issued in accordance with s 7.6 (1) of the Motor Accident Injuries Act 2017

1. On the issue of liability for the claim, the insurer owed a duty of care to the claimant, admitted it breached that duty of care and the claimant sustained injury loss and damage as a result of that breach;
2. Under ss 7.36(3) and 7.36(4) of the Motor Accident Injuries Act 2017 (MAI Act), I specify the amount of damage for this claim is $2,466,258.92;
3. The claimant's economic loss is reduced by $204,246.88 and the insurer is to have credit for the payments made by the insurer pursuant to s 3.40(1)(b) of the MAI Act, and
4. The amount of the claimant's costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $150,359.65 inclusive of GST.

1. This dispute relates to an application for an assessment of a claim for damages (the Application) under s 7.36 of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 25 March 2018 (the motor accident).
2. Rosalind Elizabeth Abraham (the claimant) was aged 43 years at the time of the accident.
3. The claimant made an application for personal injury benefits in respect of the motor accident against Allianz Australia Insurance Limited (the insurer) being the compulsory third-party insurer of the vehicle at fault.
4. On 5 May 2020 the claimant made an application for damages under common law.
5. In a liability notice dated 26 April 2023, the insurer admitted liability.
6. An in-person assessment took place at the Personal Injury Commission (the Commission) in Sydney on 30 July 2025 and 30 September 2025. The claimant was directed to provide claimed costs and the insurer statutory benefits paid in further timetable.
7. The parties agreed that the following issues were required to be determined by me:

(a) the quantum of damages for non-economic loss;

(b) the quantum of damages for past loss of earnings or past loss of earning capacity, and

(c) the quantum of the claimant's damages for future loss of earnings or future loss of earning capacity.

(a) the insurer had made payments under s 3.40(1)(b) of the MAI Act (statutory benefits paid) in the sum of $204,246.88;

(b) payments made by the insurer under s 4.5(1)(d) of the MAI Act (Fox v Wood damages) amount to $nil.

1. The following documents were in evidence before the Commission and considered in making this determination. Contained in a joint bundle of two parts was the claimant's of 789 pages and the insurer's which contained 1064 pages summarised as follows:

(a) submissions of both parties;

(b) application for damages under common law dated 8 May 2020;

(c) statements:

(i) Rosalind Elizabeth Abraham dated 31 January 2023 and 21 July 2025;

(ii) Neil Stollznow dated 3 December 2019, 26 January 2021,20 January 20203 and 16 July 2025;

(iii) Anthony Abraham dated 20 January 2023;

(iv) Alexander Finnis 20 November 2019;

(d) Commission medical assessments:

(i) Medical Assessor Dr Mason dated 15 March 2022 and 4 April 2023;

(ii) Review Panel Determination Member Williams and Medical Assessors Canaris and Roberts dated 3 December 2024;

(iii) Delegates determinations dated 21 February 2023 and 19 July 2023;

(e) medico-legal reports:

(i) Dr Bodel dated 28 October 2020 (claimant);

(ii) Dr Hyde Page dated 10 December 2020 (insurer);

(iii) Dr Whetton dated 27 October 2020 (claimant);

(iv) Dr Anderson dated 16 October 2020 and 27 March 2025 (claimant);

(v) Dr Baron-Levi dated 24 September 2022, 4 April 2023 and 13 July 2025 (insurer);

(vi) Dr McIntosh dated 29 October 2021 (insurer);

(vii) Dr Sekel dated 21 May 2023 (insurer);

(f) vocational Assessment:

(i) Craig Martin dated 14 June 2022;

(g) treating records Lynette Tull psychologist (A20-24);

(h) report Dr Khan dated 7 February 2024 - consultant psychiatrist;

(i) report Dr Milic - clinical and forensic psychologist dated 16 May 2023;

(j) clinical records various (A25-37) and (R14 to R60);

(k) statutory declaration of claimant dated 22 February 2019;

(l) statutory declaration of Neil Stollznow dated 17 February 2019;

(m) letter from NSW Police dated 22 October 2019;

(n) records Sydney Local Court (R67);

(o) records NSW Police (R68);

(p) employer personnel files (R69 to R71);

(q) certificates of capacity, and

(r) economic loss documentation:

(i) professional summary;

(ii) academic transcript;

(iii) payslips 27 March 2017 to 12 March 2018;

(iv) insurer's earning capacity assessment;

(v) insurer assessment PAWE;

(vi) tax returns 2014 to 2023;

(vii) references (A47 to A49);

(viii) clicks IT records (A50 to A52).

1. The claimant was questioned by her counsel Ms Gumbert for a short period relying on the statement in evidence. She was then cross examined by Ms Allen (insurer's counsel) for the duration of the morning on the first day of the assessment conference. This questioning covered her prior medical/psychological history and her application for a position with the Australian Taxation Office (ATO) and when it took place.
2. At first instance, the claimant was adamant that she had applied for the position with the assistance of recruitment firm Click IT and was accepted for the role before the accident. Due to the impact of her injuries she was unable to commence the role. This was the history she relied upon for all medical assessments undertaken.
3. After the adjournment of the assessment conference a second day was allocated to hear the remaining evidence which took place on 30 September 2025. This was to enable the parties to investigate when the position was applied for and when the interview took place. The information received confirmed that the application and interview with ATO representatives took place post-accident.
4. The claimant on day two of the assessment conceded she was in error on when the interview took place but that it was not a deliberate lie.
5. The claimant's friend Neil Stollznow was called to enable the insurer to question him in relation to the four statements he had provided in support of the claimant.
6. Upon finalisation of his evidence, parties in provided final oral submissions having regard to the evidence provided at the assessment conference.
7. The issues in dispute at the conclusion of the conference was quantum of damages the claimant should receive for non-economic loss, past economic loss and future economic loss.
8. The parties were directed to make submissions on costs and the insurer to provide details of statutory payment and tax paid.

1. The subject accident took place on 25 March 2018. The claimant was travelling along Old South Head Road at Vaucluse where a taxi ahead of her by 50m pulled to the side to collect a passenger. Another vehicle stopped behind the taxi.
2. The claimant attempted to overtake both vehicles and whilst doing so, the taxi without indication performed a U-turn. The claimant's vehicle collided with the taxi (insured/s vehicle).
3. The claimant advised an ambulance was called to attend the scene, however there were no records verifying an attendance. The claimant did not attend a hospital.
4. NSW Police attended the scene and classified the incident as a "minor" collisions, no injuries were recorded in their notes.
5. The insurer's investigations revealed that the claimant called upon the services of National Home Doctor Service noting an attendance on 25 March 2018 and the following entry in their records:

claimant sustained injuries in the subject accident.

1. The claimant underwent further investigations on 26 March 2018 which included an X-ray of her hand, wrist and forearm which revealed no sign of injury. A CT scan was also undertaken of her brain also unremarkable.
2. Due to the nature of the collision and the injuries claimed the insurer obtained a biomechanical engineers report of Dr McIntosh. He opined on 29 October 2021 that the magnitude of the forces experienced by the claimant would have been moderate and controlled by her seatbelt and airbags. In regard to whether the injuries sustained were consistent with the forces involved in the subject accident, accepting that the presentation of neck and right shoulder pain the day and evening after the accident and right hand and thumb pain were attributable to the forces of the subject accident.
3. He considered by early April 2018 the resolution of the claimant's symptoms was present until an incident where she fell down three stairs landing on her left side. He considered any ongoing physical issues thereafter were unrelated to the subject accident.

1. There has been considerable dispute between the parties as the psychological injuries sustained by the claimant as a consequence of the subject accident. The insurer went to great lengths to review the claimant's pre-accident mental health and the impact of this on the pre accident employment history of the claimant.
2. Both parties have retained medico-legal reports in relation to the injuries sustained and the impact of this on the claimant. I do not propose to summarise the particular views of each report. The matters ultimately concluded upon the determination of the Commissions review panel consisting of Member Williams, Drs Canaris and Roberts on 3 December 2024.
3. The importance of this decision is that the independent review and assessment made had the benefit of the differing opinions of the claimant's and insurer's experts and whilst the insurer further submitted the review panel did not know the history provided by the claimant of having the ATO job before the accident was incorrect.
4. In relation to the determination of the quantum of damages, this issue was a major focus of the insurer's submissions and questioning of the claimant at the assessment conference.

The incorrect history given as to when the ATO role took place.

1. What is the relevance of this particular dispute? The insurer submitted it was a deliberate decision of the claimant to exaggerate the impact of the accident. The claimant strenuously denies this. The claimant further submitted in submissions that whilst the claimant was initially adamant it took place before, she was wrong and when confronted with the records accepted that it took place after.
2. The insurer submitted that the medical review panel thus held the belief that the impact of the injuries including psychological injuries were in fact more severe and immediate and the claimant's ability to undertake the interview with ATO was inconsistent with the history upon which the Medical Assessors were given and relied upon. The insurer held to view that the ongoing psychological issues related to the other stressors in the claimant's life such an ongoing problem with a tenant in her building, more than the subject accident and that damages should reflect the input of these other factors.
3. The claimant's submission in reply was that even if the claimant was in error in her belief that the interview took place before the accident, the position was only a short term role to conclude in July 2018 and the claimant's inability to function at the time of the interview and the inability to complete the documentary process to satisfy the necessary requirement of the role, was due to the ongoing physical injuries as well as the psychological injuries.
4. Relying on the evidence of Neil Stollznow, a friend of the claimant who was present when the claimant was attempting to collate the required information to support the job application. Ms Allen questioned the witness at the assessment as follows:

"And I want to suggest to you it wasn't immediately after the accident, it was a matter of months"

"It was a stage by stage deterioration but, yes, I stand by my statement that her mental health post-accident was almost immediate, was affected in the following days and weeks, The nature of it changed but she was a nightmare".

1. When further questions about the evidence he was giving, Ms Allen asked:

"Are you prepared to tailor your evidence to suit Rose's case?

"Certainly not, I'd just like to add, my profession is a market researcher and one of the things that market researchers always have as a basis is a very clear and unambiguous commitment to the facts similar to our learned friends. So my evidence is the best of my recollections, It is not tailored to give positive or negative outcome and I have been as forthcoming as I possibly can be with the ability within the ability to recall events as they took place eight years ago".

1. This response was very persuasive. Mr Stollznow gave his evidence that the claimant was so impacted at the time that she took hours to complete the security check documents required, could not find her tax file number and was so distressed that it took from 7.00pm to 4am to assist the claimant prepare the required response.
2. Clearly the evidence of Ms Stollznow supports the claimant's position that she was suffering from injuries physical and psychological during the period the application for the ATO role was made.
3. Factually, the claimant was not able to take the role as she failed to provide a copy of her birth certificate and the position went to someone else.
4. Whilst the insurer submitted that the claimant's health was good enough to attend and interview and secure the offer of the position, the insurer relying on the securing of the offer to suggest in April 2018 her injuries were not as bad as the claimant would have me believe, is inconsistent with the evidence of the claimant and that of Mr Stollznow.
5. I accept that the Medical review panel relied on the claimant's information that the ATO interview was before the accident and this was incorrect, the impact of when the interview took place for a short term role is limited. Clearly the claimant's ongoing psychological deterioration was before the commission's review panel and they with the benefit of the various opinions and having before them the other stressors, which the insurer sought to rely on and still came to the conclusion the claimant's injuries were accident related and this ultimately enlivened the claimant's entitlement to non-economic loss.
6. The claimant in final submissions suggested the whole issue of when the ATO interview took place as really a "de minimus issue". Ms Gumbert responded:

"It doesn't make a material difference to the review panel's findings because they were already aware of all the important information about her functioning before the accident and after the accident and the other contributing causes of her condition and I would emphasise again that despite her pe-accident psychological history and the problems she was having with the neighbour and whatever other problems she may have had she was... working right up until , in fact six weeks before the accident.... She was despite her vulnerabilities, was a high functioning woman leading a happy life".

1. The review panel's determination revoked an earlier certificate of Medical Assessor Mason dated 4 April 2023 and certified that:

" The degree of permanent impairment of the claimant that has resulted from an aggravation of an unspecified mood disorder and substance use disorder caused by the motor accident on 25 March 2018 is 16%."

1. This review was a new assessment of all the matter which the medical assessment was concerned and related to psychological injuries.
2. The review panel considered the pre and post-accident records from the treatment providers included references to the following :

"54. The Panel has considered the pre and post records..include reference to the following matters

(b) 21 Apil 2011 - Lexapro withdrawal

(c) 30 November 2011 ..40mg warned high dose

(d) 11 January 2012 -mood swings worse, anxiety increasing, rowing with friend..Poor sleep. Weepy, poor concentrations..

(e) 8 May 2012 -use of boyfriends Clozapine

(f) 19 June 2013- referred to Lesley Bainbridge psychologist. Difficulty sleeping...feels anxious and lonely

(g) 17 September 2013- referred to Dr Miller psychiatrist, taking Clozapine two years without anyone's knowledge.. on Lexapro for about seven years

(h) 11 November 2013 - having more anxiety.

(i) 21 November 2013 - low mood on Cymbalta

(j) 9 December 2013 -..working form home 3 days still seeing clients, feels anxious. use of ice and prior .last marijuana Oct 31

(k) 11 December 2103 too sedated o 60mg Cymbalta

(l) 27 March 2014 - low affect, quit job.. too stressed by it..thought of self-harm depression with melancholic features

(m) 20 January 2015 - altercation with boyfriend altercation with boyfriend. Police involvement. Mental health team..Catastrophising, and

(n) 21 January 2015..suicidal ideation"

1. The panel also reviewed the numerous medical reports contained within the clinical records of Dr Smith. Macleay Street Medical Practice, notes of Dr Deepinder Miller, Fountain Medical Practice Potts Point and National Home Doctor Service. These records were extensive and provided details of the following:

(a) attendance on 25 March 2018 by 13Sick National Home Doctor (day of subject accident);

(b) clinical notes on 6 June 2018 of Dr Robertson - claimant telephoned and rebooked several times following the accident...On 8 June, she had a home visit from Dr Roberston who refers to the accident which reportedly shook her confidence. She was noted to have physiotherapy but otherwise no treatment. Not on any medication but was smoking six cones. THC daily;

(c) home visit 22 June 2018. claimant emotionally labile. tearful and apologising and fragmented;

(d) 9 July 2018, surgery received a call from a friend, claimant in a "manic state";

(e) 20 August 2018 practice rang "crying hysterically having taken an overdose of Panadol and Xanax and was attended by ambulance with police assessment;

(f) 2 June 2019 St Vincents acute care team attendances and diagnosis of depression and cluster B vulnerabilities;

(g) 19 January 2020 -anxiety disorder and post-traumatic stress noted in a fitness to drive assessment;

(h) 3 March 2020 referral to Daud Saeed psychiatrist;

(i) 24 March 2020 notes of Dr Saed documents use of ice, trauma history, betrayal in an emotional intimate relationship 2014-2016;

(j) discharge summary St Vincents hospital admission 30 March 2020 to 2 April 2020 use of crystal meth, cannabis and Xanax. Withdrawal of CMA use;

(k) 24 April 2020 records ceased use of olanzapine but regular cannabis and weekly CMA;

(l) St Vincents Emergency 17 April 2023 concerned family, claimant may have overdosed, did not stay for assessment;

(m) police PACER request dated 30 April 2023;

(n) Myhealth Potts Point records. Accident in which she is said to have "suffered head injury" 27 June 2023 letters of Dr Johnson requesting access to financial assistance from superannuation, listing diagnoses of chronic anxiety/depression, agoraphobia and post-traumatic stress disorder. The claimant is said to have shown no improvement in her mental health over the time that Dr Johnson has known her with exacerbation of her mental health difficulties from social stressors. She is unable to work, facing financial hardship. And had been recently diagnosed with hyperthyroidism which was said to have exacerbated her mental health difficulties;

(o) 31 July 2021 MRI brain normal;

(p) various instances of substance use, social isolation and amplification of symptoms;

(q) records of Ms Tull identifying claimant too emotionally unstable to sustain work as at

3 November 2019, and 21 March 2021 post-traumatic stress disorder, mixed anxiety, depression and substance abuse in the form of self-medication and presented as a consequence of the accident but with exacerbation from life events such as poor relationship with main supporter conflicts with property developers, feelings of loss of identity since the accident sending her into a severe depression, and

(r) report of Ms Tull 7 November 2022 disagreeing that the claimant was exaggerating her condition and malingering, the claimant's condition was attributable to pre-existing mental illness.

1. The panel also had the local court and police files to review. There was incident dated

22 June 2014, 22 June 2014 and 19 January 2015, 25 May 2015 and 18 September 2015. 27 September 2016, 7 February 2017, 2 April 2017, 11 May 2017, 6 June 2017,

13 June 2017 and 24 December 2017. 2. Post accident neighbour issues March 2018, 10 May 2018, January 2019, 6 February 2019, March and April 2019, August 2020 and April 2021. 27 November 2021 positive breath test -detection to methamphetamines subsequent arrest. 10 August 2022 neighbour dispute resulting in a charge, court appearance on 30 April 2023 for breach of AVO and further incidents over 8 separate occasions in 2023 and April and May 2024. 3. The panel considered the statement of Mr Finnis as to the description of the claimant given that she was "in a bit of a state" and appeared very shocked immediately post-accident. 4. The panel reviewed the claimant's statements dated 31 January 2023, her statutory declaration dated 22 February 2019, Mr Stollznow's statements dated 3 December 2019,

20 January 2023, his statutory declaration made 17 February 2019. 5. The panel appears to have had the benefit of the pre-accident work and psychological history and the post-accident stressors with the neighbour which were included in the history provided, the police and hospital records and the further statements of the claimant and Mr Stollznow. 6. There was extensive material before the panel including the claimant's and insurer's submissions similar to that provided to support the damages assessment before me. The submissions of the insurer submitted the records demonstrate a significant extent of pre-existing psychological compromise together with non-accident related ongoing stressors. The claimant's that the evidence establishes her ability to function significantly deteriorated following the accident. Arguing the evidence does not support a finding that her condition would have progressed to its present state if the accident had not occurred. 7. The claimant was re-examined by the panel on 29 October 2024. 8. The current symptoms were recorded:

"161. symptoms comprise anxiety, depression, despondency, panic attacks, agoraphobia, insomnia, feelings of abandonment and isolation and social withdrawal. It was also noted that there were multiple occasions on which she was described as "manic", agitated, angry and aggressive. The substance use history was noted, as was her claim that she was now abstinent from alcohol and drugs".

1. The current treatment proposed was continuation of fortnightly session with Ms Tull and ongoing use of Cymbalta daily.
2. As to diagnosis, the review panel found the claimant's presentation "challenging". A diagnosis of post-traumatic stress disorder was considered but they were not satisfied the accident was a Criterion A event. The claimant was highly distressed since the accident. The significant substance use disorder both before and after the accident were recorded in medical records and their noted "mild level of intoxication" in her presentation at the interview were factored into their considerations.
3. The panel was satisfied the claimant had a substance use disorder prior to the accident which was not in remission despite the claimant's claims to the contrary. Noting the claimant had held down for "much of the time prior to the accident" they were satisfied that the substance abuse was made worse by the accident.
4. The Medical Assessor was satisfied in the context that whilst there was evidence of prior psychiatric symptoms and dysfunction, her level of functioning in the period following the accident was "distinctly worse" (IB 116).
5. Ultimately, after considering a number of diagnoses, the review panel concluded the " claimant met the diagnostic criteria for an unspecified mood disorder that was present before the accident and had been "aggravated by the accident". They did not consider the claimant had agoraphobia, rather that her symptoms were "better explained as a manifestation of her mood disorder and comorbid substance use" (IB118).

1. Whilst the insurer sought to impress the relevance of the interaction with the neighbour and the conflict, the review panel noted ". This had been long standing. They also noted that the claimant had relocated away from the former neighbour 18 months ago, indicating that any contribution from those difficulties had dissipated. The Medical Assessors were satisfied that the claimant's psychological problems were a cause rather than a consequence of the conflict with her neighbour...".
2. When it came to consideration of the Dr Baron-Levi's opinion (qualified by the insurer) to the effect that the claimant had exaggerated her symptoms and she was entirely fit to resume work, his opinion was not consistent with the panel's assessment of the totality of the evidence, including the claimant's overall presentation.
3. The claimant confirmed that there was prominence of pain as a consequence of any physical injuries in her earlier presentations, when re-examined by the panel this" had completely resolved".
4. When consideration of impairment was undertaken the review panel provided the following details:

(a) self-Care and Hygiene: Class 3 moderate impairment

(b) social and recreational activities: Class 3 moderate impairment

(c) travel: Class 2 ability to undertake very brief local journeys by herself.

(d) social functioning: Class 3 The severity of her symptoms and her presentation at interview would potentially undermine establishment of new relationships. Impairment was considered moderate.

(e) concentration pace and persistence Class 3: Her presentation at the re-examination was "discursive and disinhibited. she has a moderate impairment."

(f) adaptation class 4: "She has not been working saying her head was in a mess", The Medical Assessors determined the claimant was not employable on the open labour market in her current state as a result of her unspecified mood disorder and comorbid substance use disorder. The Medical Assessors particularly noted the disorganised and disinhibited presentation at the re-examination with lability of mood which would make open labour market employment impossible, she would similarly be too disorganised for self-employment. The claimant continued to care for her dogs, reflecting some residual adaptation. The Medical Assessors determined that she had a severe impairment."

(g) the base assessment of whole person impairment (WPI) was 22%. The exercise of assessing the pre-existing disorders and their impact on function resulted in a WPI of 6%. The panel was satisfied the claimant suffered substance disorder and unspecified mood disorder before the subject accident. After the adjustment WPI directly attributable to the subject accident was WPI of 16%.

(h) the panel also relied upon the evidence of the claimant's father and Mr Stollznow to support a deterioration in her post-accident functioning.

" 211. The panel is satisfied that the timing, nature and worsening in symptoms of the unspecified mood disorder and substance abuse disorder support a finding that the accident caused a material and permanent aggravation of the pre-existing conditions.

212. The panel finds that the accident was a necessary condition of the aggravation of the unspecified mood disorder and substance use disorder, and that, but for the accident the aggravation of these conditions would not have occurred."

(i) whilst the insurer argued that the circumstances of the accident was minor and features to a limited extent in the clinical records, the clinical judgment of the Medical Assessors Canaris and Roberts both of whom are psychiatrists and qualified to assess psychiatric impairment rating scales cl 6.217 guidelines and considered the impairment was evident at the time of their assessment. The panel adopted their clinical findings, and

(ii) the panel addressed the concerns of the insurer as follows:

"217. In addition to arguing that there was significant pre-existing psychological compromise, the insurer submits that there are non-accident related ongoing stressors. The insurer argues that the claimant's current presentation is a manifestation of these unrelated issues"

218. The insurer submits that the available post-accident medical evidence identifies significant non-accident related stressors which are primary, if not sole, cause of the claimant's current complaints.

219. The panel found that the pre-existing unspecified mood disorder and substance use disorder were aggravated as a result of the accident, and that the claimant has a permanent impairment caused by the accident."

220. The Panel agrees with and adopts the reasons given by the medical members of the panel for the conclusion that there was no subsequent impairment.

221. The panel is not satisfied there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment."

1. Having reviewed the medical reports, the histories provided and the evidence relied on by the claimant and the insurer in this matter, I find no basis to depart from the panel's determination on causation of injury by virtue of the incorrect history provided by the claimant as to when she attended upon ATO for an interview. It is clear from the additional information provided by Mr Stollznow at the assessment conference that the claimant post ATO interview was already suffering symptoms of disorientation and disorganisation and had significant difficulty completing the documentation required to obtain the ATO role.
2. As at the time of assessment the claimant's evidence did not change to any great degree to that provided to the review panel and I am satisfied that the impact of the injuries sustained in the subject accident is that described to the review panel and that their findings in relation to the impact of the neighbour dispute is not a separate issue but one compounded by the condition created by the aggravation of the pre-existing conditions by the subject accident.
3. I note the insurer sought to rely on the opinion of Dr Baron-Levi who in his latest report opined that the claimant should be diagnosed with Borderline Personality Disorder he opined:

"In my opinion there was evidence that Ms Abraham satisfied the DSM5 criteria for a

diagnosis of Borderline Personality Disorder (BPD). I suggest that her pre and post

accident criminal behaviour as well as the interpersonal and performance difficulties she

experienced at work prior to the subject accident were directly a result of her BPD. J am

of the view that Ms Abraham's erratic behaviours, substance abuse, her low self esteem

and depression were all comorbid with her BPD. I suggest that the Medical Assessors

Drs Williams, Canaris and Roberts who were of the view that Ms Abraham was suffering

from an unspecified mood disorder and substance abuse did not canvas widely enough to

consider that Ms Abraham was suffering from a personality disorder."

1. Ms Gumbert for the claimant, address this opinion in her oral submissions confirming that the research Dr Levi cited a 2023 study when read included a causative factor of "personal injury", which had been conveniently omitted in the opinion of Dr Baron-Levi.

1. The claimant physical injuries to her cervical spine and right shoulder at the time of the assessment have resolved.
2. The claimant's ongoing psychological injuries continue. The claimant has sustained the following psychological injuries:

"an aggravation of an unspecified mood disorder and substance use disorder caused by the motor accident".

1. The claimant continues to suffer the following disabilities:

(a) unspecified mood disorder;

(b) substance use disorder;

(c) high levels of anxiety;

(d) emotional instability;

(e) problems with anger management;

(f) irritability;

(g) social withdrawal;

(h) depression as evidenced by excessive sleep;

(i) regular thought about suicide;

(j) sudden mood swings;

(k) inability to understand other people's thoughts and motivations;

(l) Inability to focus and complete a single task;

(m) stress and anxiety over minor issues that are part of everyday life;

(n) insomnia;

(o) regular preoccupation with the accident;

(p) loss of enjoyment of life;

(q) reduced cognitive ability including problem solving;

(r) significant impairment in concentration;

(s) avoidance of driving, and

(t) mistrust of people.

1. Noting that determination of the review panel dated 3 December 2024, the claimant is entitled to non-economic loss.
2. The claimant in final oral submissions made a submission that the "the claimant's life has been destroyed. She has sustained a surprisingly severe - reaction that the review panel finds is a genuine reaction. She has gone from having a great life to now being ..a shell of her former self".
3. Whilst the physical symptoms have now healed she is left with significant psychological injuries.
4. Having regard to her age and the recent indexation the claimant submitted the sum of $400,000 may even be too conservative for a reaction and for a devastation of one's life that is severe".
5. The insurer relying on the claimant's previous history of psychological symptoms, her incorrect history given to Medical Assessors as to when she attended the ATO interview and downplaying of the trouble with the downstairs tenant was a deliberate move to exaggerate the impact of the accident against other factors present in her life submitted that she had "deliberately withheld information".
6. The assessment of non-economic loss "ought to be low. It is not a serious accident and that isn't that the doctors have come to a diagnosis of post- traumatic stress disorder, it's depression". The insurer's written submissions allowed the sum of $250,000.

1. The claimant had a pre-existing history of psychological illness from time to time and I accept that she was able to function at a high level, when I have regard to the employment history provided by the claimant.
2. The claimant has been assessed by the review panel who came to the determination that the claimant's ongoing psychological condition was an exacerbation of her earlier conditions and did not find that the other stressors in the claimant's life were a separate trigger and contrary to the insurer's position.
3. The claimant continues to undertaken fortnightly treatment for her condition and the aggravation is unlikely to alter in the foreseeable future. The impact has been profound.
4. The claimant's ability to undertake activities of daily living are significantly impaired as determined by the PIC panel medical assessors as it related to social activities, personal hygiene and adaptation.
5. Since the accident the claimant has required extensive support from Mr Stollznow her friend, which initially included and was not limited to:

(a) visits in the morning and after work;

(b) purchasing groceries;

(c) noting appointments;

(d) taking her to appointments;

(e) reminding her about things and events;

(f) accompanying her when she left her house;

(g) picking up parcels from the post office;

(h) getting her prescription medication for her, and

(i) providing emotional support and encouragement.

1. The claimant is now located in the Central Coast and is unable to rely on the same level of assistance from Mr Stollznow, however he reports checking in on her or making telephone contact as often as he is available. I note he brought her to the assessment conference on both days.
2. Prior to the accident, the claimant had high standards of personal care and looked after herself well. For example, she would not be seen without her nails done. Since the accident, the claimant goes for long periods with poor personal hygiene, including not changing clothes and sleeping in her clothes without changing. She often does not shower for over a week. The claimant no longer cooks and her house is messy. Her sleeping is erratic with messages sent in the middle of the night and sleeping in till the afternoon or staying awake for 24 hours.
3. Prior to the accident the claimant socialised well, often visited relatives interstate, and had an active social life and friends. Her friend/carer Neil Stollznow is now the only person the claimant regularly sees face to face because he visits to check on her. The claimant remains in intermittent phone contact with her father. Mr Stollznow stated the claimant is isolated and has a complete lack of social network. He was present before the accident for a number of months and was able to recall her interactions with friends and her pre-injury social life.
4. Mr Stollznow, the claimant's close friend, in his statement dated 16 July 2025 reported:

"She was stylish and fun and could have interesting and interactive conversations with myself and others. She struck me as a very intelligent and capable woman. She had her two dogs whom she loved but was happy to be separated from to have a social life."

1. I have regard to the claimant's ongoing symptoms and their impact. The physical injuries have resolved at the time of my assessment. The ongoing psychological injuries are significant and continue to impact on the claimant's quality of life and will do so for the foreseeable future.
2. Noting the claimant's age and the extent of the continued impact for the remainder of her life I assess non-economic loss in the sum of $350,000.

Impact of injuries on claimant's earning capacity

1. In dispute between the parties is whether and / or to what extent the claimant has in the past or will in the future, be able to exercise any earning capacity on the open labour market reasonably available to her having regard to her age, the extent and severity of her injuries, her experience and training and qualifications.
2. Prior to the accident the claimant was employed in high functioning roles in IT and was paid well. The claimant would often walk her dogs and enjoyed socialising with friends. Since the accident, the claimant has been totally impaired in employment and unable to return to any work in any capacity. The claimant's ability and drive to care for her dogs has also diminished.
3. Prior to the subject accident, the claimant had worked in a highly qualified senior role as an IT consultant. She holds an honours degree in IT.
4. At the time of the accident, the claimant had been offered an IT Test Analyst role with the ATO, commencing at around $150,000 per year plus super.
5. The Insurer assessed the claimant's pre-accident-weekly-earnings at $2,457.57 gross, which translates to $1,850 net per week (rounded). The claimant's payslips from prior to the accident confirm this. The claimant's tax records from prior to the accident align with the fact her earnings were increasing over time, although there is reduced taxable income in 2018 due to investment property deductions. That reduction does not reflect the claimant's earnings from personal exertion and should not be considered in determining pre-accident earnings.
6. The claimant had around 15 years of high level experience as an IT professional in both public and private contracts. Her experience included roles as senior digital quality assurance / business analyst, business assurance analyst, lead test analyst, and quality assurance analyst.
7. Following the accident on 28 March 2018, the claimant was unable to return to work as a result of her injuries. The claimant has been unable to return to any work since the motor vehicle accident.
8. It has now been 381 weeks since the accident. The claimant claims past economic loss at $1,850 net per week, adjusted for CPI for the period of the accident to date as calculated below.

25 March 2018 - 30 June 2018: $1,850 x 14 weeks = $25,900

1. July 2018 - 30 June 2019: $1,889 x 52 weeks = $98,228

1 July 2019 - 30 June 2020: $1,921 x 52 weeks = $99,892

1 July 2020 - 30 June 2021: $1,902 x 52 weeks = $98,904

1 July 2021 - 30 June 2022: $1,980 x 52 weeks = $102,960

1 July 2022 - 30 June 2023: $2,085 x 52 weeks = $108,420

1 July 2023 - 30 June 2024: $2,223 x 52 weeks = $115,596

1 July 2024 - 30 June 2025: $2,307 x 52 weeks = $119,964

1. July 2025 - 6 November 2025: $2,328 x 18 weeks = $41,904
2. The total of weekly loss amounted to a claim for past economic loss $811,768. In addition superannuation was claimed at the net loss of 12% amounting to $97,412.16.
3. A claim was made for the tax paid on weekly payments in accordance with Fox v Wood. The amount known to the insurer. (The insurer has subsequently confirmed that no tax was paid).

1. The insurer submitted that past losses should have regard to the evidence before me.
2. The assessment should have regard to the "other matters that were already there before the accident. The claimant had psychological issues and had not had a permanent job for many years." She had contract jobs and there were gaps in her employment, which would be expected in contract jobs.
3. Also noting the pre-existing psychological conditions, it would be a constant issue likely to impact on her regular employment.
4. She has a desire to look after her dogs and not leave them alone at home. This impacts on her ability to work full-time outside the home. "It suits her to work from home with those dogs and we say that....regardless of the accident the claimant was going to be in a position where she was not going to sustain employment in any event"
5. In oral submissions the insurer stated "past and future economic loss, ..ought to be assessed by way of a buffer " and relied upon its earlier written submissions.
6. The insurer reviewed the claimant's work history and sought details of former employers' personnel files to ascertain the reasons the claimant ceased work.
7. The insurer researched the claimant's full-time positions as well as the roles between 2007 and 2025:

(a) with Test Pro as a technical consultant which included a final formal warning on 21 May 2012, and

(b) with Ticketek where termination took place on 15 August 2016.

1. The insurer reviewed the claimant's criminal history and court records were relied upon to ascertain the impact of previous psychological conditions and behaviour of the claimant in light of such activities and any impact upon the claimant's employability.
2. At best an appropriate allowance for past economic loss should be a buffer of $50,000.
3. The insurer confirmed that statutory payments made for which it sought credit amounted to $204,246.88 and the claimant's losses pursuant to s 4.5(1)(d) for tax paid is on statutory payments was $nil.

1. The claimant at the time of the accident had recently finished a contract position and was actively looking for alternate positions. On 28 March 2018 she was communicating with Freda Kwok of Click IT Recruitment to assist in an application for a position with ATO as a test analyst role at the rate of $75.00 hourly ($650 daily plus superannuation) due to run to end of June.
2. An interview with ATO representatives took place and on 10 April 2018 the claimant provided Click IT with required forms completed with the exception of her birth certificate.
3. The claimant was notified that she lost the ATO position on 1 May 2018 after email communication informed Click IT that ATO decided not to commence the work order "as it was a short-term requirement and due to delays in PEIC, it was no longer viable for the business area to go ahead with the contract".
4. Whilst the insurer submitted the claimant had a chequered work history with problems resulting in period of unemployment, I am satisfied that the claimant was successfully undertaking contract positions up until the period shortly before the accident.
5. The review of the claimant's pre-accident work history to 2007 was of little relevance to the fact that she was earning regular income in the years before the accident as evidence in her tax returns.
6. The claimant has been unable to return to employment since the motor vehicle accident as a consequence of the injuries that were sustained in the accident. I am satisfied that the losses calculated by the claimant are mathematically accurate.
7. I also have regard to the circumstances in which the claimant was working in contract positions at the time of this motor vehicle accident. The claimant had been looking for a position and was not employed at the date of the accident. She was making applications and as factually based, had intended to seek further contracts. She applied and was selected for an ATO role three days after the accident.
8. The impact of her injuries over a period of weeks prevented the claimant from properly completing the required documentation to obtain the role she had subsequently applied for and notionally was accepted subject to security information.
9. The claimant has due to her injuries been unable to work since the accident and there is considerable medical support for her lack of earning capacity. Dr Anderson and the Commission review panel support the total incapacity.
10. Her treating practitioners and the Commission's medical review panel (Drs Canaris and Roberts) held the view that the claimant is unable to work due to her psychological injuries.
11. The claimant relied upon the insurer's pre-accident average of weekly earnings calculated for statutory benefits as $2,457.57 gross and leaving a net weekly earning capacity of $1,850.
12. It is this sum that the claimant bases her ongoing loss increased by CPI yearly for the period 2018 to 2025 as noted in paragraph 6.5 of the claimant's submissions (CB10).
13. I accept the claimant's medical evidence supports her loss of earning capacity and she is entitled to the losses claimed.

25 March 2018 - 30 June 2018: $1,850 x 14 weeks = $25,900

1. July 2018 - 30 June 2019: $1,889 x 52 weeks = $98,228

1 July 2019 - 30 June 2020: $1,921 x 52 weeks = $99,892

1 July 2020 - 30 June 2021: $1,902 x 52 weeks = $98,904

1 July 2021 - 30 June 2022: $1,980 x 52 weeks = $102,960

1 July 2022 - 30 June 2023: $2,085 x 52 weeks = $108,420

1 July 2023 - 30 June 2024: $2,223 x 52 weeks = $115,596

1 July 2024 - 30 June 2025: $2,307 x 52 weeks = $119,964

1. July 2025 - 6 November 2025: $2,328 x 18 weeks = $41,904
2. I allow past superannuation in the sum of $97,412.16.
3. I assess past economic loss in the total sum of $909,180.16

1. The claimant's submission is that she is currently 50 years of age and was qualified in and intended to continue working as an IT professional until the age of 70. However, the claim is only made to age 67 years.
2. Relying upon the Commission's review panel 's assessment of adaptation "the claimant was not employable on the open labour market in her current state" as a result of her psychological injuries. Particularly noting her disorganised and disinhibited presentation at the re-examination with lability of mood which in their opinion "would make open labour market employment impossible". Even self-employment would be unavailable to her as she was too disorganised.
3. The accident need not be the sole cause of the claimant's current impairment of earning capacity, it need only be a material cause (which the review panel has determined it to be). In those circumstances, it does not matter that there may be some contribution to the claimant's current impairment from pre-existing or comorbid causes, the insurer is liable for the complete loss of earning capacity unless it proves that the claimant may have suffered from some impairment of earning capacity irrespective of the accident which should therefore be offset against her current loss.
4. However, importantly (and as her financial records demonstrate), despite any impairment the claimant might have had prior to the accident, she was working and consistently earning a high income.
5. To the extent that there is a possibility that the claimant's prior psychological condition may have one day deteriorated and rendered her less fit for work, irrespective of the accident, it is accounted for in the ordinary discount for vicissitudes of 15% (ref Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208.
6. A Vocational Capacity Assessment Report was provided by Craig Martin dated

14 June 2022. Mr Martin noted that on the basis of the claimant's injuries, level of education, training, and experience, no suitable employment occupations are open to the claimant. It was opined that the claimant was unemployable on the open labour market on account of her physical and psychological injuries. But for the accident, it was opined that the claimant had capacity for the following roles:

(a) ICT Business Analyst $2,845 gross/pw (as at May 2022), and

(b) Analyst Programmer $2,442 gross/pw (as at May 2022).

1. The claimant's actual pre-accident earnings, adjusted for CPI (as set out above) are

1. Relying on the opinion of Dr Anderson and the Commission's review panel, there is no prospect of the claimant returning to future employment.
2. If there could be said to be any "theoretical" earning capacity, then in light of the evidence of the review panel, the insurer can not reasonably discharge its onus of proving that there is a practical likelihood of the claimant obtaining any work.
3. Despite the likelihood the claimant would have continued to increase her income following the subject accident, the claimant claims future economic loss until retirement age at $2,328 net per week:

$2,328 x 603 less 15% for vicissitudes = $1,193,216

1. The claimant contends she would have been entitled to employer superannuation contributions:

1. The total amount claimed for future economic loss $1,368,022.

1. The insurer considers the claimant has a residual earning capacity and has in fact attempted to operate her own business since the accident where she has an on-line site selling talismans.
2. The insurer submitted that the claimant's accident related injuries will have no impact on her future earning capacity and there should be no entitlement to future economic loss.

1. The claimant was questioned during the assessment conference on her capacity to undertake her business activities selling talisman and other items on an on-line platform. Whilst the enterprise has not ceased, I accept the evidence of the claimant that she had undertaken this exercise at the suggestion of her psychologist and had been unsuccessful in continuing the venture as she was not capable of checking emails to respond to customer enquiries.
2. Mr Stollznow was also questioned about this venture by Ms Allen (for the insurer) and he confirmed in the claimant's difficulties performing tasks she clearly was capable of undertaking in an IT role before the accident, but now could not. He confirmed he had on occasions reviewed emails for her as she had failed to respond to potential customers and this resulted in no sale being effected.
3. The insurer relied upon the claimants pre-existing psychological conditions and the pre-accident conflicts at her places of work to submit that her difficulties in obtaining future employment was related to her long-term pre-existing psychological conditions and substance use and at best at the impact of any ongoing psychological issues directly related to the subject accident were minimal at best.
4. Having reviewed the medical evidence before me and the plethora of information relating to the claimant's mental health before and after the subject accident, I am satisfied the claimant has sustained significant impairment to her future earning capacity against a background of pre-existing conditions which possibly could have one day deteriorated but for the accident and rendered her less fit for work.
5. Whilst the claimant submitted the usual deduction of vicissitudes of 15% should be applied, the insurer submitted in oral submissions at the assessment that a much higher figure.
6. Since the subject accident the claimant's psychological health has spiralled and there have been further episodes where Police and the courts have been involved. This activity is likely to impact on the claimant's earning capacity if police checks are required for certain positions she undertakes.
7. Noting that the medical evidence supports the claimant's ongoing incapacity to work as the Commission's review panel recorded adaption class 4, the claimants retained earning capacity is negligible. The Commission's Medical Assessors Canaris and Roberts considered she was unemployable in her current psychological and disorganised state.
8. The claimant's future earning capacity losses are directly attributable to the aggravation of the pre-existing substance use and unspecified mood disorder.
9. Taking all the above into consideration I assess future economic loss as quantified by the claimant at an ongoing weekly loss until retirement age of $2,328 weekly with a greater deduction of vicissitudes of 25% having regard to the claimant's pre-existing conditions and substance use:

$2,328 x 603 less 25% = $1,403,784 - $350,946 = $1,052,838

Superannuation claims on $1,052,838 x 14.65% =$154,240.76

1. I assess future economic loss in the sum of $1,207,078.76

Damages for Accommodation or travel costs expenses

1. Section 4.5(b) of the MAI Act entitles the claimant for damages for _"_costs relating to accommodation or travel (not being the cost of treatment and care) of a kind prescribed by the regulations".
2. The Motor Accident Injuries Regulation 2017 (MAI Act Regulations) provides, at Regulation 9: "The kind of accommodation or travel for which damages may be awarded (subject to Division 4.2 of the Act) is any accommodation or travel for which the claimant has incurred, or is likely to incur, a cost as a result of the injury caused by the motor accident."

1. The claimant claims costs of increased cost of day-to-day travel.

"The claimant has been diagnosed with PTSD with Agoraphobia. Her evidence, as well as the evidence from her psychologist and her carer is that she is struggling with usual activities of daily living and requires assistance (supervision, ensuring she keeps her appointments and compliant with medication, assistance with transport). Her carer visits her almost daily. The claimant has difficulty driving and she has been relying on her carer's assistance with travels to her medical appointments."

1. The claimant claims for the increased costs of travels by taxi and uber (attending medical

an allowance of $30 per week = $30 pw x 894 = $26,820.

1. The insurer relied upon the claimant's evidence that she has recently purchased a new motor vehicle and was able to travel to the shops and no entitlement to travel .

1. Whilst initially the claimant may have required assistance of her friend Mr Stollznow, the current medical evidence does not support the claimant requires the additional assistance of travel costs.
2. The claimant is able to independently travel to her locality and has a motor vehicle for that purpose. The claimed costs of an additional $30 weekly for uber and taxi is disallowed.

1. Under s 7.36, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
2. I assess the claim as follows on the findings set out above:
   • Non-economic loss $350,000

• Past economic losses $909,180.16
• Future economic losses $1207,078.76

Total of economic losses and non-economic loss $ 2,466,258.92

1. The claimant's economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
   • Statutory benefits paid - $204,246.88.

1. Costs and disbursement assessed at regulated costs in the sum of $150,359.60 in accordance with Part 8 of the MAI Act and Regulations.
2. I rely on the attached Costs Calculator attached.

1. On the issue of liability for the claim, the insurer owed a duty of care to the claimant, admitted it breached that duty of care and the claimant sustained injury loss and damage as a result of that breach;
2. Under ss 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damage for this claim is $2,466,258.92.
3. The claimant's economic loss is reduced by $204,246.88 and the insurer is to have credit for the payments made by the insurer pursuant to s 3.40(1)(b).
4. The amount of the claimant's costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $tbc inclusive of GST.

1. In making my decision I have considered the following legislation and guidelines:
   • Personal Injury Commission Act 2020;
   • Personal Injury Commission Rules 2021;
   • MAI Act;
   • MAI Act regulations, and
   • Civil Liability Act 2002.