of equipment in the shop which she hoped to salvage;
(c)    she unsuccessfully attempted to sell the shop, and she is the only shareholder in the business;
(d)    the business had to write off $200,000 worth of stock in 2020, 2021, 2022;
(e)    she incurred costs of around $23,000 in relocation costs; and
(f)    as at the time of the statement business losses were ongoing.
[5.9] As was highlighted in NRMA's submissions dated 12 September 2024, the claimant's received a reduced income in 2018, and there is no evidence of business income from the 2019 tax year onwards. The evidence clearly establishes that the claimant was deriving no income from the business prior to the accident, and this appears to have continued since.
[5.10] NRMA maintains that the claimant for past economic loss has not been made out.
Part F: Future economic loss
[5.1 1] As noted above, the claimant fails to address s 4.7 of the Act. The provision states the following: Future economic loss-claimant's prospects and adjustments
(a)    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.
(b)    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.
(c)    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. [emphasis added]
[5.12] The burden falls to the claimant to satisfy the Member of the relevant assumptions referred to in s 4.7 of the Act. Where the Member is not satisfied of those assumptions it is NRMA's contention that the jurisdiction to award damages for future economic loss is not enlivened.
[5.13] Furthermore, it is trite that recovery for damages for economic loss involves a twostep process. As was observed in Tran v Younis [2006] NSWCA 188 at [1 1]: ... Damages are awarded for loss of earning capacity, not loss of earnings as such: Medlin v The State Government Insurance Commission (1995) 182 CLR 116; but only if "the diminution of his earning capacity is or may be productive of financial loss": Graham v Baker (1961) 106 CLR 340, 347.
[5.14] Again, the claimant fails to address this aspect of her claim. If it had done so the fundamental difficulties with the claim would have been readily apparent.
[5.15] The evidence establishes that the claimant was totally incapacitated for work at the time of the accident and remains totally incapacitated for reasons unrelated to the accident.
As Dr Vago states, it is anticipated that the claimant's incapacity to work due to the sequelae of the robbery is indefinite.
[5.16] NRMA submits that in that context any reduction in capacity occasioned as a result of the accident can only be theoretical.

Part G: Travel

[6.1] For reasons stated in its submissions dated 12 September 2024, NRMA maintains that the claim for travel has not been established. Whilst the claimant asserts that she no longer drives, this is inconsistent with what was reported to Medical Assessor Roberts (she reported that she had not returned to driving, yet admitted to following what she believed was the insured vehicle and received a speeding ticket in that context). Furthermore, as noted above, NRMA submits that the Member cannot accept the claimant's evidence where it has not been corroborated by contemporaneous material.

OTHER RELEVANT MATERIAL

Report of Dr Truls Bratten, consultant psychiatrist

Dr Bratten took the following history:
“Ms Ruiqi Zhao is a 51-year-old woman who lives with her son in Sydney. She is the owner of her own store which she reports running over the last 16 years. She is currently not working and last worked on 17 December 2018. On that date she was working when the store was robbed at gunpoint by two perpetrators. The robbery lasted for around five minutes and involved the theft of petty cash and cigarettes.
Ms Zhao reported being well from a psychiatric point of view prior to December 2018.
Following this event, Ms Zhao reported new onset of anxiety with shortness of breath, panic attacks, issues with concentration, and bouts of sweating, low energy and sleep
disturbances. She described ongoing feelings of fear even in her home, being triggered by seeing guns in the media, having ongoing hyper-vigilance as well as flashbacks to the event when returning to her store.
She is still the owner of the store and reports she still is involved in the day to day running of the business. She reported attending the store around two to three times per week, but only for brief periods of time.
In late 2019 she was involved in a motor vehicle accident. She began suffering from
musculoskeletal pain following this accident and has an ongoing insurance claim regarding this matter. She reported pain in her neck, shoulders, knees and feet. She also reported an associated headache which she described as constant, 24 hours per day. Ms Zhao stated this accident had aggravated the symptoms she had suffered following the robbery but was not able to give specific examples or quantify this aggravation.
Ms Zhao stated she had received treatment in the form of psychotherapy from her treating psychologist Muha mad Ziedni over the last year. When asked what the therapy consisted of, she stated she would talk about her problems. She gave the example of discussing a recent example where she had an issue with the strata in her building. She stated the goal of the therapy was to prevent committing suicide.”

A/Prof Davies continued, setting out his diagnoses:
(a) somatoform disorder (DSM-V), and
(b) post-traumatic stress disorder.
Under ‘Summary and Opinion’, A/Prof Davies stated:
“Ms Zhao is a fifty-three year old female living in Alexandria. She presents with a history of having developed apparent anxiety-based symptoms following a robbery at her workplace in 2017. I had some concern that despite the use of an interpreter and specific advice about the interview being in regard to her workers compensation issues Ms Zhao remained focussed on the physical symptoms resulting from the car accident rather than the consequences of the robbery and that she tended to combine the issues together.
Overall, this has meant that her underlying post-traumatic stress disorder is not contributing significantly to her current presentation on interview.” (my italics)
It should be noted that A/Prof Davies arrived at this opinion (i.e. not contributing significantly to her current presentation) at a point where he believed the claimant had reached maximum medical improvement with regard to the robbery.
A/Prof Davies further commented that at the time he assessed her, the complaints were primarily focused on her physical problems following the car accident, and there were no specific complaints related to the robbery.
A/Prof Davies assessed the claimant as having 7% WPI, using the psychiatric impairment rating scale. This reflected the motor vehicle accident, as against the robbery.

Dr Samson Roberts, psychiatrist

Dr Roberts assessed the claimant more recently on 8 November 2022, for the Commission, namely, an assessment of whole person impairment, diagnosing the claimant with having a persistent – depressive disorder, with pure dysthymic syndrome, giving rise to a WPI of 6%.
Dr Roberts noted under the history of symptoms and treatment [10], that the claimant stated that after the accident she was too afraid to ever drive again. He also noted that the claimant explained that there was an occasion when she travelled in the front seat of a taxi and was so scared that when she got out, she could not speak. She recalled that she was shaking. She reported that on that occasion, she rested for approximately an hour at a specialist’s practice and that the “specialist almost called an ambulance”.
Dr Roberts under Diagnosis and reasons [18], concluded that the history recounted by the claimant and the information in the supporting documents, lead to a conclusion that she was suffering from post-traumatic stress disorder, prior to the motor accident, and that this condition arose as a result of an armed robbery in her shop. It was also apparent that the claimant suffered a somatic symptoms disorder, characterised by a disproportionate focus on her physical condition and pre- occupation with the effects of her physical symptomatology.
He continued that the description of mood symptoms reflects the presence of a depressive condition. The recounted mood symptoms reflected a separate diagnosis, namely a new condition of onset, subsequent to the motor accident, and caused by the physical effects of the motor accident. He arrived at the diagnosis of persistent depressive disorder, with pure dysthymic syndrome. The post-traumatic stress disorder itself, related to the robbery and it was not apparent that the condition had been changed by the accident.

Dr Ben Hooi-Beng Teoh, psychiatrist

The claimant’s case is supported by a medico-legal opinion of psychiatrist Dr Ben Teoh, who took a careful history, and arrived at the opinion that the claimant’s presentation was consistent with the diagnosis of panic disorder, caused by the accident, and that she had a pre-existing psychiatric condition, aggravated by the accident. It was his opinion that a person of normal fortitude, would have suffered a response to the accident as described, and noted that she had developed significant anxiety symptoms with avoidant behaviour.
Dr Teoh was of the opinion that on the balance of probabilities, the claimant’s capacity to work in the future would be affected by her condition. She had persistent anxiety symptoms, with acute anxiety attacks and avoidant behaviour, had lost her confidence, and was concerned about further accidents. Her psychiatric capacity was largely aggravated by the accident.

Muhamad Ziedni, treating clinical psychologist

Mr Ziedni reassessed the claimant and reported on 19 August 2024.
The claimant had been referred to him by the treating GP, Dr Leslie Vago, and Mr Ziedni initially reported on 17 February 2020, when he noted his opinion that the claimant suffered from post-traumatic stress disorder. In the updated report, he remained of the opinion that her current incapacity was caused by the motor vehicle accident.
Under “Diagnosis and recommendation”, Mr Ziedni notes that:
“…she also suffers from frequent flashbacks of her horrible car accident experiences. Her fears and worries about the future for her and her family, the unfamiliar environment and language barrier, in combination with the trauma of her past life have aggravated her mental health issues.”
He continues [top of page 5]:
“… in the NDA there are no indications of symptoms overlapping between the previous trauma, as consequences of robbery and current PTSD symptoms as consequences of the MVA.”
Mr Ziedni continued under Capacity:
“Ms Zhao’s injuries incurred significant long-term working incapacity up until four years after the accident. She has not been able to return to driving as she continues to persistently avoid driving any car. A good capacity to drive and mobility are certainly required if Ms Zhao is to return to work as a shop owner. She has not been able to return to full work duties or modified duties.”

Dr Truls Bratten, consultant physiatrist

Dr Bratten reported on a medicolegal basis twice.
First report of Dr Bratten of assessment 17 September 2020, reported at the request of an agency MLCOA, instructed by iCare workers compensation.
There was no report available from any psychiatrist, though he had the first report of the psychologist, Mr Ziedni.
Dr Bratten took a history, including of the robbery of 17 December 2018. She was not working at the time of her assessment by Dr Bratten.
The claimant reported being well from a psychiatric point of view prior to December 2018 (i.e. prior to the robbery). She described ongoing feelings of fear, even in her own home, being triggered by seeing guns in the media, having ongoing hyper- vigilance, as well as flashbacks to the event when returning to her store.
The claimant told him that the accident (the car accident) had aggravated the symptoms she had suffered following the robbery, but she was not able to give specific examples or quantify this aggravation.
Under ‘Past medical history’, Dr Bratten notes the physical consequences of the accident (musculoskeletal pain) but says nothing about psychiatric consequences.
Under Summary, Dr Bratten was of the opinion that the claimant was suffering from post-traumatic stress disorder amenable to treatment and with a favourable prognosis.
In answer to the request by NRMA, Dr Bratten stated that on 17 December 2018, the claimant was robbed at gunpoint by two perpetrators. The robbery lasted for five minutes and involved a theft of petty cash and cigarettes.
Dr Bratten did not refer to the motor accident.
In relation to the motor accident, the claimant told Dr Bratten that the accident had aggravated her symptoms but was unable to give specific examples. He opined that:
“There appears to be no other direct correlation to her core PTSD symptoms and any medical conditions.”
Dr Bratten considered the main contributing factor to the claimant’s psychological condition was the robbery.
I adopt the following propositions articulated in the claimant’s submissions of 1 June 2024 concerning the report of Dr Bratten that:
(a)    the history provided to him in relation to the accident was brief;
(b)    the examination occurred only 12 months following the accident;
(c)    the opinion is four years old, and
(d)    the doctor had not had the benefit of opinions from Dr Teoh, Associate Professor Samuels, or Dr Roberts.
Associate Professor Anthony Samuels and Dr Samson Roberts were very thorough and given that they had the availability of the relevant information, were more likely to arrive at a reliable opinion.
Associate Professor Davies should also be accepted as arriving at a reliable opinion.
There is a mention of Dr Vickery, but his report is not relied upon by NRMA.
The weight of the medical expert opinion favours the claimant, in that, the claimant did sustain an aggravation of her unrelated psychiatric condition associated with the robbery. The examiners put it variously taken chronologically:
(a)    12 October 2020, Medical Assessor Anthony Samuels, Diagnosis: exacerbation of underlying post-traumatic stress disorder, mood disorder and chronic pain;
(b)    17 February 2020, Mr Muhamad Ziedni (clinical psychologist), Diagnosis: post-traumatic stress disorder (PTSD major depressive episodes based on clinical interview and evaluation with MAP (mood assessment program);
(c)    25 September 2020, Dr Truls Bratten (consultant psychiatrist), Diagnosis: post-traumatic stress disorder (PTSD) (DSM 5);
(d)    20 February 2021, Dr Teoh, Diagnosis: panic disorder (DSM 5 Diagnostic Criteria);
(e)    13 December 2022, Medical Assessor Samson Roberts, Diagnosis: Persistent depressive disorder with pure dysthymic syndrome;
(f)    29 May 2023, A/Prof Gordon Davies (psychiatry), Diagnosis: Somatoform Disorder (DSM- V) and post-traumatic stress disorder, and
(g)    19 August 2024, Mr Muhamad Ziedni, Clinical disorders: adjustment disorder (severe depression, severe anxiety), panic attacks, post- traumatic stress disorder.

Conclusion on the medical consequences of the accident

The weight of the medical evidence supports the proposition that the claimant did sustain injury in the accident, which has affected her capacity for employment, and which constitutes an impairment likely to have resulted in economic loss from the date of the accident, and into the future.

What was the claimant’s work capacity before the accident

The claimant states [4 March 2024]:
“[42] In around December 2017 I developed a medical condition in my right knee and foot that meant I had to reduce my working hours. I was working around 40 hours per week in 2017, however, as a result of this condition I reduced my working hours to around half of this, or 20 hours per week. This continued for about 6 months until June 2018. I was able to gradually increase my hours after this”.
[43] The robbery at the store then occurred in December 2018”.
[44] After the robbery I returned to work. I worked about 20 hours with one employee. I taught him how to work in the shop.
[45] After I returned to work the second robbery then occurred in May 2019, which was just prior to the subject motor accident.
[46] I have not retuned to work at all since the accident.”
The claimant gave the following histories in relation to her employment at the time of the motor vehicle accident:
(a) Certificate of Associate Professor Anthony Samuels: “In terms of pre-accident functioning, Ms Zhao acknowledged she was depressed by the robberies, was stressed about walking in the streets and going into shops. She said things are worse now and she has pain 24 hours a day and cannot drive.”
(b) Report by Dr Bratten: “Ms Zhao reported being well from a psychiatric point of view prior to December 2018. Following this event, Ms Zhao reported new onset of anxiety with shortness of breath, panic attacks, issues with concentration, and bouts of sweating, low energy and sleep disturbances. She described ongoing feelings of fear even in her home, being triggered by seeing guns in the media, having ongoing hyper-vigilance as well as flashbacks to the even when returning to her store. She is still the owner of the store and reports she still is involved in the day to day running of the business. She reported attending the store around two to three times per week, but only for brief periods of time.”
It is fundamental that a tortfeasor takes a plaintiff as it finds her.
The claimant, in her submission of 27 September 2024 at [17] and [18] referred to Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 at [45] and to Value Constructions Pty Ltd v Badra [2024] NSWCA 181. It also referred to Shorey v PT Ltd [2003) HCA 27.

Impairment to income earning capacities

The physical injuries also play a role in this case, in relation to the claimant’s entitlement to damages.

The claimant’s statement

The claimant outlined her pre-existing physical impairments:
[29] Prior to the accident I had a problem with my right knee and I also had heel spurs/plantar fasciitis. I wore orthotic shoes from the podiatrist to help the heel spurs, and I think this might have put my knee out. I underwent an MRI scan of my right knee just before the subject accident and this did not show any ligament tears or tears to the meniscus. I was seeking a further referral to a specialist orthopaedic surgeon at the time.
[30] In addition to this, prior to the accident I also had a problem with my neck. I think this was related to the fact that I worked in a corner shop doing packing and cleaning. My neck started to become painful in about April 2018. I also had some pain in my l eft arm. I did not have any pins and needles or numbness in my arms or hands at all.
[31] Dr Vago referred me to Professor Noel Dan in about July 2018. I was sent for an MRI scan, and this showed some multi-level disc bulges but no neural impingement. Professor Dan advised me that I should utilise conservative treatments, and that surgery was not required. Dr Vago prescribed Celebrex and Panadol to control the pain in my neck and he also recommended a pain clinic.
[32] At the time of the accident I was suffering from pain in my neck and left arm and occasional headaches. Following the subject accident the pain in my neck became much more intense and the headaches started occurring on a daily basis. I also experienced pain in both arms, and I experienced pins and needles and numbness in my arms and hands. As stated above, prior to the subject accident I had never felt pins and needles or numbness anywhere.

Medical Assessor Raymond Wallace

In his medical assessment for SIRA, Medical Assessor Raymond Wallace determined that the claimant’s injury to the cervical spine was a minor injury for the purposes of the MAI Act. The claimant’s “current symptoms” were reported as:
“Ms Zhao now complains of intermittent occipital headache.
She notes a constant aching pain at the cervical spine in the region of the C5, C6 and C7 spinous
processes radiating to the superior border of the trapezius muscles bilaterally with no radiation to her shoulders or arms.
The pain is worse on standing, sitting or rotating her head and is relieved by lying down.
She notes no paraesthesia or numbness at her upper limbs. She complains of weakness at her bilateral upper limbs and stiffness at her cervical spine.”
Dr Wallace came to the following diagnosis:
(a) musculoligamentous strain cervical spine, and
(b) aggravation of pre-existing symptomatic multilevel degenerative cervical spondylosis.
Although the claimant was not entitled to damages for physical impairment, the physical injuries she sustained as a result of the accident and her preoccupation with the effects of her physical symptomatology are intrinsic to her psychological condition.
The claimant was not actually working in any significant way at the time of this accident. That does not mean that the claimant had zero residual income earning capacity, and if this accident had not have happened then on the balance of probabilities, the claimant would have been able to get back to work at some stage but the precise timing of her return to work cannot be calculated with precision.
Dr Teoh, psychiatrist and physician in addiction medicine, noted that Ms Zhao had managed a shop for 15 years, she had last worked in July 2018. She had a right leg work injury. She did not have any surgery. She consulted an orthopaedic surgeon. She was physically disabled by the surgery.
In the Statement of Particulars, the claimant submitted:
“The Claimant was the victim of a robbery at her store on 17 December 2018. She had time off work and had difficulty returning to the store in a customer facing role (at the counter) due to fear related to the robbery. She developed PTSD. The Claimant was able to attend the store to do other tasks.
It is contended that the Claimant would have had 12 months off following the robbery and returned to her usual duties in the mixed business by December 2019. The Claimant had been the victim of a robbery prior to December 2018 and had returned to work. She is a single mother and had no other source of income. Accordingly, it is likely that after treatment for her PTSD she would have returned to work.
Unfortunately, the Claimant was injured in the subject accident on 8 July 2019. As a result she suffered an aggravation to her pre-existing psychiatric condition and development of new psychiatric conditions. She has not been able to return to work since the subject accident.”
The claimant submitted that:
“The business has sustained the following losses since the subject accident:
2020 - $137,805 (50% claimed from Jan 2020 to July 2020)
2021 - $189,478
2022 - $55,981
2023 - $52,508
Total: $366,869.50”
The claimant accepts that she suffered an aggravation to pre-existing post-traumatic stress disorder due to the robbery in 2018 and she has had the benefit of payments from the workers compensation insurer to date ($590 gross per week). The claimant makes an allowance for this and claims 75% of the amounts outlined above.
The plaintiff claims in her submissions of 1 June 2024:
[35] The claimant submits that the capacity she has lost is the capacity to work in an unskilled fashion as a retail provider, customer service worker, machine operator, process worker, or some other unskilled type of occupation.
[36] Given her experience, she would have been capable of demanding at least average wages over the years. Presently that is around $1,400 net per week.
[37] A blended claim in the past is made at the rate of say $1,200 net per week from the date of the accident to the date of the hearing, together with superannuation at 11%.
[38] This results in the following calculation $1,200 x 277 weeks x 1.11 = $370,000 (rounded).
[39] Thereafter, a claim is made at the rate of $1,400 net per week to age 70, albeit higher vicissitudes should apply. This results in $1,400 x 473.9 x 0.80 (vicissitudes) x 1.1426 (superannuation) = $605,000 (rounded).
[40] It is assumed that no tax has been paid by the defendant. However, the claimant reserves the right to make such a claim if this assumption is incorrect.
[41] If the Member is not minded to make an assessment on the basis of a weekly calculation, he still must assess something: New South Wales v Moss [2000] NSWCA 133.
The evidence does not allow me to determine, with precision, when the claimant would have returned to work, as a result of which, I cannot determine precise figures for either past or future economic loss, but the evidence is sufficient to allow me to determine that there was a measure of loss in the past, as well as in the future, on the basis of her injuries.
In IAG Ltd t/as NRMA Insurance v Damian Mares [2016] NSWSC 1792, Hall J said this with respect to the correct assessment of future economic loss:
“(a) s 126 does not prevent the award of a cushion or buffer for future economic loss [para 68];
(b) the following formulation, which was approved by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61, applies [para 69]:
(1) Assess the “most likely” of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);
(2) Assess the claimant’s economic prospects as a consequence of the accident;
(3) Compensate the claimant for the difference between (1) and (2), including, where appropriate, through the use of a buffer;
(4) Adjust (3) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (1) even had the accident not occurred;
(5) Include a statement of the assumptions made as the claimant’s most likely future circumstances and the appropriate percentage adjustment as to the above formulation see also Leslie & Britts, Motor Vehicle Law New South Wales, at [MAC.126.40].”

In Dal v Chol [2018] NSWCA 219, White JA said [at 24]:
“... Indeed, an award for future economic loss based on an assessment of the difference between the respondent’s likely earnings as a qualified motor mechanic and his actual earnings at the time of trial ($217 per week) applied to his likely working life, discounted for vicissitudes and applying the five per cent discount rate to calculate the net present value of the loss over that period, would have been unexceptionable.”
In Allianz Australia Insurance Ltd v Kerr [2012] 83 NSWCA 13 Basten JA stated at [24]:
“The claimant's submissions focused on the language of s 126, but identification of the specific non-conformity relied upon would have illustrated the insufficiency of that approach. Section 126 does not purport to codify legal principles relevant to assessment of loss of earning capacity. It does not identify factors to be taken into account in making an assessment. Nor does it appear to depart from or vary the general law principle that the compensable loss is not a loss of income but the loss of capacity to earn income which "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; 106 CLR 340 at 347; State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71] (Heydon JA); State of New South Wales (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [86] (Beazley JA; Allsop P and Macfarlan JA agreeing). Income earned prior to the accident may well be the best evidential basis to assess the earning capacity of the claimant, but for the injury, subject to adjustment for the passage of time since that income was last earned. Income earned between the accident and the trial may be (but often is not) a good indicator of current capacity. The latter may be capable of extrapolation into the future, but it will usually be necessary to consider whether, and to what extent, both pre-accident capacity and post-accident capacity might have been and might be expected to vary in the future.”
His Honour continued at [26]:
“In Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638, three members of the Court (Deane, Gaudron and McHugh JJ) referred to the exercise in respect of hypothetical events, stating that ‘the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability’: at 643. It has been submitted (though not determined) that s 126 replicates that approach: State of New South Wales (NSW Police) at [88]. If so, it appears to disregard the remarks of Brennan and Dawson JJ at 640:
Although we agree with the general thrust of the reasoning on this point in the judgment of Deane, Gaudron and McHugh JJ, we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation."
His Honour then summarised the comprehensive review of the principles to be found in this area quoting from Heydon JA in Moss.
His Honour also reproduced the assumptions about future earning capacity at [31] and other events as noted in Nominal Defendant v Livaja [2011] NSWCA 121 at [41]:
“The assumptions or events upon which a baseline may commonly be calculated include:
(a) identification of the skills, training and experience of the plaintiff, as at the date of the accident;
(b) the work he or she was undertaking immediately prior to the accident;
(c) the likelihood that he or she would have continued in such employment, but for the accident;
(d) the possibility that he or she might have obtained promotion or other benefits, but for the accident;
(e) the age to which he or she was likely to have worked in that employment, and
(f) the possibility that the employment would not have been continuous."
I do consider that the exacerbation of the psychological injury interacting with the consequences of the soft tissue injures, has given rise to an exacerbation of the claimant’s pre-existing psychiatric condition, and this does constitute an impairment, which most likely has already and is likely in the future, to result in economic loss.

Assumptions of fact in future economic loss

Section 4.7 of the MAI Act states:
“(1)    Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2)     The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3)     If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
I make the following assumptions:
(a)    there probably would have been some delay, at least in the short term, in the claimant returning to work, by reason of the pre-existing post-traumatic stress disorder, unconnected with this accident and by reason also of the psychiatric condition which developed as a result of the exacerbation, triggered by the subject accident, in combination with the physical injuries the claimant sustained in the accident;
(b)    the work which the claimant was doing, was not heavy work and it was within her skill set;
(c)    the claimant was motivated to return to employment if it was possible, and
(d)    the claimant’s psychiatric condition was amenable to treatment.

Determination

I assess on a buffer basis damages for past and future economic loss in the amount of $150,000, and that includes a consideration of loss of superannuation and vicissitudes.
I have taken into account s 7.36 (1)(b) of the MAI Act which requires me to assess the damages that a court would likely award in these circumstances.
The authorities which permit me to assess a buffer in circumstances where a loss is likely but the amount cannot be determined with precision are: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302, Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579; QBE Insurance (Australia) Ltd v Volokhova [2014] NSWSC 726, IAG Limited t/as NRMA Insurance v Al-Kilany [2017] NSWSC 342 (30 March 2017), Sretenovic v Reed [2009] NSWCA 280 per McColl JA at paras 79-86, Allianz Australia Insurance Limited v Sprod (2012) 81 NSWSC 626, Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 (16 September 2014) and Allianz Australia Insurance Limited v Zein [2016] NSWSC 196; IAG Limited v Priestley [2019] NSWSC 1185 per Fagan J (criticising at [24] the decision to award a buffer for future economic loss devoid of explanation where the assessor had said that he had taken into account a number of variables but did not quantify them in his assessment of the buffer nor did he determine the claimant’s most likely future career alternatives or make any findings as to her weekly work hours and the reduction of same as a result of her impairment).

Regulated costs

I assess the costs as follows:
Costs claimed
Stage 1 as claimed: 2.92 units at $119.96 = $350
Stage 2 as claimed: 4.32 units at $119.96 = $518
Stage 3 as claimed at 114.48 monetary units (mu) plus 2 cents= $14, 733
(1 monetary unit = $199.96)
Stage 4 as claimed at 2 cents per dollar = $2,000
Representation at an Assessment Conference: 30 units at $119.96 = $3,599
Additional conference time (3 conferences): 4.5 hours claimed at $338= $1,521
Applications
Minor Injury Dispute (Dr Wallace and Dr Samuels) costs paid by NRMA on
20 October 2020
WPI dispute (Dr Samson Roberts) = $ 1, 919
Disbursements
Dr Ben Teoh – psychiatric assessment and report = $1,660
Dr M Ziedni – assessment and report = $1,919.36
South Trend Accounting (Peter Wu) – report = $1,000
Dr Lesley Vago – clinical notes = $116
ATL interpreters fee – 26 February 2024 and 3 September 2024 = $324.55
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed under the MAI Act is $32,626.18 (including GST).

Total

Under sub-sections 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim as $150,000.

[2024] NSWPIC 624

7 November 2024