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Mourad v QBE Insurance (Australia) Limited [2024] NSWPIC 700 (16 December 2024)

Last Updated: 9 January 2025

STATEMENT OF REASONS

INTRODUCTION

1. Ali Mourad (the claimant) was born in Lebanon in 1981.
2. He was involved in a motor vehicle accident (the accident) on 15 January 2021.
3. He made a claim for damages on the CTP insurer of the at fault driver, QBE Insurance (Australia) Ltd ABN 78 003 191 035 (the insurer) under the Motor Accident Injuries Act 2017 (the MAI Act).
4. The insurer has admitted liability on behalf of the insured driver on 13 October 2022 by admitting liability, QBE 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.

5. A dispute has arisen in connection with the claim. The claimant has referred that dispute to the Personal Injury Commission (the Commission) and it has been allocated to me for determination.
6. The issues in dispute are:

(a) the extent of the claimant’s injury, pre-accident treatment and recovery;

(b) the extent of the claimant’s injury, post-accident treatment and recovery;

(c) the extent of the claimant’s injury related to the subsequent motor vehicle accident;

(d) the extent of the entitlement to damages for past economic loss as far as it relates to his accident-related injuries, and

(e) the extent of the entitlement to damages for future economic loss as far as it relates to his accident-related injuries.

7. The claimant seeks damages for non-economic loss and also for past and future economic loss and loss of earning capacity.
8. I held a preliminary conference in this matter on 14 August 2024 and after discussion with the parties, proceeded to an Assessment Conference on 27 September 2024.

Statement of Ali Mourad dated 13 September 2022 – A2 in the claimant’s bundle

9. The claimant provided a description of his work accident:

[15] As I was cutting past my body to my right-hand side, I noticed the ladder started to wobble. I tried to steady it and maintain my balance, but unfortunately the ladder moved further as a result of which it tipped, and I fell onto my arm suffering the injuries to both my upper limbs and my back.

[16] I have undergone four operations since the accident.”

10. The claimant continued:

“[42] I resolved my workers compensation claim in about the end of 2019.

Post Injury Work

[43] I continued to do my treatment but was feeling much better and made enquiries about finding work and asked a few friends who have electrical business, and they said they were looking for labourers.

[44] I approached Jamil Bazzi and he said he would hire me to start in early 2020. I started in the week before 21 February 2020.

[45] I was doing between 3-4 days most weeks and occasionally do 5 days. We agreed he would pay me $200 per day for a 6-7 hour day.

[46] Jamil knew l could not do any heavy lifting or carrying because of my previous injury.

[47] It was work I could handle and most of the time I was delivering electrical tools and assisting the Electrician with sub boards, running wires, removing wires, carry tools change lifts and power points etc.

[48] It was work I enjoyed, and it was outside as it was level 2 work. I avoided any work at heights and any heavy lifting or repetitive arm movements which would aggravate my pain in my wrists etc.

[49] l was earning on average $600 and $800 net per week.”

The accident of 15 January 2021

[17] On 15 January 2021 I was with friends who arranged to go fishing on the Central Coast (18,19,20,21,22,23-32)

[18] I went in my car and Hussien was in his car with the trailer attached.

[19] On our way back I was travelling behind Hussein who had left about 3 hours before we left the central coast, he called us that he had a flat tyre on his trailer. We had been on the road for a while and had reached Palm Beach before we got the call.

[20] I said it would take us about an hour or so before we would reach him. I was planning on going along the M5 but as we got the call from Hussein I decided to use the M2 and then onto the M7 towards the Campbelltown area. I knew he was on the M7 around the Rooty Hill area.

[21] It was about a couple of kms from the M2 exit on to the M7.

[22] We noticed he was on the side of the road in an emergency bay.

[23] I pulled over behind him and left my lights on and the indicators being the emergency lights flashing.

[24] We got out of the car and we were trying to change the tyre as Hussein could not change it by himself. The problems was that the trailer was a bit twisted on the flat tyre side and it was difficult to lift up the tyre to change it.

[25] Eventually we did this and changed the tyre and all of a sudden and without warning a car hit us from right basically head on.

[26] I was could feel instant pain and thought I was going to die as he was going full speed and I could feel myself sinking under the car.

[27] I could not get up and I tried to get up as I had been pushed to the line where the cars were travelling.

[28] I could hear people screaming as I was as well.

[29] It was very dark, and I could not see much.

[30] I have no real memory as to how long it took for the police to arrive and it seemed like an eternity.

[31] The main problem I could hear the traffic very close to me passing by at speed.

[32] I find it difficult to talk about it. __

Post injury Treatment

[50] As a result of the accident, I was admitted to Westmead Hospital and underwent surgery to my right leg. I also had extreme chest pain and could hardly breathing.

[51] I have noticed that despite the operation I was not getting any better in fact it was going worse, and I have had a second operation by Dr Fox but I have since requested a second opinion as I am not sure what is going on. Dr Fox operated on 17 January 2021 and again on 10 March 2021.

[52] While at Westmead Hospital for the first operation Dr Fox underwent an open reduction and insertion of a nail into the femora. During my stay at hospital, I suffered a pulmonary embolism. I was put on blood thinners. Since then I have had some problems with breathing but just put up with it.

[53] On 10 March 2021 Dr Fox operated at the Lakeview private Hospital to adjust the interlocking screws.

[54] I saw Dr Fox a number of occasions, and I was advised by Dr Fox to have a third operation. I was very upset with this and wondered why he did not do both operations at the same time. After discharge and in the months that followed, I was having a great deal of pain and restriction of movement.

[55] Due to the problems I had with my wrists I was very concerned to have multiple operations and scared of the whole process of surgery. I have a great fear of not waking up from the general anaesthetic. I sought a second opinion.

[56] I was sent to see Dr Molnar another specialist on 22 April 2021 and have been under his care since. He preferred to continue with conservative treatment and reassess as time passed.

[57] I continued to see my GP Dr B Wilson who has also referred me to Dr Younan, psychiatrist who I see on a regular basis at least once a month.

[58] I am prescribed with medication for depression and to help with sleeping.

[59] I currently take Avanza one and a half tablets at night before sleep and a sleeping tablet other than endone which I had been using for some time.

[60] I still take endone during the day to help with pain, Norgesic pantoprazole, Mitrozapine.

[61] I was admitted to the St George Private Hospital on 3 August 2022 as Dr Molnar removed just the pins in my right knee.

[62] I am in Severe pain and am restricted in doing any work or housework.

[63] I did go back to AJB Electrical to do 3 days a week 4 hours a day as per the certificate but there are many weeks when the pain and anxiety, I suffer is such that I cannot even do 12 hours per week.

[64] I am not sure whether I will be able to get back to any form of work at this stage.

[65] I have recently done an MRI on my right hip and right knee. Dr Molnar has suggested that an injection into my hip and knee.

[66] I still have major problems with my low back, and upper back and anxiety as a result of the accident.

[67] There is a large scar from my hip down my right thigh and around the knee.

[68] I am noticing increased symptoms in my left knee as well as I favour the right leg.

At [69] The claimant sets out his symptoms and restrictions at the time of this Statement.

Further Statement of The claimant of 2 February 2024

The claimant States: -

[1] Assted a qualified electrician by putting in lights, laying wires and cables, and connecting power points in houses. Work was done in Lebanon for about three (3) years. He did not have formal qualifications.

[2]-[3] After the electrical work, worked as a stonemason for ten (10) years

[4] Before the accident, was working with AJB Electrical for about six (6) to eight (8) months. Was on call for emergency jobs for 24 hours during this time and was only completing light duties.

[5] On average was being called on to work about four (4) days a week. There were weeks where he was working five (5) and up to six (6) days a week. He was paid on a day rate of $200.00

[6] He was planning to work to return to full-time work until retirement.

[7] Has spoken to Mr Bazzi about a full-time role, but he did not have enough work to provide a full-time job due to the claimant’s ability to only perform light work.

[8] Would assist qualified electricians by collecting tools, laying cables, and helping them install downlights.

[9] Duties consisted of crawling in roof spaces and under houses. He was required to stand for long periods, and had to do a lot of bending, carrying and twisting. Had to lift and carry ladders occasionally.

[10] Occasionally developed back pain after completing those duties, especially when standing, carrying, and lifting large electrical cable, bending and twisting. This did not stop him from completing his duties.

[11] Had occasional pain in his hands and wrists and low back when doing heavier work and would take over-the-counter medication.

[12] Was planning to work on a full-time basis before the accident. Had been assured that if more work was available, he would be offered that work.

[13] But for the accident, he was planning to become a qualified electrician. Mr Bazzi had agreed to offer him an apprenticeship and wanted the claimant to gain more experience.

[14] Made enquiries regarding the time it would take to complete an apprenticeship.

[15] Due to prior experience, his Diploma in Electronics and the experience he would have gained but for the accident, the apprenticeship would have likely taken less time to complete prior to the accident.

[16] If the accident had not happened, he would have begun the process of obtaining accreditation in 2022.

[17] After the accident, returned to work on 24 January 2022. Was only able to work a few months before he stopped working.

[18] Also had plans for completing a course in Canada.

[19] Last saw Dr Younan before he began working. Had seen him in 2018. After the accident, he recommenced seeing Dr Younan.

[20] After he got a new job, he felt happier and felt the depression went away.

[21] Dr Younan prescribed Avanza.

[24] Had knee surgery in August 2022 with Dr Molnar for the removal of bolts from his knee.

[25] In November 2021, went to Lebanon to see his father who was ill.

[27] Since the accident, has noticed a big change in his personality and his ability to communicate and express his thoughts. This affected his relationship with his wife. They had been planning on having children.

[28] Apart from the accident, would have worked full-time in light duties. Intended to work until retirement.

[29] Was slowly gaining more confidence and knew there were many aspects of work as an electrician he could do confidently.

[30] Notwithstanding his preinjury problems, was able to complete all the duties assigned to him.

[31] Loss of confidence since the accident and loss of ability to communicate with his wife and others.

EVIDENCE AT THE ASSESSMENT CONFERENCE

11. The claimant gave evidence at the assessment conference answering questions put to him by his Barrister and cross examination by the Barrister for the Insurer
12. An Arabic interpreter, Lamia Lounici NAATI CPN9JM40O, was present for the duration of the Assessment Conference.

Evidence in Chief

13. The claimant confirmed the accuracy of his written statements.
14. The Assessment Conference took place on 27 September 2024 and Robert Taylor, for the claimant and Marco Nesbeth for the Insurer.
15. Mr Taylor questioned the claimant in chief. He confirmed that what he had stated in his prepared statement was true and correct.
16. He told Mr Taylor that he had an accident in 2014, injured both wrists, the left more so than the right (and that he was right-handed).
17. He said that he had also hurt his lower back at that time and he had some psychological problems for which he was seeing a psychiatrist, Dr Younan.
18. The claimant also stated that he was off work after the 2014 accident for a number of years.
19. He said that before the 2014 accident, he had been doing physically hard work as a gyprocker and plasterer.
20. He also said that when he had been in Lebanon, he was working as a stonemason.
21. He said that he had done a lot of physically hard work.
22. After the 2014 accident, he received a lot of treatment and had a number of procedures to his wrists with his left wrist fused twice. He also had a fusion to the right wrist (two on the left, one on the right).
23. He had tried to work in 2017 with a company run by Jamil Bazzi.
24. After the 2014 accident, he did not work for a number of years but approached Mr Bazzi in 2017 to see if he could offer any work. Further, he had increased pain while he was trying to do the work.
25. By 2019, he started again asking Mr Bazzi if there was something that he could do.
26. The claimant told Mr Taylor that for a number of years, he had been seeing Dr Younan Psychiatrist but had stopped seeing him in November 2019 because he felt that there had been some improvement in his mental health, but still did the work. He found that his employer could rely on him a bit more as he had more experience and his employer was giving him more work.
27. Mr Taylor showed the claimant a text message that the claimant had sent to Mr Bazzi on the 14th September 2014, the day before the accident, with respect to the requirements needed for the following day to determine what work was needed to be done and what materials were required.
28. The claimant was asked about his plans to become a licenced electrician. He had done the course in electrical work in Lebanon and had done electrical work in Lebanon in addition to his work as a Stonemason. So even before he started working for Mr Bazzi, he had some understanding of electrical work and some understanding of the theory because he had done a three-year course (there was no audible reply, but he said yes).
29. He understood that in order to become a licenced electrician, he needed more experience, to work harder, and things like that. He understood that he might have to complete a course and there are enquiries being made about this before the accident.
30. While he was working for Mr Bazzi, he experienced difficulty in doing some aspects of the work like pulling cables which is often required. He was given jobs like changing power points. In electrical trade’s work, there are different levels of work being levels one, two, and three, with level three being the most basic and the licence he was hoping to get was a licence to allow him to do level three work initially. Level two would allow him to work on connecting power. He did work involving level three and level two but under supervision.
31. If he had been able to obtain a licence to do level three work, he would do that work. If he was working for himself at level three, he could have people helping him with the heavier work.
32. Currently, he still has problems with his wrists and back, but his low back pain is worse than before.
33. He also said that apart from his increased low back symptoms, he also experienced problems with his right hip and knee. Further, he was having a lot more psychiatric treatment than before the accident. After the accident, he tried to go back to the same level of work but he was not able to. The claimant said that he had eventually stopped work in about July 2022. He had a lot of health problems, both physical and mental, and had a problem with focusing and then he had to have many surgeries. He said that for the work of an electrician, the most important thing was the capacity to focus. He was on various medications, including tramadol and antidepressants, and was continuing to see his psychiatrist very regularly after the subject accident until recently when he had retired.
34. He had another accident involving a motorcyclist in May 2022, but it only affected him for a short time.
35. The claimant was then questioned at length by Mr Nesbeth.
36. The claimant agreed that when he saw a vocational capacity expert in 2018, his working tolerance was about 40 minutes, and this was six months before the subject car accident.
37. He was questioned about his driving tolerance being limited to 15 minutes because of pain (in 2018).
38. Mr Nesbeth asked the claimant about some history he gave Dr Dias on 15 July 2019 about his standing tolerance being limited to two minutes. The claimant could not remember. Similarly, he was asked about the history he gave about his driving tolerance being limited to 20 minutes. He did remember having issues with driving due to low-back pain, but does not remember when or how long he was able to drive.
39. The claimant agreed that he had problems with his wrists and those problems caused difficulty with driving right up to the car accident.
40. The claimant said that notwithstanding his difficulties with his wrists and low-back, he had been driving right until the subject accident.
41. He agreed that he was able to run and jog for up to 10 minutes before his low-back pain got worse.
42. He was not able to run or jog after the accidents. He has lost his ability to run and jog.
43. The claimant agreed that he struggles to perform any task involving tight-gripping or heavy-lifting, and he was having those difficulties as at 2019. He could not remember whether it was in July 2019 that he had these problems. He could not remember telling Dr Dias that the symptoms were largely the same between 2017 and 2019. He did have the difficulties lifting and gripping right up until the accident, but the symptoms had improved a lot, approximately about the time he started working. After he went back to work, he was seeing improvements day after day but he could not remember sufficiently to answer a number of other questions put to him. It was a long time ago.
44. The claimant agreed in answer to the question that he was not able to really move his left wrist at all, and that it was correct that he would have difficulty doing something because of his left wrist. He also agreed that he had limited movement with his right wrist and he was still restricted a little bit with lifting. He said he could lift more than two kilograms, but it would depend on his position whether he was standing or sitting on the ground.
45. In answer to the question that before this car accident he was not able to lift the heavy shopping bag with his left arm, he said “Not all the time”. For example, straight after the surgeries, he would say no, but after a certain period of time he was improving slowly.
46. The workplace injury settled in 2020, and he thought that he had started working again a few months after that.
47. At the time of the accident his mental health state was affected, but then a bit of time later, he got back to his normal state (referring to the second accident involving the motorcyclist). His difficulties concentrating did not get worse after the May 2022 accident. After this motor vehicle accident, he travelled to Lebanon for three months. He had to stay for three months due to COVID-19.
48. The claimant agreed that he had known Mr Bazzi for over 20 years and had known him in Lebanon because they were from the same village. Mr Bazzi agreed that his workplace accident happened on his third day of work.
49. The claimant said that he was working as an electrician when he started doing work for Mr Bazzi in 2020, even though without qualifications. It was light work and they were flexible hours so he could manage the pain with his wrists and lower back. Sometimes he worked three days a week, sometimes two days a week, and sometimes he could not work a full day because he was in pain, and that was the case when he started working for Mr Bazzi and at the end too. He would have to be careful with his wrists for the rest of his life. Part of the work consisted of connecting cables and he had restrictions on his grip to hand lift them. If he had to do a pole, for example, he would not be able to, and the weight of the drill was relevant.
50. Further in examination, the reason why the claimant went back to Lebanon some months after this accident was because his father was sick. He died before he arrived.
51. The claimant agreed that his Work Injury Damages Claim settled on
    22 November 2019.
52. Mr Jamil Bazzi confirmed that he had been the principal of the AJB Electrical Services.
53. Mr Bazzi was aware that the claimant had hurt his wrists and his back in a work accident and that he had some significant psychological problems after that. Mr Bazzi had offered him some work, which was intermittent. He had worked for him in 2017, three years after the work accident and he had worked for him for about six months maybe, but not constantly in that time. He had stopped the work in 2017 because he could not continue. Mr Bazzi had been able to find some work for him in early 2020, and he was working for him in February 2020 until the time of the accident. He had been gradually increasing the amount of the work he was doing, and with him, he could see that he was able to become a licenced electrician “100%”. Sometimes he relied on him and he knew what he was doing.
54. Mr Bazzi had in fact made an enquiry of the training organisation to find out what the claimant had to do.
55. If the claimant had gained his licence, he would have been able to offer him work as a licenced electrician.
56. Mr Bazzi’s company did all sorts of electrical work as well as residential work.
57. Mr Bazzi himself was working full-time.
58. Mr Bazzi said if this accident had not happened, he believed he would have continued to offer him electrical work, even if he had not been able to obtain a licence. He could do electrical work providing he was under supervision by a licenced electrician.
59. As to his ability, Mr Bazzi said he could see he was able to understand everything. After the accident, he is “like the pain... and he not like... before, smart, you know,... everything, weak, like...”
60. For an electrician, focus and concentration was very important for safety.
61. He did not notice any loss of concentration before the accident.
62. Mr Bazzi expressed some confidence that the claimant would have been able with his knowledge... “to obtain a licence as an electrician”.
63. Mr Bazzi was then cross-examined. Mr Bazzi said that his wife was (in the balance of the answer was not transcribed).
64. Mr Nesbeth asked a number of questions as to their relationship. For example, in the proceeding three months, Mr Bazzi had seen the claimant about 10 times and would speak to him every two to three days.
65. If the claimant was able to work again, he would be able to give him some work, but with his situation he would not be able to do it like before.
66. Previously, although he had some small problem with his hand, he was able to do all the work, like five hours straightaway no problem.
67. Mr Bazzi stated that the claimant was working five to six days a week in the three months before the accident.
68. Asked about a payslip bearing the date 4 January 2021 which did not have how many hours the claimant had worked over the fortnight, Mr Bazzi replied, “Sometimes the claimant was able to do his work, sometimes not” and Mr Bazzi did not have a record how many hours the claimant worked.
69. In answer to the question that it was difficult to say that the claimant was increasing his hours over a period of time if he was not recording it, Mr Bazzi answered “he was asking me... sometime I tried the best to make him work. Sometime I... sometime no.”
70. Mr Nesbeth then asked Mr Bazzi as to the $425.00 payslip for the fortnight and the JobKeeper was top-up by $775.00. He asked him where the $425.00 came from and there was no clear answer to this question. Mr Bazzi agreed that the claimant had no start date for any course as an electrician.

Witness examination: Mr Bazzi

71. Mr Bazzi, the claimant’s employer and friend, gave evidence at the Assessment Conference.

” MR TAYLOR: Sir, you said in your statement at paragraph 10 that if he had been able to become an electrical contractor, and you’ve said you reasonably anticipated that was open to him, that he would’ve been able to make three or four thousand dollars gross per week?

MR BAZZI: Easy.

MR TAYLOR: What do you base that on? What experience of yours do you base that on? How can you say that?

MR BAZZI: Because we are doing work it’s not like as electrician, we do emergency ..(not transcribable 03:02:36).. work ..(not transcribable 03:02:38).. he work like very hard work like - and we - we make more than other - like we - sometime he call us back in 10.00, 11.00, 12.00pm, 2.00am, whatever we call. This one is more.

...

MR TAYLOR: With respect, this is a man who is working in the industry, he employs a number of electricians and he knows what he pays them. Who better to tell you what a qualified electrician is capable of earning that a man who is employing them and paying them.

...

MR TAYLOR: Thank you. Sir, you may have just heard the Assessor - Member say that it’s not entirely clear that this man would have become a licenced electrician, that seems to be the difficulty the Member has. So I am asserting that he would have become or he is asserting that he would have become a licenced electrician if this accident had not occurred. Now, you were the man who employed him, you were the man who worked with him, is that correct, on a regular basis?

MR BAZZI: Yes.

...

MR NESBETH: In the future you’d be able to offer work which would allow him to work around his physical difficulties?

MR BAZZI: With his - with his situation he’s not able to do ..(not transcribable 00:06:47).. like before.

MR NESBETH: Well, just in relation to that, before this car accident he wasn’t able to do heavy work, was he?

MR BAZZI: ..(not transcribable 00:07:03).. was sometime - I can see was sometime because he have the accident ..(not transcribable 00:07:07).. small problem with his hand but he continues, he was able to do all the work, like he’s ..(not transcribable 00:07:17).. work, like five hours straightaway, no problem.

...

MR NESBETH: So you’re saying that he had no restrictions at all before this car accident?

MR BAZZI: Last - before the accident, yes, no problem. He was able to do everything.

...

MR NESBETH: Now, this accident in this case happened in January 2021, would you agree that you are not in a position to say how many hours a week the claimant was working in the three months before that accident?

MR BAZZI: Before the accident he was working five days - five days, six day.

MR NESBETH: So you say around five days, six days. You don’t have any documents though saying how many days a week he was working, do you?

MR BAZZI: (NO AUDIBLE REPLY).

...

MR NESBETH: And on that payslip it’s got ordinary rate, quantity 1, $425, do you understand that?

MR BAZZI: (NO AUDIBLE REPLY).

MR NESBETH: The point is he doesn’t have how many hours he worked over the fortnight, did it?

...

MR NESBETH: So are you saying he did not record how many hours he worked in a particular week?

MR BAZZI: No.

MR NESBETH: So it’s difficult, you’d accept, to say, for example, that he was increasing hours over a period of time if you weren’t recording it?

MR BAZZI: ..(not transcribable 00:23:21).. he was asking me ..(not transcribable 00:23:25).. sometime I tried the best to make him work. Sometime I ..(not transcribable 00:23:29).. sometime no.

...

MR TAYLOR: In your statement you said: “I was initially surprised at what work Ali could do without any apparent difficulty or complaint.” So that’s pretty much what you’ve just said to this gentleman. “When I knew how serious his previous injuries had been. However, Ali worked smart. He sought help with heavier work and rested when he could. He occasionally but not regularly showed signs of having sore wrists or a sore, aching or pain in his low back but it never seemed to stop him from working.” Is that still your evidence or you’ve now changed your evidence?

MR BAZZI: No, no, no, no, this exactly.(not transcribable 00:36:40)..”

RELEVANT DOCUMENTS

Police Report

72. The crash summary details provided the following report:

“About 10:00pm on Friday the 15^th January 2021 Vehicle 2, 3 & 4 were parked in tandem in a dedicated emergency breakdown bay in the southbound lanes of the M7 Motorway, Rooty Hill All 4 PEDs were out of the vehicles tending to a flat tyre on vehicle 3. The PEDs had also spread out some orange witches hats along the edge line for added warning/protection Veh 2 to the rear had its hazard lights flashing Vehicle 1 AWP67R travelling south has entered the breakdown lane and collided with the rear of vehicle 2 shunting it into vehicle 3. Vehicle 1 has then collided with vehicle 3 and 4 at which time it has hit PEDl (HASSAN) causing significant injuries PED 2 (MOURAD), 3 (FARES) & 4(BAZZI) were also struck and sustained serious injuries. All four PEDs were conveyed to Westmead Hospital for treatment Driver 1 (AWOMODU) was conveyed to Mt Druitt Hospital for mandatory testing before being arrested and conveyed to Mt Druitt Police Station where he was charged with 3 x Dangerous Driving occ GBH, 3 x Neg Drive occ GBH, cause injury by misconduct, possess prohibited drug Police Bail was refused, released on court bail conditions H150163902 relates.”

Personal Injury Claim Form

73. In the Application for Personal Injury Benefits, the claimant described the accident as:

“On Friday 15/1/24 at around 10:00pm as we were changing a tyre and parked in the emergency bay on the M7 with all safety measures taken, a car crashed into us and into the parked car, trailer and boat. Police and ambulance attended.”

74. The claimant continued to list the injuries he received as a result of the accident:

“right femur fracture, surgery has been done. Attachment of discharge letter with full details included, Pulmonary Embolism; aggravation to low back and depression; both hips, neck, urological problems. PTSD”.

Certificate of Capacity

75. The certificate of capacity, dated 19 January 2022, gives a diagnosis of a right femoral comminuted fracture, intramedullary nail, bilateral pulmonary embolism, depression and left patellofemoral dysfunction. He was felt to have the capacity to work two hours per day, three days per week. Subsequent certificates of capacity document changes in his capacity. The certificate of capacity, dated 31 August 2022, states that he has no capacity for any work.

Dr Awada, general practitioner

76. On 10 March 2017, Dr Awada reported:

“Mr. Mourad will never be able to ret urn to his pre-injury duties. He needs to have a formal functional capacity assessment before any return to work could be considered.

He is very limited in terms of daily life activities due to the bilateral wrist pain and lack of range of movement.”

Dr Rahman, gastroenterologist and hepatologist, dated 29 March 2017

77. Dr Rahman wrote:

“It was a pleasure again to see Ali following his recent endoscopic investigations.

Gastroscopy was macroscopically normal. Biopsies for Helicobacter and Coeliac disease were normal. There was mild reduction of lactase activity consistent with lactose intolerance.

Colonoscopy was performed to the terminal ileum with a good bowel preparation. There appeared to be minor loss of vascularity throughout the colon but no abnormalities were seen on random biopsies, in particularly no evidence of microscopic colitis.

I have reassured Ali that there were no concerning findings. His abdominal pain can be explained by the multiple opioid medications he requires which would put him at risk of developing narcotic bowel syndrome, a condition of increased bowel sensitivity due to chronic opioid use. I note that he is also taking Lexapro for depression following his injury which has been associated with an altered habit including diarrhoea which Ali has experienced intermittently. He has also been taking Avanza which he states has improved his mental health so possibly one of his medications may be amenable to dosage reduction.”

Dr Yu

78. On 18 August 2017, Dr Yu reported:

“I have recently reviewed the claimant. Following this assessment, I believe it would be appropriate for him to undergo the following procedure for his persistent bilateral hand and wrist pain.

First Procedure:

1. Right Stellate ganglion block with Ultrasound guidance

Second Procedure: (two to four weeks apart)

1. Left Stellate ganglion block with ultrasound guidance

Aim of the above treatment:

1. Reduce his bilateral wrist neuropathic pain.

2. Expedite his recovery and reduce his analgesic requirement.”

Report of Dr Robert Breit dated 14 September 2017

79. Dr Breit took a history of the workplace injury:

“On 18 September 2014, he was nearly a metre above ground when he fell onto his outstretched hands and that was associated with immediate pain in boll, wrists. He was seen at St George Hospital where there were some closed reductions performed in the emergency department and he was placed into some casts.

The discharge referral indicates there were both comminuted intraarticular fractures of the wrist and that this gentleman was reviewed by an orthopaedic registrar who discussed operative intervention, which this gentleman declined, and he was discharged home.”

80. Dr Breit examined Mr Murad and diagnosed him with bilateral post- traumatic wrist arthritis and lumbosacral disc lesion.
81. He opined that the claimant’s prognosis was extremely poor and that he suffered from an acute injury and not a disease process.

Dr Horace Ting (occupational therapist/ vocational assessor)

82. On 16 April 2018, Dr Ting reported:

“The claimant is depressed by his limitations and losses, and is finding it difficult to consider gainful employment at this stage. Had he not sustained the injury, he would have been able to work in his pre-injury employment or move to Canada to work with his brother. Based on the available medical opinions and the findings of the assessment, the disabilities the claimant is suffering from, and his inability to perform his pre-injury employment are the direct result of the subject accident.”

Vocational assessment with Dr Inez Farag (physiotherapist) and Professor James Bright (psychologist) dated 22 October 2018

83. Dr Farag took the following history in relation to the workers compensation claim:

“He provided the following account of the history of his injury. It was his first real day at work, as the previous two days of employment, he had been undergoing training by his employer At any rate, he was on a two-step ladder, when he fell off the ladder, landing on an outstretched hand on the left and with his right hand curled in a fist He considers that as a result of the impact on the ground, that he may also have "Jarred" his lower back. He was taken by work colleagues to St George Hospital, where both arms were immobilised in a plaster back slab. After the swelling had subsided and the claimant indicates that this may have been several weeks later, he returned to hospital and underwent surgery to internally fixate the fractures. In total the claimant underwent at least four surgical procedures and this was due to the persistent symptoms in the wrist Joints It was considered that the fixating plates may have been contributing to his symptoms and these were later removed, along with the loose bony fragments, which were considered to have been impacting on joint function. Follow-up rehabilitation intervention was provided to the claimant in the form of physiotherapy treatment and this continued for a period of some 18 months During this time he reports attending several private practices He found that the excessive exercise increased his symptoms in the wrists however with swelling and pain in the joints.

Eventually treatment was ceased He had a local anaesthetic and Celestone injection but summarised that this had "no effect at all" on his symptoms. The claimant was also referred to a psychologist and continues to receive psychological intervention on a monthly basis. He feels that this is assisting him greatly 1n the management of his symptoms. He was provided with a gym membership for a period of some six months, but said that he did not attend often, as he lacked the motivation and did not enjoy being in a noisy environment to exercise. He prefers to exercise independently and will walk and run daily, in an effort to maintain his physical fitness levels.”

84. Dr Farag concluded:

“The claimant’s performance at this assessment was cooperative and consistent. The clinical examination identified limited movement of the right wrist and no movement in the left wrist, which are attributed to the bi lateral fracture injuries. There is however no evidence of associated muscle wasting. There was no evidence of significant pathology affecting the lower back. In the functional testing the claimant exhibited limitations in heavier handling and in application of strong grip forces with the hands He cannot carry more than 6kg of weight bilaterally and is limited to unilateral carrying of 4kg and 3kg, with the right and left upper limbs respectively. His hand dexterity is unaffected with normal coordination abilities, but he would not be recommended for working with the hands in a confined space due to the limited movement of the wrists and to a lesser extent the elbow supination movement He is also not recommended for fast paced and repetitive activity with the hands, such as may be required in process work. Grip force is reduced bilaterally, with formal test results falling well below the population average

Based on his demonstrated abilities at this assessment the claimant 1s considered capable of undertaking a range of work that falls in the sedentary and semi -sedentary work categories. He is not recommended to return to the duties of his pre-injury position as a gyprock plasterer and would be limited m the manual handling requirements of the role, as well as the sustained grip force that would be required in the position, with the operation and use of the various hand tools. In appropriate employment there is no limitation in his ability undertake full -time work.”

85. Professor Bright opined that:

“The claimant impressed as a somewhat pain-focused individual who impressed as being depressed and not motivated at this time. He is a relatively young man who sadly suffered serious injuries to both of his wrists very shortly after finding work m Australia as a gyprock plasterer However, for the majority of his working career he has worked as a stonemason m a creative capacity producing sculptures. It was his ambition to get back into stone masonry work in Australia that he had undertaken for over a decade in his native Lebanon Smee the accident he briefly returned to work with a friend as a tradesman's assistant carrying tools but found this was too physically demanding for him.

The claimant said he had become depressed and is now being treated by a psychiatrist on a monthly basis that he finds helpful He also relies heavily on strong painkilling medication. Despite this and despite his complaints of reduced socialisation he continues to socialise with a group of friends each week and also on a separate occasion with another friend. He is also able to go for a morning run and a walk in the evening. He also swims at his local gym.”

Report of Dr Uthum Dias, occupational physician

86. On 15 July 2019, Dr Uthum Dias examined the claimant and reported the following:

“The claimant states that otherwise treatment for his injuries has consisted of regular use of analgesia, anti-inflammatory tablets, physiotherapy treatment sessions and massage therapy sessions over the course of the past two and a half years. He has also suffered from symptoms of gastro-oesophageal reflux as a result of his use of analgesia and anti-inflammatory tablets over the course of the past five years and currently takes the proton pump inhibitor Nexium, 40mg on a daily basis.

The claimant states that he currently manages his symptomatology with a daily heavy analgesic regime consisting of Endone, Lyrica and Mobic tablets with intermittent use of topical ointment. He remains under the care of this treating Hand Surgeon Dr Nabarro; however, last saw his treating Hand Surgeon in late 2018. He is not under the care of any other treating medical specialist with respect to his compensable physical injuries.

The claimant also continues to suffer from ongoing significant symptoms of secondary depression and anxiety and continues to follow up with his treating psychologist on a monthly basis. He takes the antidepressant medications Avanza 45mg and Aropax 20mg on a daily basis for symptom relief in relation to his right and left wrist conditions. He takes the benzodiazepine medication Mogadon on a nightly basis to assist with anxiety related insomnia. The claimant continues to follow up with his treating General Practitioner, C. K. Awada on a fortnightly basis with respect to his compensable physical injuries.”

Reports of Dr Mounir Younan, consultant psychiatrist

87. Dr Younan reviewed the claimant in April 2021 and reported:

“Many thanks for the new referral for Ali whom I reviewed on the 30th of April 2021. I have known Ali since his previous injury that was on 18th August 2016. In that previous injury, his left forearm bone was fractured and required three operations. He also suffered from a back injury with radiating pain down both legs. As a result of the chronic pain and incapacity, he developed major depression and hence came under my care between 24th April 2016 and 9th December 2019.

It is now clear that Ali is very unlucky. After rehabilitating himself from the previous injury and started to look forward for a better future, he was again injured and severely so as a result of this terrible accident on 15^th January 2021. Taking a detailed history of that accident took quite a long time. Since you are obviously aware of the details, I found no reason to repeat them.

As for his current psychiatric condition, I found him again suffering from depression and posttraumatic stress disorder. He is unable to sleep at night and in the few hours of sleep he manages, he is troubled by nightmares. He is also troubled by flashbacks that never leave his mind. He suffers from an ongoing feeling of anxiety and hypervigilance. His words about his condition are telling. About this he said, "back to zero."

88. Dr Younan reviewed the claimant on 10 March 2022 and reported:

“The claimant suffered physical and psychiatric injuries in relation to a work accident on 18^th September 2014. In that accident, while he was descending a small ladder, his leg got caught in between the rung and he fell down onto outstretched hands, sustaining pain in both wrists and a comminuted intra articular fracture in the right wrist. For this, he had to go through three successive operation. He also has a reaction to the stress chronic pain and the mishaps as the accident happened on the third day of his employment, and to the accompanying physical incapacity, he developed a psychiatric disorder which was diagnosed as major depression. Ali has received appropriate treatment and rehabilitation and by the end of this initial period he was much improved and began to study online to be become an electrician and was hopeful about starting a new working life.”

Report of Dr James Bodel, dated 7 July 2021

89. Dr Bodel took a history of the accident:

“This gentleman was involved in a motor vehicle accident that occurred at about 8.30 or 9 at night. He and friends were on their way to the Central Coast to go fishing. At the time of the accident, he had been travelling along the M2 Motorway. He was driving a VW Golf but had pulled over behind his friend who was towing a boat, as he had observed that he had pulled over in a breakdown lane on the M2, just 2 kilometres before the exit onto the M7.

At the time of the accident, he was technically a pedestrian. He had stopped his car behind the car towing the boat and then he and others had all got out to assist to change the tyre on the trailer of the boat, because there was a flat tyre. His car was at the back and he had put his hazard warning lights on. It was dark at that time. The patient was apparently beside the trailer, helping to change the tyre when struck by a passing motor vehicle travelling in the adjacent lane of traffic. The speed limit there is approximately 100 kilometres an hour.

The police and the ambulance and the fire brigade all attended. His next recollection is in Westmead Hospital one week later. His primary injury was a fracture of the right femur. His general medical condition was stabilised and internal fixation was undertaken for that fracture of the femur two days later, using an intramedullary nail. He also further aggravated his pre-existing back pain and his wrist and hand pain. He was under the care of Dr Robert Molnar. He was then later discharged home non weight bearing on crutches, although that was difficult because of the back and the wrist injuries. He was in a wheelchair for a lengthy period of time.

It is now only six months since the accident, and he is still in receipt of a certificate indicating no current capacity for work. He is having physiotherapy and still takes medication such as Endone, up to one and a half tablets a day, and Targin 5mg twice a day.”

90. He continued:

“This gentleman has continuing pain and stiffness in the back caused by this accident and a stiffness in the region of the right hip and right knee as a result of the residual effects of the fracture of the femur.”

91. Dr Bodel diagnosed a 16% whole person impairment (WPI).

Dr Robert Molnar, orthopaedic surgeon

92. On 2 December 2021, Dr Molnar reviewed the claimant:

“Ali returned to the rooms today, now nine months after being struck by a motor vehicle on the M7. He sustained a subtrochanteric femoral fracture which was open and initially managed by Dr Fox. As you are aware, this was revised at the six week mark postop and there was a plan for revision with bone grafting at the four month mark postop, at which time the patient sought a second opinion. We elected to treat Ali’s leg non-operatively, and today x-rays, CT scan and a scanogram demonstrate the fracture is united. There is no leg length inequality and extensive callus is noted at the fracture site with bony union. In discussing with Ali, he is mobilising unaided and feels that things continue to improve slowly. Unfortunately, he remains on narcotic analgesics and his main complaint is one of the sensation of instability in his leg. He says that he will lose control of the leg four or five times a day; it is unpredictable, and this is the main reason for him being unable to return to work.

Clinical examination today demonstrates Ali to have a full range of motion, and the knee is stable. He does have some tenderness around the distal locking bolt medially, but I have explained to Ali this may be the cause of the instability sensation. I have suggested he work with you on weaning from his narcotics and I would like him to continue with the physiotherapist on an unrestricted range of motion strengthening program.

I plan to review him again at the 12 month mark postop with further x-rays. At that stage, if he was to have ongoing difficulty, removal of the distal locking bolt could be considered after an MRI scan of the knee. I will keep you informed of his progress.”

93. On 24 February 2022, Dr Molnar wrote:

“Ali returned to the rooms today, now a year after being involved in a high-speed motor vehicle crash. As you are aware, he sustained a subtrochanteric femoral fracture on the right side, initially managed by Dr Fox and revised early in the postoperative period. Ali has ongoing pain in his knee, but the fracture on x-rays and CT scan is solidly united. Clinical examination demonstrates Ali to have a good range of motion of his knee. The knee is stable. There is no obvious effusion. He continues to mobilise with a limp and is complaining of lateral-sided hip pain as well. Clinical examination demonstrates restricted internal rotation of his hip, tenderness over the proximal lateral femur, but he also does have a positive FADIR sign. I have asked Ali now to undergo an MRI scan of both the hip and knee and return to the rooms for review subsequent to these scans being performed. At that stage consideration could be given to removal of the locking bolts +/- arthroscopy, as directed by the MRI scan. I will keep you informed of his progress.”

94. On 18 May 2022, Dr Molnar reported:

“Ali was reviewed in the rooms today in regard to his right leg pain. As you are aware, he originally underwent internal fixation of his right femoral fracture under the care of Dr Fox at Westmead Hospital, and subsequently had a revision nail performed. X-rays, CT scan and MRI scan all confirm the fractures to have progressed to union. He has no significant intraarticular pathology of his knee, but the prominent locking bolt medially is suspect is the cause of his current disability. In regard to the hip, the patient is describing ongoing and increasing pain in his right groin, and the MRI scan of the hip does demonstrate a labral tear. It is hard to be sure whether this is related to the locking bolts or indeed the labral pathology, and I have suggested to Ali that an intra-articular injection of Celestone and local anaesthetic would be reasonable. I have asked him to return to the rooms subsequent to the injection, at which time if he receives good relief from the hip injection but his symptoms were to recur, removal of the locking bolts would be combined with a hip arthroscopy. I plan to review the patient again subsequent to the injection. I will keep you informed of his progress.”

95. On 20 July 2022, he further reported:

“Ali returned to the rooms today, now over a year after undergoing intramedullary nail fixation under the care of Dr Fox, which was subsequently revised. Ali was reporting pain in his right knee, likely associated with the crossed locking bolts and hip. While an MRI scan demonstrated an undisplaced labral tear, Ali reports an intra-articular injection has provided significant relief of his hip symptoms. At this stage, he would like to proceed with removal of the distal femoral locking bolts, but is keen to avoid surgery around the hip. The procedure, its risks and complications for removing the distal hardware were explained to the patient. I have suggested to Ali that the removal of the proximal locking bolts is not difficult and can be added to the same surgery without significant increase in morbidity, and the patient is keen only to proceed with a distal locking bolt removal. We plan to proceed with the surgery at his convenience. I will keep you informed of his progress.”

96. On 25 January 2023, Dr Molnar reviewed the claimant:

“Ali was reviewed in the rooms today, six weeks after undergoing right hip arthroscopy, rim trim and labral repair. Ali has recently seen his neurologist, who feels that an MRI scan of the femoral nerve would be reasonable given his ongoing weakness in quadriceps and altered sensation over the anterior aspect of his thigh. I feel this is reasonable. Clinical examination today demonstrates his arthroscopy wounds to be well-healed. X-rays demonstrate no perioperative complications have occurred. In discussing with Ali, I am happy for him to continue to increase his activities as per the rehab program. Ali, unfortunately, has just separated from his wife, which has made this early rehab period more difficult, but hopefully things will improve for him now. I plan to review him again in six weeks with further x-rays. I will keep you informed of his progress.”

Dr Christopher Canaris

97. Dr Canaris conducted an independent medical examination of the claimant on
    15 February 2022. The report contained a description of his previous injuries and of the subject motor vehicle accident, as well as his previous treatment for physical and psychiatric injuries. This was consistent with the information provided in other documentation. He was felt to present with a Major Depressive Disorder with anxious distress with features of posttraumatic stress disorder and a comorbid Somatic Symptom Disorder with predominant pain. His condition was not felt to have stabilised. He was felt to have had a pre-existing condition for which he was receiving treatment. It was noted that he had ceased antidepressant medication for about 12 months before the subject motor vehicle accident. His prognosis was felt to be guarded.

Report of Dr Raymond Wallace

98. The insurer instructed Dr Raymond Wallace to examine the claimant on 28 April 2022. Dr Wallace was clearly independent of the claimant.
99. Dr Wallace notes the history that the claimant sustained a subtrochanteric fractured right femur, was taken by ambulance to Westmead Hospital where he was admitted and remained for a week and underwent an open reduction and insertion of an intramedullary nail, being discharged on 22 January 2021. He was readmitted on
    10 March 2021 when the two distal femoral interlocking screws were removed to assist with fracture healing.
100. The claimant was referred for a second opinion to Dr Molnar, orthopaedic surgeon, who initially assessed him on 22 April 2021, diagnosing a medical collateral ligament injury at the right-knee, recommending conservative treatment. The right-femoral fracture subsequently healed. The claimant noted that he had no previous injury to his right-leg.
101. The claimant told Dr Wallace that at the right-knee, he noted constant aching with pain superior and medial to the patella, worse with repetitive activity. He complained of intermittent giving way in valgus at the right-knee.
102. The claimant told Dr Wallace that over the preceding two weeks, he had been continuing work at part-time light duties two hours a day, three days a week. Working on neater boxes with work restrictions of lifting as tolerated.
103. On causation, Dr Wallace considered that the right-femoral and right-knee injuries were caused by the subject accident, but there was no objective evidence that he sustained any injury to his lumbar spine as a result of the accident, but had a significant injury to it as a result of the 18 September 2014 fall from the ladder, where he also fractured his wrists.
104. Dr Wallace also commented that at the time of his review at Westmead Hospital, immediately after his injury in January 2021, the claimant did not complain of any lumbar spinal symptoms.
105. The claimant had a good prognosis for ongoing recovery and function of his right-lower limb with conservative treatment over the continuing six months. In the meantime, he remained unfit to return to his full pre-injury duties as an electrician. He would not be fit for activities requiring repetitive bending, squatting, crouching, or kneeling at his right-leg, working in confined spaces, or at heights on ladders or involving repetitive lifting above 10 kilograms. He was currently fit to return to work at full-time light duties with due considerations given to restrictions on his activities.

Dr Anthony Samuels, consultant psychiatrist

106. Dr Anthony Samuels examined the claimant at the request of the Insurer’s solicitor and reported on 2 February 2023.

(a) Dr Samuels took a history that by 2019 things had improved, he was not seeing Dr Younan anymore, but was still taking Avanza, still had back pain and wrist pain but managed to find work with a friend who understood him and began working as a labourer for an electrician with a view of getting some formal qualification as an electrician.

(b) Further, the claimant was much improved. Then was involved in the accident.

(c) Took a history that when the claimant was discharged, he required a lot of care and support. His relationship broke down. A year after he tried to get back to work but could not manage. Around that time, he started seeing Dr Younan again to request the Avanza. At the time of Dr Samuels Assessment, the claimant was not working and felt he could not work because of the pain and his knee giving way.

(d) The claimant was taking a lot of analgesic medication in the form of Endone and Norgesic. He was on Avanza 45mg and takes medication to sleep.

(e) He said that in the immediate aftermath of the accident that quite severe post-traumatic-type symptoms with nightmares, intrusive thoughts, extreme irritability, and some suicidal ideation. He is still depressed, irritable, and anxious. He was no longer taking having dreams but having images of the accident. Still feels quite jumpy and finds it very hard to sleep. His concentration is “very poor”. He still has passive suicidal thoughts and feels quite negative about the future.

(f) According to Dr Samuels, the claimant had a pre-existing vulnerability to depression which followed his first work injury in 2014. It seemed that his mood disorder had significantly improved, but after this accident, he became depressed again and he certainly had symptoms of Major Depressive Disorder, which include depressed mood, loss of interest in activities, insomnia, and problems with thinking and concentrating, as well as some passive suicidal thoughts.

(g) After the accident, the severe physical injuries and complications the claimant developed some post-traumatic type symptoms certainly in the immediate aftermath, appeared to meet criteria for post-traumatic-stress disorder. He met criterion A (traumatic event), criterion B (recurrent involuntary and intrusive distressing memories and dreams, though these symptoms have settled to some degree), criterion C (namely found it hard to think or talk about what happened and has blocked out some details, criterion D (having marked negative alterations in cognitions and mood including an inability to remember aspects of the trauma. He had persistent exaggerated negative beliefs about himself and the future, that he was in a negative emotional state. He had lost interest in significant activities, felt detached, and estranged from others, found it hard to experience positive emotions. He also met criterion E (in that he could be irritable, marked sleep disturbance, and concentration problems).

(h) The accident exacerbated his underlying depression from his previous work injury, but the onset of posttraumatic-stress-disorder seem to be a new condition specifically related to the accident of 15 January 2021.

(i) The main limitations in regard to work appeared to relate to the claimant’s physical injuries, best commented on by relevant specialists. He did, however, have moderately severe psychiatric and psychological symptoms which would also impact on his work, particularly in relation to motivation, concentration, and interacting with other people.

(j) Dr Samuels further opined that the claimant’s depressive and post-traumatic symptoms were not so severe that they would totally incapacitate him from work, but they would certainly impact upon his work functioning. He would be capable of doing some sedentary work on a part-time basis, particularly if he received more assertive psychological and psychiatric treatment.

(k) Finally, the prognosis was guarded. He took a long time to recover from the first work injury and was then seriously injured in the subject accident and now his psychiatric symptoms have significantly worsened.

(l) In evaluating WPI from this accident, Dr Samuels was of the opinion that his pre-existing psychiatric and psychological symptoms were significantly improved prior to this accident and he made no apportionment for pre-exiting impairment

Report of Dr David Freiberg, consultant physician in respiratory and sleep medicine, dated 1 May 2023

107. Dr Freiberg wrote the following report:

“He smokes daily 10 grams of tobacco via a waterpipe. He has had no previous history of lung disease up until his workplace accident.

He did work as a Stonemason in Lebanon. He came to Australia and in 2014 he injured both of his wrists which required 7 operations. He finally recovered from this and he returned to full-time light duties working as an Electrician in 2021 and then he had a major trauma while changing a tyre in a work-related incident where he was hit by another car. He had a right femoral comminuted fracture requiring an intramedullary nail. This was complicated by bilateral pulmonary emboli and depression. He has also had right patella femoral dysfunction as a consequence.

He complains of residual exertional dyspnoea with an MRC dyspnoea score of 3/5. He was on Eliquis for pulmonary emboli. This has been weaned off.

His weight at the time of the 2021 accident was 85 kg. His weight today is 91 kg. He has gained 7% of his total body weight. His BMI has increased from the lower overweight to the higher overweight range (BMI 26.5 to BMI of 28).

He remains in chronic pain. His average pain is 6 out of a maximum of 10 on a Pain Scale. He uses Endone 5 mg before retiring, Mirtazapine 45 mg 1.5 tablets nocte, Melatonin 1 nocte and Norgesic 3 to 6 tablets a day.

The majority of the above medications are used at night because sleep is a major issue for this man. He is in the bedroom for 12 hours. He sleeps an interrupted 3 to 5 hours. He wakes because of pain, he can wake because of anxiety, he can wake from snoring, he can wake from restless leg movements. He sleeps on his left side or his back. He cannot sleep on his right side because of pain. He is unrefreshed by his sleep. He scores 17/24 on an Epworth Sleepiness Score. This is severe hypersomnolence. It affects his activities of daily living such as performing housework, socializing, concentrating, working on the computer or watching television.

As a comparison on a typical nights sleep prior to his workplace accident he would have an uninterrupted 10 hours sleep. He was a right sided sleeper. He was not known to snore. There were no features of periodic limb movement disorder. He would wake refreshed from his sleep. He would score 0/24 on an Epworth Sleepiness Score.

Clinically he is an overweight man with partial nasal air flow obstruction, a Mallampati class 3 airway and clear lung fields to auscultation.

I enclose his detailed lung function tests performed because of his exertional dyspnoea, smoking history and pulmonary thromboembolic disease. He has normal spirometry with no airway obstruction but a moderate impairment of gas exchange (DLCO 68% of predicted normal) in the presence of borderline normal lung volumes. The reduced gas exchange can reflect pulmonary vascular bed function and suggest an impairment from his pulmonary thromboembolic disease. Further evaluation of this would require further lung scans.

For further evaluation of his sleep, he requires a full diagnostic polysomnogram. I have arranged for these interventions.”

Certificate of Medical Assessor Grainge dated 22 May 2023

108. Medical Assessor Grainge determined that the claimant’s “pulmonary emboli were caused by his motor vehicle accident or the consequences of it. Either the motor vehicle accident and the immobility due to this led to clots which then migrated to his lungs. or the operation required to place an intramedullary nail led to intra-operative or perioperative clotting which then led to his pulmonary emboli. But for the road traffic accident, the claimant would not have developed pulmonary emboli.”

Determination of Medical Assessor David McGrath dated 23 July 2023

109. Medical Assessor McGrath examined the claimant and considered the issue of causation:

“The claimant was involved in an MVA on 15 January 2021. He was struck by a car as he was standing towards the edge of the road.

His injuries about the right hip/leg are well documented in the records. There is no convincing evidence of a rateable impairment of either wrist, previously injured in an industrial accident. His soft tissue to the lower back is superimposed upon pre-existing impairment.”

110. He provided diagnosis and reasons:

“As a result of the MVA, he sustained a fracture of the right femur which required surgery. It is possible that he has an undiagnosed right hip soft tissue injury as he now has a functional loss of abduction of the hip (possibly adductor insertion). He has received some injection procedures to this region without any satisfactory result. In the knee region, he has a constant pain most likely as a result of the in situ medullary nail. The right knee only began hurting after fixation screws were removed. He is considering a second opinion on removal of the nail.”

Determination of Medical Assessor Samuel Lim, dated 2 November 2023

111. Medical Assessor Lim examined the claimant and reached the following diagnosis:

“The claimant presents with signs and symptoms consistent with the diagnosis of posttraumatic stress disorder. He fulfils the Consistent with the DSM-5 diagnostic criteria for this condition. His involvement in the subject motor vehicle accident, in which he sustained significant physical injuries and which he would understandably have believed might have resulted in his demise, would satisfy criterion A for the diagnosis as per the DSM-5. He presents with additional symptom clusters for this condition, which include flashbacks and nightmares, avoidance behaviour mainly characterised by emotional blunting and negative alterations in his moods and cognitions. He also presents with hyperarousal symptoms manifesting as episodic panic attacks, which occur in association with his flashbacks and nightmares. I note that he had previously been identified as having a Major Depressive Disorder. In my opinion, the nature of his current presentation is that while he has depressive symptoms, I believe that these would be subsumed under the persistent negative mood changes that occur as a result of his posttraumatic stress disorder rather than being reflective of a separate diagnosis.”

112. He further considered causation:

“The claimant reported requiring treatment for his mental health prior to the subject motor vehicle accident due to the pain and disability associated with his injuries of 2014. From his description, these stabilised to a degree, particularly after he was able to re-enter the workforce. From his description, he was able to cease all treatment for his mental health for at least 12 months before the subject motor vehicle accident. His current symptoms relate directly to the circumstances of the subject motor vehicle accident. His history is also negative, for him having experienced posttraumatic stress disorder symptoms prior to the subject motor vehicle accident. I believe that it is likely that he had a pre-existing Major Depressive Disorder due to his injuries of 2014, which was more or less in remission at the time of the subject motor vehicle accident. I believe that his posttraumatic stress disorder was caused by the subject motor vehicle accident. He also reported being involved in a subsequent motor vehicle accident in May 2022. Whilst he reported not sustaining physical injuries from this second motor vehicle accident, he did endorse an exacerbation of his psychological distress. I believe that he experienced an exacerbation of his posttraumatic stress disorder symptoms following this second motor vehicle accident in May 2022.”

Dr Alan Home

113. Dr Alan Home on 4 March 2024 took the following history:

“The claimant states that he sustained injuries in an accident, which occurred on the M7 at Rooty Hill. He was helping friends to change a tyre on a trailer, following a fishing trip.

He and three of his friends were standing on the road-side of the vehicle. He says that a car struck the claimant and his friends directly.

...

He was subsequently transported by Ambulance to Westmead Hospital, where imaging demonstrated a subtrochanteric fracture of the right femur. This was managed with open reduction and internal fixation with a femoral nail, performed on 17 January 2021.

His recovery was complicated by the complication of bilateral pulmonary emboli, for which he required anticoagulant treatment.

He was discharged one week after admission.

His orthopaedic injuries were further assessed by Mr John Fox, orthopaedic surgeon, who performed surgery to dynamize the femoral nail, undertaken on 10 March 2021, by exchange of the distal interlocking screws with a dynamic locking bolt.

Subsequently he came under the care of Dr Molnar, orthopaedic surgeon. There was a

further period of physical therapy and hydrotherapy-based exercise.

In March 2022, he was referred by Dr Molnar for MRI scan imaging of the right hip and right knee. The MRI scans of the right hip demonstrated a defect in the superior labrum.

MRI scans of the right knee demonstrated bony bruising at the lateral aspect of the knee joint.

In August 2022, he underwent removal of a distal bolt from the right thigh, just above the knee.

On 21 December 2022, he underwent an arthroscopy of the right hip, at St George Private, and performed by Dr Molnar. The claimant recalls that the procedure was painful, and there was no subsequent benefit.

The claimant reports the subsequent use of analgesia.

He did undergo a trial of right hip PRP injections on one occasion, however this was unsuccessful and he did not proceed with further injections.

His general practitioner, Dr Awada has recommended a corticosteroid injection into the right hip. The claimant awaits that procedure.

He advised he is currently attending a physiotherapy at weekly intervals, for treatment of his hip and knee complaints. He states that attends a gymnasium, where he undertakes cardiovascular and leg strengthening exercises twice weekly.

He is now considering removal of the metalwork, on the advice of his general practitioner.

He is discussing this with his treating surgeon, Dr Molnar, presently.

He reports the current use of the following medications:

• Mirtazapine, 75mg nocte

• Norflex, 100mg – two tablets twice daily

• Belsomra, one tablet nocte

• Tramadol, 50mg instant release – one to two tablets daily.”

SUBMISSIONS

claimant’s submissions, undated.

114. The central submissions of the claimant, undated but appearing at 1-20 of the claimant’s final paginated bundle.

[4] Medical Assessor Lim assessed Whole Person Impairment (WPI) from psychological injuries at 15%.

[7] On 23 July 2023, medical assessor McGrath determined that the claimant has sustained 4% WPI arising from the injuries to his lumbar spine, right-hip, right-leg, right-knee, surgical scarring of the right knee, and numbness of the posterolateral aspect of the right-thigh.

[14] It had been the claimant’s pre-accident intention to obtain qualifications to work as an electrician and intended to do so in the future on a full-time basis.

[15] He has never been able to return to work since the accident.

[16]-[32] Describes the accident, the immediate aftermath, the period in hospital, the surgeries, the treatment by Dr Molnar, the progress of the recovery until December 2021, the continuing pain in the right-knee and right-groin, the continuing treatment by Dr Molnar, and the arthroscopy to the right hip on 21 December 2021.

[33] Sets out the nature and extent of the claimant’s continuing complaints in respect of his right-hip and right-knee, ankle, and femur injuries.

[34] The claimant’s experience of his symptoms, pain and suffering are set out in his Statement of 27 August 2024.

[35] Sets out the post-surgical pulmonary embolism and the difficulties with sleeping.

[36] The referral to Dr Freiberg

[37] Ongoing permanent debilitating psychological injuries and disabilities, and the treatment by Dr Younan.

[40] Mr Bazzi offered the claimant part-time work as an electrical trade’s assistant and the claimant began to work on or about 6 February 2020, initially working for about two (2) days a week and gradually increasing his hours such that by January 2021, he was on average working three (3) to four (4) days a week.

[41] The claimant had some difficulties and restrictions with that work due to ongoing pain in his wrists and low back but generally coped well. Before the accident occurred, he had discussions with Mr Bazzi about completing courses to become a licensed electrician.

[42] Before the accident, the claimant intended to work his way up to working full time as an electrical trade’s assistant.

[43] Mr Bazzi says that he observed the claimant coping well with his work. He required assistance with heavy lifting or carrying. Before the accident he did not observe the claimant to have any significant work restrictions. He had real potential of becoming a qualified electrician.

[44] “Ali worked smart. He sought help with heavier work and rested when he could. He occasionally, but not regularly, showed signs of sore wrists or ache in his low back but it never seemed to stop him working.”

[45] The Assessor would, it is submitted, be satisfied that in and as a consequence of the subject accident, the claimant suffered a severe injury to his right-leg, particularly to his ankle, knee, femur and hip and a significant and permanent aggravation and exacerbation of a pre-existing back injury and condition as well as a sleep disorder, which has been productive of severe fatigue and also has suffered from severe depression and post-traumatic stress disorder. The detrimental effects of those injuries and disabilities continue to date and, it is submitted, are likely to be productive of incapacity for work and pain and emotional distress into the foreseeable future.

115. I have carefully read the submissions for the claimant on the damages for non-economic loss but for brevity, do not specifically refer to them but shall revert to this section of the submissions in my consideration of non-economic loss damages.

[61] Sets out the claimant’s work history in Lebanon, his migration to Australia in June 2014, his intention to become a qualified plasterer, his inability to continue that work due to his workplace injury on 18 September 2014.

[62] Refers to his education including the Diploma of Electronics in Lebanon. At the time of the accident, he was engaged in consistent work as an electrician trade’s assistant and was well advanced in plans to obtain qualifications as a qualified electrician. He intended to return to work full-time and to work to at least normal retirement age.

[63] His unrelated injuries causing pain and restriction in both wrists and the low back that those symptoms and restrictions did not prevent him from regularly and successfully in performing work duties as a trade’s assistant to electricians and would not have stopped him from working as such or as a qualified electrician on a full-time basis.

116. I have carefully read the Statements of Jamil Bazzi, Zeinab Mourad, and Nasser Mourad and the relevant part of my damages assessment refers to what is helpful and relevant.

[74]-[84] The Submissions refer to a number of reports to which I will refer as I consider relevant and helpful in the relevant part of my Consideration.

[85] The claimant was not able to continue suitable light duties work which he tried in 2022, even with a sympathetic employer. Since he arrived in Australia in 2014, he gained a reasonable level of English, but still has difficulties with the language, particularly with reading and writing. He has no work experience in clerical or sedentary work, or for retail or sales work. He has very limited computer skills, suffers from constant fatigue, continuing severe difficulties with concentration and has significant difficulties sitting, standing, or walking comfortably for anything other than short periods of time.

[85] (Continued) the claimant may have some residual earning capacity, but not realistically able to be exercised by him on the open labour market.

[86] Working for Mr Bazzi, the claimant earned for the period 3 February 2020 to 21 June 2020 an average of $547.00 net per week. For the period 1 July 2020 to 3 January 2021, he earned an average of $627.00 net per week.

[87] When he returned to work after the motor accident, between February and July 2022, he only earned $320.00 net per week. He has not worked or felt capable of working in any employment since July 2022.

[88] If the motor accident had not occurred, he would in 2021 have continued to gradually increase his hours and days of work and his earnings as a trades assistant who had probably have the average earning of at least $750.00 net per week in 2021.

[89] The claimant had intended during 2021 to complete a Certificate III course in Electrotechnology and from 2021 to date, and continuing to age 67, he probably would have earned from full-time, or near to full-time, work as an electrician at least $1,000.00 net per week.

[90] He concedes that he would have continued to experience some limited difficulty with work as a trade’s assistant or as an electrician due to the continuing effects of his 2014 accident.

[91] By working “smart”, getting help with heavier work, and by picking and choosing suitable work, more likely than not he would have been able to work on a full-time basis and probably as a qualified electrician.

[92] Submission regarding Application of a slightly higher deduction from vicissitudes.

[93] The subject accident has rendered the claimant totally incapacitated for work available to him on the open labour market.

[94] Damages ought to be assessed for Past & Future Economic Loss and Loss of Earning Capacity on a mathematical basis. A buffer would not be appropriate.

Insurer’s submissions – PIC damages assessment, dated 24 September 2024.

117. Long-standing history of bilateral wrist injury, lower back injury, and psychological condition.
118. EML was the relevant Insurer and paid $808,116.18 for the claimant’s treatment expenses alone arising from the work accident of 18 September 2014

(a) Fell off a ladder and fractured both wrists, injured his lower back, and reported psychological symptoms.

(b) Told Dr Breit who saw him on 14 September 2017 that he never had a day free of pain since his work injury. Dr Breit assessed WPI at 34%

(c) In November 2019, the claimant was certified unfit for work as a result of the work accident.

(d) Dr Dias reported in July 2019 that the claimant stated that he had continued to suffer ongoing symptoms, pain, stiffness, and discomfort affecting his right and left wrists. His symptoms and disabilities had not significantly altered since his last assessment in February 2017.

119. Medical Assessor Lim assessed WPI at 4% (this was referred to a subsequent motor vehicle accident, not the 15 January 2021 motor vehicle accident in which Medical Assessor Lim assessed the claimant to have suffered a post-traumatic stress disorder with WPI at 15%
120. The claimant has not identified evidence that he recovered from his 2014 injuries.
121. The claimant maintains that the accident caused injuries to his wrists. This is not supported by medical evidence.

Past economic loss

The regulatory Framework and Caselaw

122. This decision has taken into account the relevant provisions of the Motor Accidents Injuries Act 2017 (MAI Act) and in particular sections 7.36(1), 7.36(3), 7.36(4) [The sections relevant to assessment of non-economic loss, damages are referred to elsewhere].

[21] (a) In September 2017, Dr Breit opined that the claimant would never return to any manual form of labour. Given his restrictions, he could work four (4) hours a day, five (5) days a week, where there was no forceful repetitive use of either arm, a five (5) kilogram lifting limit, and where he could sit, stand, and move according to comfort.

(b) The claimant was assessed by Dr Farag and Professor Bright. The claimant reported that he had not returned to any form of employment ie., had not worked for nearly four (4) years. Dr Farag and Professor Bright considered the claimant was capable of undertaking sedentary and semi-sedentary work but could not return to working in his pre-injury capacity.

(c) (i) The claimant told the Assessors that he did not consider himself capable of doing any work in the future as a result of the persistent symptoms in his hands.

(ii) He briefly returned to work with a friend as a trade’s man assistant carrying tools, but found that this was too physically demanding.

(d) Returned to work in 2017 as an electrician’s assistant for AGV electrical. Worked about five (5) to six (6) days over a two (2) month period. He struggled with heavier tools or equipment. He decided the work was too hard and had not worked since.

(e) In July 2019, Dr Dias opined that the claimant was totally unfirm for any form of gainful employment on the open labour market.

(f) On 12 November 2019, it was recorded that the claimant continues to present with significant pain in the lower back and bilateral wrists resulting in an overall impaired functional capacity.

[22] The claimant had a range of pre-existing injuries and disabilities before subject accident. To suggest that he would have returned to any work is misleading and incorrect. He had not recovered from his 2014 injuries.

[24] No damages should be awarded for future economic loss.

Insurers submissions on past economic loss

123. The Insurer argues that above for $15,000.00 inclusive of superannuation is appropriate compensation for the past.
124. The Insurer maintains [3.24] that the claimant has not established any past economic loss, but if I consider there is a loss, it should be limited by way of a buffer and that $15,000.00 inclusive of Superannuation is appropriate.

Insurer’s further and final submissions – dated 19 November 2024.

125. These submissions are 17 pages, and it is inevitable that there is some degree of repetition. Accordingly, I will focus on the central submissions.
126. The first several pages deal with the claimant’s English language skills and whether or not he needed an interpreter and the manner in which he gave his evidence [2.1] “...tended to be vague and imprecise...appeared to downplay the extent of his English language skills.” ; [2.2] “...relied heavily upon an interpreter during cross-examination... assessments with Dr Breit, Dr Bertucen, Dr Canaris and Dr Ting proceeded without...an interpreter”
127. Statements (as specified) appear to not have had an interpreter.
128. [2.3] - [2.4] refer to medical examiner’s comments without the claimant’s capacity to speak English and his need of an interpreter.
129. The next section of the submissions addresses the issue of whether or not the claimant would have qualified as an electrician but for the accident [2.9] and the following.
130. [2.14] and following deals with the claimant’s pre-existent physical difficulties with his wrists.
131. Further paragraphs deal with the claimant’s relationship with Mr Bazzi and that he was still considering moving to Canada.
132. At [2.21] and following, the submissions deal with Mr Bazzi and submits that he is not an impartial witness, [2.24] not a credible witness, [2.27] Mr Bazzi’s oral testimony was inconsistent with his statement entitled Response to Direction for Production from AJB Electrical.
133. The Insurer at [3.6] argues that despite the determination of a 15% WPI by Medical Assessor Lim, in practical terms the claimant’s claim has been framed primarily on the basis of physical injuries. The insurer argues that comparatively, the additional impact of psychological injury arising from this accident has been relatively minor.
134. The insurer Submitted at [3.9] that care needed to be taken to avoid overcompensating the claimant, not just with respect to non-economic loss, but also with respect to economic loss. It submits that an allowance for $150,000.00 for non-economic loss is appropriate.
135. The Supplementary Submissions on Assessment of Heads of Damages are dealt with when I deal with the Assessment of Damages.

Damages for non-economic loss

136. The key elements of the claimant’s Solicitor’s Submissions are:

[46] Post Accident, the claimant has experienced constant, and regularly severe, pain and has also experienced significant emotional distress and that he is likely to continue to experience and suffer from regularly severe and constant pain and significant and continuing emotional distress and significant physical restrictions.

137. The submission then refers to the subjective factors relevant to the plaintiff and that by 2020, he had achieved and maintained a level of recovery from his earlier injuries and that he had plans to return to the paid workforce to pursue a well-paid career as a qualified electrician.
138. The submission argues that these plans were already showing promise but were shattered as a result of the accident.
139. The submission at [52] refers to the claimant’s life expectancy and that he would continue to experience constant and regular, severe pain and a possibility that his pain will get worse as he gets older, and that his psychological state is severely impaired and that he has lost any hope of having a fruitful future.
140. The submission [53] cites Dr Lim, 2 November 2023: -

“The claimant relies on the report of Assessor Samuel Lim of 2 November 2023 wherein he stated “The claimant’s symptoms have taken on a chronic course and have persisted despite him taking doses of anti-depressant medication well above the standard therapeutic limits. A significant perpetuating factor in his condition is the persistence of pain and functional limitations as a result of his physical injuries.”

141. The further reports of Dr Younan are referred to at [58]: -

“The claimant refers to and relies upon serial reports of Dr Younan prepared between March 2022 and 10 May 2024, wherein the doctor recorded and reported upon severe and persistent symptoms of depression and despair experienced by the claimant since the date of the subject accident.”

142. At [60], the Submission made for claim for damages for non-economic loss of $450,000.00.

Insurer’s further submissions on non-economic loss

143. The Insurer submits that the claimant’s physical injuries in the subject accident caused minimal additional functional decline in contrast to the 2014 accident.
144. Dr Samuels opined that the depression experienced by the claimant in regard to the 2014 accident was exacerbated by the subject accident, and that the claimant’s main limitations for work appeared to arise in the context of physical injuries rather than psychological.
145. The insurer maintains at [3.9] that care needs to be taken to avoid overcompensating the claimant, and that an allowance of $150,000.00 for non-economic loss is appropriate.

Legislative and regulatory framework

Non-economic loss

146. Non-economic loss is defined in s.1.4 of the Act to mean:

(a) "pain and suffering;

(b) loss of amenities of life;

(c) loss of expectation of life, and

(d) disfigurement"

147. The maximum that may be awarded under this head of damages has since
     1 October 2024 been $654,000.00 [s 4.13(1)].
148. The s 4.13(1) figure is merely a cap and the claimant being entitled to non-economic loss damages they are assessed in accordance with common law principles within the confine of the cap in the matter of Hodgson v Crane [2002] NSW CA 276 (Crane). : RACQ Insurance Ltd v Motor Accidents Authority of NSW (No.2) 2014 NSW SC 1126. See also Hoffer v Brown [2009] NSW DC 32.
149. The amount of non-economic loss damages to be awarded should be proportionate to the claimant's injuries and disabilities:

"11. it is a relationship of the award to the injury and its consequences which is to be proportionate It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. ...The principle to be followed .... It is that the amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused. It is to be proportionate to the situation of the claimant and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring to allow for differences between the circumstances of other cases and the circumstances of the case in hand." [Planet Fisheries Pty Ltd v La Rosa (1968} 119 CLR 118 per Barwick CJ, Kitto and Menzies JJ] [at para 11]

150. A key principle is that the amount assessed for non-economic loss should be comparable to awards of non-economic by other assessors and Courts [James Hardie & Co v Newton [1977] 42 NSWLR 729 as per Handley JA at 732}.
151. The amount awarded is not assessed on the basis of a percentage of the maximum but on the basis of what the appropriate dollar amount is. The non-economic loss figure awarded is not required to be proportionate to the maximum. This was rejected in the matter of Crane.
152. The degree of WPI is not a reliable indicator of the severity or otherwise of the claimant's injuries. Whole Person Impairment is a statutory method of assessing entitlement. It does not directly measure incapacity, pain and suffering.

Consideration of non-economic loss damages

153. The claimant was, at the time of this accident, a vulnerable person and susceptible to significant trauma of a psychological nature as in fact happened to him and described by Medical Assessor Lim. (See Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 where the primary Judge applied the Common Law Principle of eggshell skull).
154. He had had a number of significant disappointments and stressors which are described or referred to above.
155. It is true that care must be taken that the claimant is not overcompensated, bearing in mind that he has received compensation for his physical injuries arising out of the 2014 accident.
156. The tortfeasor had to take the claimant as it found him, namely a person who as a result of the 2014 accident had persisting physical pains as it happened to both wrists and to other areas of his body. This matter is a classic illustration of the 'eggshell skull' principle.
157. Dr Younan on 10 March 2022 opined that on the whole, the claimant continued to be distressed by his symptoms and the prognosis for full recovery was poor and that regardless of any treatment, residual anxiety will persist, and he would remain vulnerable to set back and to further anxiety and/or depression on exposure to new stressors.
158. This accident was clearly a significant accident and a very traumatic accident for the claimant. He describes it in detail at [17] to [32] above. The impact was unexpected [25] and he felt [26] instant pain and thought he was going to die. He could hear people screaming [28] and the trauma and anxiety continued for what seemed to him ‘like an eternity’ [30]. He finds it difficult to talk about the accident [32].
159. Prior to this accident, the claimant had made a significant improvement from his psychological symptoms. Although he had been seeing Dr Younan for a number of years, he had stopped seeing him in 2019 because he felt that there had been improvement in his mental health [26].
160. Dr Lim accepted at [19] that

“From his description, he was able to cease all treatment for his mental health at least 12 months before the subject motor vehicle accident. His current symptoms relate directly to the circumstances of the subject motor vehicle accident.

His history is also negative, for him having experienced Posttraumatic Stress Disorder symptoms prior to the subject motor vehicle accident. ... It is likely that he had a pre-existing Major Depressive Disorder due to his injuries of 2014, which was... in remission at the time of the... accident... the (Posttraumatic Stress Disorder) was caused by the... accident. I believe that he experienced an exacerbation of his Posttraumatic Stress Disorder following this second... accident in May 2022”

161. Further, apart from his increased low back symptoms, he also experiences problems with his right-hip and knee, and he was having a lot more psychological treatment than before the accident [33].
162. He said at [34] that his accident involving the motorcyclist in May 2022 had only affected him for a short time.
163. The claimant agreed in cross-examination [43] that he struggles to perform any task involving tight-gripping or heavy-lifting and that he was having those difficulties as at 2019. He agreed that he did have difficulties lifting and gripping right until this accident but said that the symptoms had improved a lot about the time he started working and that after he went back to work, he was seeing improvements day after day.
164. The claimant could not remember sufficiently to answer a number of questions which were put to him saying it was ‘a long time ago’.
165. The claimant agreed that he did have a significant problem with his left wrist which would cause him difficulties with working activities and that he had limited movement with his right wrist and was still restricted ‘a little bit’ with lifting. He could lift more than two kilograms, but it would depend on his position, whether he was standing or seated [44].
166. The claimant conceded at [39] that he had problems with his wrists and those problems caused difficulties with driving right up until the accident, but notwithstanding those difficulties, he had still driven.
167. The claimant agreed that he had known Mr Bazzi for over 20 years because they were from the same village.
168. The claimant and Mr Bazzi were obviously very well known to each other and had been for many years. There was also a familial relationship, although not a close one, between Mr Bazzi’s wife and one of the claimant’s relatives.
169. Without forming the view that Mr Bazzi would give untrue evidence for his friend, it is inescapable as a matter of common sense that there would have been an understandable and possibly not deliberate but unconscious partiality to try and help his friend and objectively this, at least to some extent, undermines the objective credibility of Mr Bazzi’s evidence and gives rise to an inference that Mr Bazzi would be, at least to some degree, partial towards the claimant.
170. Medical Assessor Samuel Lim diagnosed post-traumatic stress disorder although the May 2022 accident caused an exacerbation of his condition.
171. Dr Samuels [107] considered that while the depressive and post-traumatic symptoms were not so severe as to totally incapacitate him for work, they would impact on his work functioning. He could work on a part-time basis if he received more assertive treatment. His prognosis was guarded.
172. Dr Canaris [105] also felt that the claimant’s prognosis was guarded.
173. Dr Freiberg [108] noted that the claimant had had a major trauma while changing a tyre when he was hit by another car, that he complained of residual exertional dyspnoea with an MRC dyspnoea score of 34/5.^[1]
174. Dr Freiberg noted the medications which the claimant was taking, noting that they were mainly taken at nights and noted that he remained in chronic pain, and reached 6 out of a maximum of 10 on the pain scale. He was in his bedroom for 12 hours but slept for an interrupted three to five hours, waking because of pain, anxiety and restless leg movements. He sleeps on his left slide or on his back but cannot sleep on his right side because of pain. He is unrefreshed by sleep and scored 17/24 of the Epworth Sleepiness Score.
175. Dr Freiberg was of the opinion that as a result of the claimant’s insomnia due to chronic pain, and his sleep disordered breathing, he had developed hypersomnolence. His hypersomnolence required him to have supervision if he needed to drive more than short periods and required him to have constant supervision in his attempt to return to his workplace which ultimately was unsuccessful. It had been demonstrated that the claimant’s hypersomnolence had prevented him from returning to his workplace because of his inability to focus, the risk of workplace errors, and the need to be supervised in anything that he undertook.^[2]
176. Dr Mounir Younan [95]-[96] on 10 March 2022 reviewed the claimant and believed he had developed a psychological disorder which had been diagnosed as major depression. In his earlier report of April 2021, he had found him again suffering from depression and post-traumatic stress disorder, unable to sleep at night and in the few hours that he managed to sleep at night, he was troubled by nightmares and flashbacks which never left his mind. He suffered from an ongoing feeling of anxiety and hypervigilance.
177. Prior to the accident, he had received appropriate treatment and rehabilitation and by the end of this initial period, he had been much improved and had begun to study online to become an electrician and was hopeful about starting a new working life.
178. The thrust of the insurer’s Submissions including the supplemental submissions is to invite you to draw the inference that the claimant, to put it kindly, was not being entirely honest in respect of his English language skills and he should not be accepted unreservedly as a credible witness.
179. The insurer, in fact, contended that the claimant has tried to minimise the impact of the 2014 accident and the unrelated injuries and had grossly overstated any additional functional incapacity arising from the subject accident [1.4-2.1].
180. I did not form the view that the claimant ‘hid behind an interpreter’ to try and obtain some forensic advantage or acted otherwise than honestly in wishing to have his evidence taken by an interpreter.
181. Cross-examination, as a matter of common sense, can be a confronting experience and even when the witness had tolerably good English, it was not unreasonable for him to wish to have the assistance of an interpreter.
182. The use of the interpreter, in fact, gave rise to a great deal of difficulty in the case as the claimant was seated at one end of the room (because he was speaking so quietly) and the interpreter was online.
183. In any event, I came to the view that the insurer in its submissions including the supplemental submissions underestimated the significance of the accident and its psychological and psychiatric consequences.
184. The key to an accurate understanding of this case is to be clear about the psychiatric consequences of the accident.
185. The claimant was a vulnerable person. He had sustained significant physical injury to his wrists in a work accident in 2014 which had led to ‘7 or 8 surgeries’ including fusions on the left and right hand and subsequent removal of plates and screws, the last surgery being as recently as the end of 2018.
186. The claimant told Dr Lim that he had also developed difficulties affecting his mental health due to these injuries and commenced seeing Dr Younan in 2016 on a monthly basis. He told Dr Lim that he had developed depressive symptoms due to a number of factors including being new to the country, the injury impacting his ability to work, and his persistent pain. Dr Younan had prescribed Mirtazapine 45mg daily.
187. Further, the claimant told Dr Lim that there had been family pressures and difficulties after his father had a stroke. He was the oldest child and at the time his injuries meant that he struggled to stand up and walk. He felt a sense of cultural obligation to return home earlier than he was able to. He continued to harbour a degree of guilt.
188. Further, the claimant had separated from his wife in mid-2022 and was on his own.
189. Dr Lim considered that the claimant had a pre-existing Major Depressive Disorder which was in remission at the time of this accident.
190. Dr Lim’s report is objective, independent, carefully constructed, well analysed, and should be accepted as accurate.
191. Dr Bertucen’s report of 29 June 2021 to the claimant’s solicitor does not add a great deal of value to the expert opinion. Dr Bertucen did find that the claimant was suffering chronic post-traumatic stress disorder and a comorbid adjustment disorder with features of depressed mood in partial remission. As to the adjustment disorder, it was longstanding and following the 2014 accident and in substantial remission in the six months before the subject accident. Noting that the claimant had returned to work and over most of 2020 he had found that his mood and self-esteem had improved.
192. Dr Bertucen was not persuaded that the claimant’s psychological condition had stabilised. Accordingly, the prognosis was uncertain.
193. Dr Canaris [15 February 2022] also, according to the claimant’s solicitor on a medicolegal basis, considered that the claimant’s condition was consistent with a major depressive disorder with features of post-traumatic stress disorder and a comorbid somatic symptom disorder with predominant pain.
194. Without any criticism of Dr Canaris, his analysis is not as thorough or convincing as that of the independent Medical Assessor Lim.
195. Dr Younan [11 March 2022] was the treating psychiatrist who had no hesitation in diagnosing post-traumatic stress disorder, manifested by recurring distressing memories of the accident, flashbacks, avoidance, and other symptoms and described it as “this is not a minor injury and is totally related to the accident on
     15 January 2022’.
196. Dr Younan also considered that there was a major depressive disorder caused by the accident.
197. Dr Samuels was not independent, having been retained by the insurer. His report of
     2 February 2023 did have some inaccuracies. For example, at [6], Dr Samuels was given an inaccurate history by the claimant’s solicitor that he was an electrician.
198. It is significant that the history of the accident [66] is very brief and arguably does not give sufficient emphasis to it as an extremely traumatic and life-threatening event.
199. Dr Samuels concluded that the onset of post-traumatic stress disorder seemed to be a new condition specifically related to this accident [88]. He considered that the claimant had “...moderately severe psychiatric and psychological symptoms which would also impact upon his work, particular in regard to motivation, concentration, and interacting with other people.” But [90]-[91] “his depressive and post-traumatic symptoms are not so severe that they would totally incapacitate him for work but they would certainly impact upon his work functioning. He would be capable of doing some sedentary work on a part-time basis, particularly is he receives more assertive psychological and psychiatric treatment.”
200. I conclude that the weight of the psychiatric opinion supports the proposition that the claimant sustained a significant post-traumatic stress disorder as described by Dr Lim. Dr Lim considers the condition to be permanent.
201. I assess damages for non-economic loss at $400,000.00.

PRINCIPLES AND CASE LAW - PAST ECONOMIC LOSS

202. The fundamental principle for assessing or awarding damages to an injured person is that a Tribunal should assess damages so that they represent no more nor less than the persons’ actual loss: Livingstone v Rawyards Coal Co [1880] UKHL 3.
203. Damages for personal injury are given on a once and for all basis irrespective of whether the person’s condition worsens or improves.
204. In cases such as Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined is whether a claimant has sustained a loss or diminution in his earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard for the provisions of Div 4.2 of the MAI Act.

Past Impairment of Earning Capacity and its Economic Consequences

205. The claimant’s central submission is that he [45] suffered a severe injury to his right leg, particularly through his ankle, knee, femur and hip, as well as a permanent aggravation and exacerbation of a pre-existing back injury as well as an indirect consequence of causing a serious sleep disorder. He has had severe fatigue, severe depression, and post-traumatic stress and the combined effects of those injuries have prevented him from working since the accident.

Submissions of the Insurer

206. The central submission of the insurer is that the claimant had a long-standing history of bilateral wrist injury, lower back injury, and a psychological condition.
207. Further, the claimant had been certified unfit for work as of November 2019 and his symptoms and disabilities had not significantly altered since his last assessment in February 2017.
208. The claimant himself had told the Medical Assessors that he did not consider himself capable of doing any work as a result of his symptoms to his hands.

Consideration of Past economic loss

209. I find that the claimant has not established on the balance of probabilities that he would in the past in the period since this accident, have acquired qualifications to allow him to obtain employment as an electrician.
210. Mr Bazzi’s evidence is not reliable. First, he is partial as there are strong ties by reason of the village in which they both grew up and there would appear to have been ties of friendship over decades.
211. There is limited evidence of what the claimant earned when he was working for Mr Bazzi’s company. As the insurer submits [3.19] the closest pay slip is that of the
     18 January 2021 and that pay slip provided that the total payments with respect to ordinary pay amounted to $6,375 for that year to that date. The insurer further submits that the evidence did not establish that the claimant was working full time. The submission on behalf of the claimant that a net loss of $750 per week to
     31 December 2021 and then $1,000 net per week to the age of 67 is not substantiated by the evidence nor is there warrant to increase the ‘vicissitudes slightly to 20%’ justified.
212. Nevertheless, I accept that the claimant had received psychiatric treatment and rehabilitation and had made some improvements and according to the history given to Dr Younan, had begun to study online to become an electrician and was at least hopeful of starting a new working life.
213. According to the evidence the claimant [26] gave at the Assessment Conference, he had been seeing Dr Younan but stopped seeing him in November 2019 because he felt that there had been some improvement in his mental health.
214. In his report of 10 March 2022 Dr Younan, in his assessment of Adaptation, as signed three-Moderate impairment with this comment

“cannot work full time. With difficulty is trying to cope with the reduced hours which are 3 days per week, 2 hours each day. He stated that while going to work, he feels like “I am going to hell.””

215. The evidence allows me to conclude that if it had not been for the accident, the claimant would have had greater capacity to work, but the extent of the days per week and number of hours and the duties cannot be determined with precision.
216. I do consider that on the balance of probabilities, the claimant would have derived more income from the date of the accident, 15 January 2021, to date than $15,000 and that it is reasonable to assess the past loss of income on a buffer basis because the amount cannot be determined with precision.
217. Three years and ten months have elapsed since the date of the accident, during which period the claimant has not worked at all. I determine a buffer of $75,000 which takes into account past loss of superannuation.

Future economic loss and loss of superannuation

Regulatory Framework for future economic loss

218. Section 4.7 of the MAI Act: Future economic loss — claimant’s prospects and adjustments

(1) Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

How the Court deals with the assumptions of fact

219. Basten JA delivering the judgement of the Court 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."

Assumptions as to Future Economic Loss

220. The claimant was born on 15 December 1981 and but for the accident he would have had about a further 31 years until retirement at say, age 70, noting that if he had been self-employed but for the accident, he may have chosen to work longer.
221. At the time of the accident, the claimant had residual capacity for employment.
222. On the evidence, the claimant is likely to continue to be impaired at least for the short term and probably for the medium term and possibly longer. The nature of his impairment is such that it precludes him from employment.
223. Prior to the accident, the claimant had had physical consequences and impairment arising from the 2014 accident but was otherwise in good health.
224. But for this accident, the claimant was likely to have continued to work in some capacity within his physical constraints for an electrical contractor.
225. The claimant would probably have worked for Mr Bazzi, and such work would probably have continued to be available given that there were obviously close ties between them.
226. There is no reason to believe that such close ties would not have continued to apply.
227. The claimant, however, only had partial working capacity at the time of the subject accident but the precise extent of that residual working capacity cannot be determined by precision as it has not been established by performance or with precision by the evidence. I have referred to the opinion of Dr Younan.
228. If it had not been for this accident, it is likely that there would have been improvement over time. The opinion of Dr Younan offers evidence of this. The extent of such improvement cannot however be determined with precision.
229. Although the claimant has established that he had a serious psychiatric condition, post-traumatic stress disorder, which is likely to continue for the short to medium-term at least, the evidence does not establish that he will have it forever or in any event, until the age at which otherwise he would have retired.
230. All these elements lead to imprecision as to how long the claimant will be incapacitated for employment as a result of his accident, noting that he was already permanently partially incapacitated as a result of the 2014 work accident.
231. I reject the proposition as not consistent with the evidence that the claimant had no impairment likely to be productive of future economic loss, I consider there is and that it is likely to persist at least for the short to medium-term, if not longer.
232. This is a proper case for a substantial buffer to cover damages for future economic loss and the buffer I fix includes a consideration of loss of superannuation and of vicissitudes I determine the buffer in the amount of $275,000.
233. 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] NSWCA 13; (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).

Determination

234. I assess damages in the amount of $751,136 and that includes a consideration of loss of superannuation and vicissitudes.

Summary of damages

235. Buffer for past economic loss = $75,000
236. Fox v Wood = $1,136
237. Buffer for future economic loss = $275,000
238. General Damages (Pain and Suffering) = $400,000
239. 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= $26,756

(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): 5 hours claimed at $338= $1,690

Disbursements

Total of disbursements as per the claimant’s Assessment of Costs pursuant to scale as at 10 September 2024 (non-regulated): $13,556.14

240. 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 $60,451.80 (including GST). (Total cost of costs and disbursements and GST)

Total

241. Under ss 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim as $751,136.

^[1] MRC means Magnetic Resonance Cholangiopancreatography which is a type of MRI scan which produces detailed images of the biliary and pancreatic systems
^[2] Dr Freiberg 23 October 2023, page 4.