In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission's assessment is :

1. Issued under s 7.36 of the Motor Accident Injuries Act 2017.
2. Contributory negligence assessed at 30%.
3. Damages assessed at $535,000.
4. Damages after deduction for contributory negligence $374,500.
5. Cost reserved.

1. At about 5.50pm on Monday, 1 February 2021, the insured driver was travelling westbound along Kenyons Road, Merrylands West approaching her house at number 23. The insured driver then turned right across double white lines into her driveway.
2. At the same time, the Mohammed Alhamdani (the claimant) was driving his motorcycle eastbound on Kenyons Road. He says that he was driving behind a black vehicle which turned left into Rubina Street. The claimant noticed the insured vehicle turning and immediately shifted down gear. He swerved towards the middle of the street and then collided with the rear of the insured vehicle which caused him to be ejected from his bike.
3. These basic facts seem not to be an issue, but the insurer, although admitting liability, alleges substantial contributory negligence on the part of the claimant. The claimant alleges that as a result of the accident, he suffered injuries including soft tissue injuries to the right hand, left wrist and both shoulders and the cervical spine and lumbar spine. The more serious injuries alleged are multiple fractures to the left foot and left hand, a traumatic disc bulge or annular tear of the lumbar spine and right wrist fracture.
4. In addition to those injuries, there is residual scarring and a claimed superimposed psychological injury.
5. As a result of the injuries, the claimant alleges considerable pain, discomfort and restriction of movement impacting significantly on his capacity to enjoy and engage in pre-accident recreational activities. It is also alleged that the claimant is restricted in his ability to carry out domestic tasks, that his relationship with his wife has deteriorated. There is also a claim for past and future economic loss.
6. The insurer disputed the nature and extent of the claimed injuries and disabilities and the alleged impact on the claimant's capacity to work.
7. The claimant was assessed by Dr Drew Dixon, orthopaedic surgeon, as having suffered

non-threshold physical injuries. The claimant's psychological condition was diagnosed by Dr Michael Hong, IME, as anxiety, depression and post-traumatic stress disorder but was assessed as a threshold injury.

1. The claimant, who was 30 years of age at the date of assessment, is a married man with two children.
2. The claimant was born in Iraq and came to Australia on a boat at age 13. He has a brother in Finland and three married sisters. His parents are still in Iraq.
3. After arriving in Australia, the claimant attended high school in Sydney and completed year 11.
4. Upon leaving high school in 2014, he was an apprentice working for a friend in the aluminium industry.
5. In 2015, he began working for another friend, Robert, who owned a company in the aluminium industry. He says he worked eight hours a day and was receiving $250 cash per day.
6. In 2016, he began his own aluminium business, GT Blazing. He says he worked eight hours a day and was earning, on average, $2,500.
7. In August 2016, the claimant was involved in a motor vehicle accident. He says that due to the injuries he sustained, he was unable to work in aluminium and glass installation and remained off work for a year.

1. I have considered the documents provided in the Application and the Reply, together with documentary evidence tended by the parties at the assessment conference.

1. It is conveniently to consider the issues of contributory negligence and damages separately.

1. The parties had each engaged accident re construction experts whose reports were in evidence. The insurer engaged Mr Glenn Urquhart from Keramidas and Associates, who reported on 23 November 2021. Mr Urquhart after considering all the material available to him concluded:

"1. The available physical evidence is consistent with the insured's vehicle turning right into her driveway at 23 Kenyons Road. The claimant's motorcycle struck the rear near side corner of the insured's vehicle.

2. At impact the claimant was travelling at a speed greater than 50 kph, and more likely around 78 kph.

3. There is evidence consistent with the claimant applying emergency braking about 25 metres prior to impact. Accepting this to be the case, the claimant was likely travelling at a speed between 78 and 100 kph when the brakes were applied.

4. Had the claimant been travelling at the posted speed limit, the collision was likely avoidable".

1. The insurer also relied upon a subsequent report of Mr William Keramidas dated 29 September 2025. Mr Keramidas had available to him the reports of Mr Urquhart and Mr Grant Johnston who provided a report on behalf of the claimant.
2. In his report, Mr Keramidas concludes:

"A. The additional information provided since the generation of the GSU and GJ reports necessitated a fresh analysis.

B. The pre-accident impact and post-accident motion of both the insured's Ford and the claimant's Suzuki were able to be assessed.

C. The speed of the claimant's Suzuki at the time of commencing its pre-impact skid mark was assessed at 71 km/h. If the claimant changed gears as indicated by him, he is likely to have done so at the eastern end of the skid mark and therefore his speed would have been higher.

D. The time it would have taken for the insured to reach the point of impact after commencing her right turn into her driveway would likely have been about three to four seconds.

E. The Suzuki is likely to have been at least 56 to 76 metres west of the insured's path when the insured commenced her turn.

F. Travelling at the prevailing speed limit of 50 km/h, the claimant would have in all likelihood, not have come into collision with the insured vehicle, and therefore the insured's judgement that it was safe to proceed would have been validated.

G. The primary cause of the collision was the claimant's approach speed".

1. Mr Grant Johnston provided an initial report dated 22 October 2023 and a supplementary report dated 12 October 2025. Mr Johnston had available to him the reports of Mr Urquhart and Mr Keramidas. Mr Johnston's latter report is essentially a critique of the reports of Mr Urquhart and Mr Keramidas.
2. Mr Johnston considered that the physical evidence available in this case was very limited and of poor quality.
3. The supplementary reports also considerably narrowed the areas of dispute as between the experts. The critical issue in determining the degree, of any of contributory negligence is the speed of the claimant's motorcycle. The experts agreed that there was evidence consistent with the claim of applying emergency braking at about 25 metres prior to impact. The essential difference is that Mr Keramidas assessed the likely speed at the commencement of braking as being between 78 and 100kph whereas Mr Johnston concluded:

"Agreed there is evidence of likely pre-impact braking, however, in my opinion, the likely speed at the start of the skid was in the 50 to 70 km/h range.

The parties, in my view appropriately, determined that it was not necessary to cross-examine the experts."

1. The claimant, the insured driver and an independent witness, Ms Elizabeth Camilleri gave oral evidence.

1. In his evidence in chief, the claimant confirmed what it said to the investigating police officer that there was a black vehicle in front of him, which turned into Rubina Street. He said that the blue car, being the insured vehicle, came from two other vehicles which were stationary to allow a white vehicle to pass. When he noticed the blue car commencing across the double white line, he shifted down in gears and his motorcycle went sideways. He said there was no room to go around behind the insured vehicle.
2. The claimant was cross-examined by Mr Hanna, counsel for the insurer.
3. In his evidence in chief, the claimant stated that he saw the insured vehicle about three seconds prior to impact. Mr Hanna correctly noted that the claimant told the police that it was six seconds. The claimant denied that he had braked and said that if he had done so, he more likely than not would have been flipped over the handlebar. The claimant maintained that the proper procedure to reduce speed was to downshift the gears. The claimant denied that at the point of impact, the insured vehicle was halfway in the driveway. The claimant did not agree that if he was travelling at 50 kph, he could have stopped and avoid the collision. He also disputed that if he had observed the insured vehicle six seconds prior to the impact he could have avoided the collision. The claimant again insisted that it was in fact three seconds. He also said that he was sure of the speed at which he was travelling as he looked at his speedo.
4. Mr Hanna suggested to the claimant that he was travelling at least 70kph, but the claimant insisted that it was only 50kph. He disputed that the insured driver had activated the blinkers on her vehicle. Finally, the claimant disputed that he had left 15 metres of skid mark on the road surface.
5. In re-examination by Mr Cleary, the claimant marked on a photograph which is Exhibit "C" the point of impact indicated by that photograph is on the double white lines. The point of impact is consistent with what the claimant told the police officer, namely that "The back of the car was on the double yellow lines in the middle of the road".

1. The insured driver also gave evidence via AVL. She said that she had read the contents of her statement to the investigator retained by the insurer and that the contents were true and correct.
2. In that statement, Ms Sakr said relevantly:

"Okay, so from the direction from Rupert towards Rubina, I was travelling 50 km. I slowed down, came to a stop, put my indicator on to turn right into my driveway, um, made sure there was no one there as I do this every day. I turned into my driveway and as I got halfway through the street..., turning into my driveway..., I always double check to make sure that I was safe as I am still turning into the driveway and I see that the motorbike coming down towards Rupert so in the direction of Rubina to Rupert, so the opposite direction. By the time I turned, I saw that he was at least 100 metres down the road, but I was already, my nose already in my driveway and it was like a split second that by the time I saw him, he had hit me like there was no chance for me to move forward. It was just by the time I saw him, it was a split second that he had hit just after where you fill up petrol on my car, so it was the back left corner of my car where he hit me and I just stopped and I just ran out knowing that I saw him on the bike. I just got out of the car to make sure that he was okay and that's, I guess, what happened."

1. In her evidence in chief, Ms Sakr said that due to her mother's car being parked very close to the driveway entrance, she did not have much room to enter the driveway. She said that at the point of impact, the rear of her vehicle was less than half a metre from the curved section, which I understood to be the curved section of the gutter abutting the driveway. She insisted that her blinkers were definitely on. She also insisted that she looked ahead and saw no one, no cars or motorbike.
2. Expanding on her statement, she said "I made my turn and looked up and the first alert was the sound. When I saw him I knew there would be a collision." The sound referred to was the sound created by the bike's exhaust system. She insisted that at this time the front of her vehicle was just inside the driveway. Ms Sakr confirmed that the driver's side rear door section struck her mother's parked car which is consistent with the photographic evidence before me.
3. When cross-examined by Mr Cleary, Ms Sakr agreed that there was a roundabout but that it was at least two streets further up. She said that the intersection of Kenyons Road and Rubina Street was two houses up from the driveway she was entering. This is consistent with the police diagram attached to the police report. Mr Cleary suggested that it was very quick between sighting the claimant's motorcycle and the impact. Ms Sakr responded, "No, I didn't see him."
4. Ms Sakr acknowledged that it was her duty to ensure that the road was clear but she disagreed that the motorbike was there to be seen.
5. She said that she could not remember cars stopped in front of her before she commenced her turn but was sure that there were no other cars behind her at that time.
6. Ms Sakr disputed that she drove her vehicle towards the driveway in a diagonal fashion.
7. In re-examination, Ms Sakr said that she had a clear line of vision as far as the roundabout.

1. Ms Elizabeth Camilleri who witnessed the accident also gave evidence via AVL.
2. She said that she saw the accident happen. "The motorcycle was flying down the road, going very fast and accelerating. I saw it and then heard it. I was shaking my head, it was dangerous."
3. Ms Camilleri said that she observed two cars trying to turn right, one into Rubina Street and another into the driveway. She noted that the motorcycle almost avoided the accident, but she could not recall if the bike slowed. She saw the insured vehicle slow down and indicate she could not recall anything else other than that the motorcycle clipped the rear corner of the insured vehicle.
4. She spoke to the driver of the insured vehicle as she thought she had been put in a horrible position and was not at fault.
5. In cross-examination, Ms Camilleri agreed that she did not ride bikes and was unfamiliar with the noise that they made. She confirmed that the driveway being entered by the insured was two driveways past the intersection of Rubina Street. She stated that there was a white car in front of the insured vehicle which was stationary with its indicators on, suggesting it was about to make a right-hand turn. She agreed that the insured vehicle did not wait for the white vehicle to complete its turn. It was maybe a car length in front of the insured vehicle. Other evidence contained in the police documents is a sketch indicating that the point of impact was in the centre of the laneway in which the claimant was travelling. It is suggestive of the insured vehicle having its nose abutting the entrance to the driveway with the exact point of impact being the rear of the insured vehicle.
6. The sketch plan is not persuasive as the police did not attend the scene and the sketch is dated 7 May 2021, some four months after the accident.

1. Mr Hanna submitted that the evidence established that immediately prior to the collision, the claimant's motorcycle was travelling at least 60kph and maybe as much as 80kph. He referred to the conflicting statements given by the claimant to the police and in his evidence where he told the police that he saw the insured vehicle turn six seconds prior to the collision but in his evidence only three seconds. He said that the speed and the claimant's reaction to the presence of the insured vehicle in front of him were major contributing factors to the accident and its sequelae.
2. He submitted that rather than going back through the gears, the claimant should have braked and swerved which may have totally avoided the collision.
3. Mr Hanna submitted that there should be a finding of at least 50% contributory negligence.

1. Mr Cleary submitted that there was clearly a vehicle stationary in front of the insured vehicle indicating that it was waiting to make a right-hand turn. That should have put the insured driver on notice that there may be a vehicle approaching the intersection with Rubina Street. The insured driver did not see the claimant's motorcycle until just before the collision. She was required to be vigilant but continued to make the turn even though when it was her obligation to ensure that there was no oncoming traffic and that it was safe to make that turn.
2. Mr Cleary accepted that the claimant's vehicle was likely to have been exceeding the speed limit. He submitted that the appropriate reduction for contributory negligence would be of the order of 20%.

1. There are conflicting accounts as to the exact facts and circumstances of the accident. The experts have expressed conflicting opinions about one important aspect on which they do agree is that the claimant prior to the collision was likely to have been exceeding the speed limit, perhaps by as much as 30 km per hour, the speed limit being 50 km per hour.
2. In my opinion, the most reliable evidence is that provided by the eye witness, Elizabeth Camilleri which is set out in detail above. Contrary to the evidence of Ms Sakr, I find that there was a stationary vehicle in front of her vehicle with its trafficators activated indicating an intention to make a right hand turn. The presence of this vehicle in those circumstances should have alerted Ms Sakr of the possibility of an approaching vehicle in the lane she was about to cross. I accept also her assessment that the claimant's vehicle was travelling very fast and accelerating. As previously noted, the excessive speed is also supported by the experts although they differ as to the likely range by which the claimant was exceeding the speed limit. I also accept that to her observation, the motorcycle almost avoided the accident which is consistent with the damage to the rear of the insured vehicle.
3. Given that the claimant was crossing double lines across the path of oncoming traffic in circumstances where I find that she should have been alerted to the real possibility of oncoming traffic, it was appropriate for the insurer to admit liability. I then turn to the question of contributory negligence. It is impossible for me to determine that the precise speed of the claimant's motorcycle when he first observed the insured vehicle turning into the driveway or at the point of impact. I am satisfied that Ms Sakr did not observe the approach of the claimant's motorcycle until immediately prior to the impact and thus failed to keep a proper look out.
4. I cannot determine, with any certainty, that if the claimant had been travelling within the allocated speed limit, the collision would not have occurred. However, I am satisfied that the excessive speed may have prevented him from avoiding the accident and quite probably rendered the injuries that he sustained as more extensive and severe than they otherwise may have been. I do not accept Mr Hanna's submission that I should find that the claimant should have braked rather than used his gears to slow his speed. I do so for two reasons: One, there is, albeit inconclusive, evidence that he may have braked and secondly, in the agony of the moment, it was not inappropriate for him to use his gears to reduce the speed of his motorcycle. Secondly, there is some evidence suggestive that the claimant did in fact apply his brakes as well as drop down in gear.
5. Having considered all the available evidence I am of the opinion that primary responsibility for the accident rests with the insured driver. However, I am also satisfied that there must be a finding of contributory negligence. I am not of the opinion that the deduction should be 50% as submitted by Mr Hanna nor do I agree with the submission of Mr Cleary that the appropriate deduction is 20%. In all the circumstances, I determine that the appropriate assessment of contributory negligence on the part of the claimant is 30%.

1. As is noted above, the claimant sustained injuries to his left hand, right wrist, left knee, left foot, neck and lower back and aggravation and injury to his right knee, which was an aggravation of a previous accident. He was taken by ambulance to Westmead Hospital where he was an inpatient for nine days.
2. He had open reduction and internal fixation of a right scaphoid fracture and examination of his left foot under anaesthesia. He was in a splint for six weeks for his right wrist, subsequently, and a moon boot for his left foot. He was under the care of a Dr Chan. The scaphoid screw was later removed. He had physiotherapy treatment as an outpatient. He consulted Dr Daniel Rahme, an orthopaedic surgeon, regarding the injuries to his foot. He had review by his GP, Dr Renweek Abdalla. He had physiotherapy treatment at Bankstown Hospital for one to two sessions but that caused significant discomfort and pain.
3. He developed post-traumatic stress disorder and counselling was arranged.
4. He continued to have pain and discomfort in his left hand and saw Dr Kadir, a hand specialist, at Liverpool, and after three consultations, he had cortisone injection to his left thumb at the IP joint as well as removal of the scaphoid screw from his right wrist in October of 2021.
5. He subsequently required analgesia and anti-inflammatories and had further physiotherapy as required. He did have injury to both shoulders, which improved with physiotherapy treatment. After 12 weeks wearing his moon boot, he could mobilise freely, but up until that point, he needed a wheelchair.

1. In his statement, the claimant alleges that as a result of the injury sustained in the accident, he suffered and continues to suffer from the following disabilities and restrictions:

(a) Pain, weakness and limitation of movement in the thumb of the left hand;

(b) Pain, weakness, and limitation of movement of the left and right hand;

(c) Pain, weakness and limitation of movement of the neck;

(d) Pain, weakness and limitation of movement of the shoulders;

(e) Pain, weakness and limitation of movement of the lumbar spine;

(f) Pain, weakness and limitation of movement of the left knee;

(g) Pain, weakness and limitation of movement of the left foot;

(h) Severe restriction of extension or flexion of the thumb of the left hand;

(i) Significant loss of use of the right hand;

(j) Significant loss of feeling in the left knee;

(k) Difficulty to write with the right hand;

(l) Difficulty to grip or hold anything in the right hand;

(m) Difficulty to stand or work for long periods;

(n) Difficulty falling asleep and waking up;

(o) Difficulty concentrating;

(p) Difficulty stretching;

(q) Difficulty holding his neck in a flex position without pain and restriction;

(r) Difficulty to bend over for extended periods of time without pain and restriction to the shoulders, neck and back;

(s) Difficulty to lift heavy objects without severe pain and restriction;

(t) Difficulty to negotiate stairs, even more sloping surfaces;

(u) Difficulty to undertake work as a barber due to long periods of standing required to do my work and the need to use my hands;

(v) Difficulty engaging in pre-accident employment duties;

(w) Difficulty engaging in pre-accident leisure activities such as swimming and training at the gym;

(x) Requirement to take medication;

(y) Requirement to undergo medical treatment and review;

(z) Resorting to smoking to help him relax and become less frustrated and aggressive;

(aa) Reduced mobility;

(bb) Memory loss;

(cc) Inability to carry his newborn baby;

(dd) Headaches due to the neck injury;

(ee) Constant tiredness;

(ff) Anxiety;

(gg) Depression, and

(hh) Post-traumatic stress disorder.

1. At the time as he was assessed by Dr Dixon, the claimant gave a history of taking Endone for pain relief and Lyrica for neuropathic pain. He also said that he had been taking anxiolytics due to anxiety. He then ceased Lyrica. He had booked an appointment for psychological counselling but had not taken up psychotropic medication such as antidepressant. He reported that he was seeing his local doctor regularly and orthopaedic and hand specialists as referred.
2. In his statement, the claimant said he had not consulted a psychologist, however he intended to do so in the near future as his mental well-being was not improving. At that time his medication included Panadol two tablets four times a day, ibuprofen one tablet three times a day, oxycodone one tablet four times a day when required for pain.
3. He complained that the medication caused him to fall asleep constantly, feel lazy and suffer from nausea.
4. In relation to his antecedent history, the claimant said in his statement that in August 2016 he was involved in a motor vehicle accident. He suffered a musculoligamentous soft tissue injuries to his neck, back and right knee and he made a claim for damages.
5. He said further that as a result of the injuries he sustained in the accident in 2016 he underwent an arthroscopy of his knee on 4 March 2019.
6. In the statement the claimant says that as a result of the injuries suffered in the August 2016 accident he was unable to work in his aluminium and glass installation business and remained off work for a year.
7. The claimant was cross-examined extensively by Mr Hanna. The claimant said that in the 2016 accident he was admitted to Liverpool Hospital for a couple of hours that he injured his neck and low back but not either of his shoulders or his right knee. Mr Hanna noted that history given to Dr Roger Pillemer, orthopaedic surgeon, on 18 February 2020 whilst that he had obtained employment in South Australia doing sedentary work. The claimant said that that was pursuant to a contract and that he was otherwise restricted to small jobs glazing. He claimed that his right leg recovered but he agreed that prior to the accident, the subject of these proceedings, he had been unable to return to full-time duties.
8. Mr Hanna put to the claimant that he told Dr Dixon, who assessed the claimant's WPI in respect of the physical injuries, that the effects of the injuries sustained in the 2016 accident had resolved within three months and that he returned to normal work. By way of response, the claimant said that he could not recall. I note here that the history put to the claimant is recorded in Dr Dixon's report. Mr Hanna put to the claimant various ongoing complaints made by him to his general practitioner, Dr Abdalla, in relation to the low back and right knee prior to this accident but the claimant said that he still had a disc in his back, his neck got better after a cortisone injection and he had recovered to 80-85%.
9. I have considered the whole of the clinical notes of Dr Abdalla and note that on 29 September 2016, he diagnosed a moderate chronic disc prolapse. There is also reference to a right meniscus tear on 6 March 2017 and on 23 January 2018, Dr Abdalla recorded a history of a twisting injury to the right knee again and that the claimant complained of constant pain, feeling down, inability to work and low mood. There are other references of complaints of neck, knee and back pain throughout the notes.
10. Mr Hanna questioned the claimant about a convenience store that he had run between July 2021 and September 2022. The claimant said that he used the settlement monies from his previous motor accident claim to purchase the business, that there were two employees and the business failed.
11. In September 2022, the claimant agreed that he commenced work as a truck driver after going broke. He said that the work was not heavy and involved him delivering burger buns on a trolley. The claimant said that he was sometimes late, he had pain in the head and everywhere and needed a break because of symptoms in his back and legs. On one occasion he blacked out.
12. Mr Hanna asked the claimant about work that he had done for a business known as Metro Transport. That work involved driving a bigger truck, delivering bricks and concrete. He obtained a forklift driver's licence to load and unload the truck. It was carried on the back of the truck. The claimant also obtained a heavy vehicle driver's licence. The claimant said he left that work because he could not put up with the constant use of his hands.
13. The claimant had done some casual driving, which caused lower back issues driving the truck.
14. In May 2023, the claimant commenced work with Australian Glazing as a supervisor around Sydney. He did that work until the 18 January 2024, but said that since that time he had been doing nothing and had been supported by his uncle and wife's family.
15. He had applied for a job as a train operator.
16. Mr Hanna also cross examined the claimant about his post-accident capacity for work and his attempts to find suitable employment. I will consider this further when I come to assess any allowance to be made for future economic loss.

1. Immediately prior to the accident, the claimant had commenced work on a casual basis with Mr Ali Mohsin Abdelmeer who runs a business known as the Gentleman's Barber Shop. I have a statement from him.
2. In that statement he said that he was approached by the claimant in January 2021 for work as barber. He was satisfied with the claimant's capabilities and decided to employee him to work on a casual basis, three days a week, maybe four if there was high demand. In his statement he says, relevantly:

"7 I told him to start in the week after Australia Day holiday. Mohammad worked on 27, 28 and 29 January, each day he worked four hours and the agreement was that I would pay him $20.00 per hour.

8 Our busier times are later in the week. I had asked him to come back the following week and work again on Wednesday, Thursday and Friday, possibly Saturday.

9 However, the following week he was involved in a motor vehicle accident on the Monday. I have seen him since the accident, he has been wearing a boot and both of his arms are in splints or casts. He has been unable to return to work since this accident.

10. On the three days after Australia Day that I observed him working, I can see that he was in a little bit of pain after standing for long periods, otherwise he was okay. They were not extremely busy days, so he was able to take breaks in between.

11. The plan was to see how he would cope with three days, and then gradually give him additional days if he could handle it."

1. In view of the 2016 motor accident, it is necessary to give careful consideration to the medical evidence available. I have already referred to the clinical notes of the claimant's treating general practitioner, Dr Abdalla and noted the references to ongoing neck, back and knee pain in the period from 2016 up to 23 November 2020, when the claimant complained to Dr Abdalla of low back pain radiating towards the legs. I note also that on 4 November 2019, Dr Abdalla diagnosed a chronic right extensor tendon partial thickness tear in the right shoulder.

1. Dr Pillemer reported to the claimant's then lawyers, AJB Stevens Lawyers, on 18 February 2020. Dr Pillemer was providing an opinion as to the injuries suffered in the motor vehicle accident on 8 August 2016, and the consequences thereof. The claimant reported to Dr Pillemer that he was having ongoing problems with his right knee with marked restriction of movement. Dr Pillemer noted that he had significant wasting and restriction of movement, such that the claimant was now wearing a wrap around his knee as well as a support. When his knee was bad, he had difficulty getting out of bed, but this was also due to his back and pain down his right leg. Dr Pillemer thought that there was evidence of L5 nerve root involvement in the right lower limb and that a further investigation in the form of an MRI was warranted. In so far as the impact of his injuries on the claimant's work capacity, Dr Pillemer opined:

"As far as employment is concerned, as noted, Mr Alhamdani was able to obtain employment in South Australia, which is sedentary work, and he does have to take intermittent periods off work when his symptoms flare up. It seems that his employers are happy with this.

In my opinion, he is only fit for restricted duties that did not place excessive stress particularly on his lumbar spine or his right knee.

From a prognostic point of view, in my opinion, it is again predictable that he is going to have ongoing problems in the longer term. His condition is now stabilised in the absence of further investigation and treatment."

1. The claimant's significant antecedent medical issues are also confirmed by the summary contained in the report of Dr Thomas Rosenthal.

1. Dr Rosenthal is an occupational physician who reported to the claimant's solicitor on 17 August 2022.
2. Dr Rosenthal is of the opinion that all the injuries complained of by the claimant were caused by the accident. However, he obtained the following past history from the claimant.

"As noted, he has had neck, back and right knee symptoms from the 2016 accident which was still persisting at the time of the 2021 accident but were made worse. He denied any other significant pre-existing conditions".

1. Dr Rosenthal helpfully summarised the claimant's antecedent medical history as follows:

"The clinical records from Alpha-Cure Medical Centre at Bankstown noted chronic disc prolapses at L3/4 and L5/S1 in 2016 and a right meniscus tear in 2017, 2018 and 2019. The 2021 record indicates a left patella haematoma as well as fractures of his left hand, right hand and left foot. A right elbow injury was recorded in 2019 and back pain was reported on 9 November 2019. Right knee pain was recorded on 7 November 2020, still requiring treatment and low back pain still recorded on 23 November 2020. The accident injuries were recorded on 1 February 2021 and subsequent treatment.

Records from Dr Rahme indicated treatment occurring to his right knee back in 2018 and 2019 with a large meniscal tear and arthroscopy occurring in March 2019. Dr Rahme reviewed him with a report dated 29 July 2021, noting left knee, foot and low back and neck injuries from the subject accident. He noted a surgical washout and removal of foreign body occurred for left knee from a puncture injury and noted a saphenous nerve injury near the site of his puncture wound with a positive Tinel sign.

An MRI of the left knee dated 5 February 2021, noted an incomplete lateral discord meniscus but no convincing tear, cruciate and collateral ligaments intact, and osseous contusion involving the anterior intercondylar region of the upper tibia with localised oedema within the adjacent intrapatellar fat pad.

An MRI of the left ankle and mid foot dated 26 June 2021, concludes: "Old fracture base of the fifth metatarsal bone, small bony contusions at multiple bones as described. Otherwise unremarkable."

X-rays of bilateral feet dated 26 June 2021 reported no acute fracture or dislocation demonstrated. Joint spaces outlined normally.

A CT of the right wrist dated 6 August 2021 revealed complete osseous union of the internally fixed fracture of the scaphoid.

An MRI of the lumbar sacral spine dated 9 August 2021, noted disc desiccation at L3/4. At L3/4 there was also a posterocentral disc protrusion on the background of a disc bulge and a left paracentral annular tear and focal disc protrusion to the left L5/S1.

A report from Agus Kadir dated 16 July 2021, noted his history, thinking he may have a right scaphoid non-union.

A further report from Dr Kadir dated 23 August 2021, noted his ongoing bilateral wrist and hand pain, thinking the right wrist pain may be explained by the malposition of the screw used to stabilise the scaphoid fracture, suggesting removal of the right scaphoid screw. He noted the 5th metacarpal non-union was in a functional position and that he had good little finger movement. No further treatment was required for this injury.

Dr Kadir provided a cortisone injection into his left thumb interphalangeal joint in October 2021 and noted improvement in the right wrist pain following the removal of the right scaphoid screw suggesting further physiotherapy."

1. As to the impact of the injury sustained in the accident, Dr Rosenthal opined relevantly:

"It appears he is significantly disabled by his injuries that have been caused by the accident. He will not be able to resume his pre-accident occupation.

He has chronic pain. He has significant restrictions in lumbar spinal movement and significant disability in regards to both upper limbs and the use of both hands due to the injuries from the accident. His mobility is restricted. He is not competitive on the open labour market.

There were multiple fractures both in his hands and left foot. Those fractures could cause an arthritic process in relation to the joints accelerating any degenerative process. The claimant will be unlikely to work to age 67. At best he would probably only be able to work to age 50 following which he is unlikely to have any ongoing fitness for work.

With improvement in the future he may be able to do office space work or a sit down job for three hours a day, five days a week.

The injuries to his hands and left ankle were clearly caused by the accident. There was aggravation of his pre-existing neck and back condition. The back condition, particularly, is causing ongoing issues. The neck and shoulder conditions appear to have resolved. There is still concern with his left knee but the right knee condition appears to have been entirely pre-existing."

1. The insurer arranged for the claimant to be assessed by the Vocational Capacity Centre who reported on 17 November 2023.
2. The claimant was assessed on 12 October 2023 concerning the claimant's work history. The following is set out in the report:

"Mr Alhamdani's work history is relatively limited. At the time of the accident, he was working gratuitously in a hairdressing traineeship, and before this, he worked as a glazier. He also has experience as a delivery driver and truck driver, as well as owning and operating a tobacconist store (the level of detail he described regarding this venture was limited in the current assessment). He said that he attempted to return to work as a hairdresser. However, he could not tolerate the constant fine motor skills required and subsequently returned to a supervisory role as a glazier.

Mr Alhamdani currently works for six days per week and reports to have earned a day rate of $880.00 as a subcontractor with his own ABN. He describes being responsible for the supervision of approximately 20 staff. He notes that he was previously a skilled tradesman and can visually assess the competency of work whilst occasionally demonstrating tasks using various hand tools which aggravates his pain.

"Psychologically, it is opined that Mr Alhamdani is unrestricted, as demonstrated by his ongoing full time employment as a supervisor in the glazing industry, notwithstanding the recommendations for him to seek psychological support given his endorsement of symptomology above.

In light of the above data, Mr Alhamdani's most suitable vocational options are likely to be found predominantly in the Trade persons and Related Workers, Sales Workers, Machinery Operators and drivers categories of the Australian and New Zealand Standard Classification of Occupations (AANZSKO). As to the claimant's future work capacity the assessor concluded:

"The ongoing range of movement and strength deficits in both hands, will continue to be a barrier to Mr Alhamdani's capacity to work as a barber or aluminium window joiner and results of these assessment demonstrate that he is best suited to work in the sedentary to light classification which does not rely on duties based on paced fine motor tasks or grip strength. He is demonstrating that he can manage full time work within his classification, or with the use of self‑directed postural variation and analgesic medication. Again, this assessor believes that there is a potential for Mr Alhamdani's low back symptoms and function to improve with the implementation of appropriate physical therapy (which has also been recommended by the treating GP).

The MVA of 2016 led to soft tissue injuries of the lumbar spine, and when comparing the CT scan of 2016 with the MRI dated 09/08/2021, it is not clear that there has been a significant extension of the injury to the lumbar spine. Furthermore, this assessor does not believe that Mr Alhamdani has had optimum management of his low back symptoms, given that he had not participated in appropriate physiotherapy intervention. Therefore, it is difficult to ascertain the full impact of, and how permanent the lumbar spine issues and symptoms are. Perhaps the only way to quantify the impact of the subject accident on the lumbar spine is to compare the WPI assigned post the MVA 2016 with the 5% assigned to the lumbar sacral spine by IME orthopaedic surgeon, Dr Rosenthal, in August 2022.

In a physically suited role, Mr Alhamdani is considered capable of full time work". Although the assessor assesses a special specialist qualification is that of a physiotherapist.

I agree that there is no medical evidence to suggest that there was a change in the pathology in the lumbar spine resulting from the subject accident."

1. I had available to me detailed written submissions by Mr John Cooper, solicitor, for the insurer dated 29 September 2025. Counsel for the insurer, Mr Hanna, also spoke to those submissions.
2. In the written submissions Mr Cooper pointed to the fact that the claimant had told Medical Assessor Dixon, that the symptoms resulting from the 2016 accident had resolved within three months. He relied on the history taken and opinion expressed by Dr Roger Pillemer as to the impact of the 2016 motor vehicle accident on the claimant's capacity to engage in social and recreational activities together with his capacity to work.
3. Mr Cooper further noted that the claimant had provided a history to a medical review panel that following the 2016 accident he had played soccer, road a pushbike, played snooker and went to the gym. No history was available as to when those activities were commenced. In relation to non-economic loss, Mr Cooper submitted:

"23 The claimant first attended upon his local medical officer after the motor vehicle accident on 18 February 2021. Although he was seen on a further seven occasions, it was not until 6 July 2021 that the claimant raised the presence of any back problems as a result of the motor vehicle accident.

24 The insurer does not dispute that as a result of the motor vehicle accident the claimant sustained fractures within his left hand, foot and right wrist. In the circumstances however, where the claimant continued to receive treatment in respect of ongoing symptoms in his neck, shoulders and low back only two months before the subject motor vehicle accident, the Member may have some doubts in relation to the unrestricted level of activity before the accident which was referred to in his statements.

The insurer would respectfully submit a reasonable allowance for non-economic loss would be $175,000.00."

1. Concerning past economic loss, Mr Cooper referred to the claimant's post-accident work activities. Referring to the claimant's taxation records he noted that in the 2018 tax return the claimant declared a gross income of $3,363 as a glazier. During the 2019 financial year the claimant earn a gross income of $2,081 as a labourer.
2. During the 2020 financial year the claimant described his main business activity as labouring-glazing service. The tax return dated 17 October 2022 suggested that the claimant's business achieved a gross income of $61,124 with operating expenses of $30,527.00 thus producing a taxable income of $30,587.
3. During the 2021 financial year the claimant received Centrelink benefits totalling $18,141. In addition he earned a business income of $26,388 with expenses of $10,396 which produced a taxable income of $15,942. The available evidence also established that the claimant was in receipt of Centrelink benefits from the period 21 July 2020 to 10 May 2021.
4. Mr Cooper pointed to the unreliability of the submissions made on behalf of the claimant under this head of damage with which I agree without setting out details of those submissions in greater detail. In conclusion, Mr Cooper submitted:

"35 Based upon the statements of the claimant, since the time of the accident, the following was the position in relation to past economic loss:

(a) He had worked full time between July 2021 and January 2024.

(b) The reason he ceased work was due to the restrictions on his employment which were present prior to the accident.

36 That the insurer submits that if those statements are to be accepted, the claimant has not suffered any economic loss as a result of the accident.

37 In his initial submissions the claimant made no claim for past economic loss and the insurer agreed that was appropriate in relation to this claim. In his submission dated 15 August 2025 he has made a claim based upon not only total incapacity for work but also calculated in accordance with gross average male earnings. The insurer disputes:

(a) That as a result of any injury sustained by the claimant in the motor vehicle accident, the claimant sustained a loss of income at the rate of $566.77 net per week from 1 February 2021 to 30 June 2021.

(b) That as a result of any injuries sustained by the claimant in the motor vehicle accident, the claimant sustained a loss of income at the rate of $1,340.50 from 15 January 2024 to date.

(c) That as a result of any injuries sustained by the claimant in the motor vehicle accident, he has been totally incapacitated for work since 18 February 2024.

(d) That if the claimant sustained any economic loss he would have an entitlement to loss superannuation. The financial material provided by the claimant indicates that he was self employed and accordingly responsible for his own superannuation".

1. In relation to future economic loss, Mr Cooper noted that Dr Rosenthal at the time of his examination, the doctor appeared to be unaware of the recent work history. Mr Cooper submitted that Dr Rosenthal's assessment that the claimant was fit for sedentary duties was consistent with the opinion of Dr Pillemer in his assessment prior to the subject accident more particularly Mr Cooper's:

I consider that he is capable of continuing in his chosen field as a glazier, albeit he is markedly restricted in various activities of work although is quite capable of performing supervisory and very light work."

44 Again, the Member may feel that the nature of the restrictions suggested were substantially in accord with the opinions expressed by Dr Pillemer some 12 months before the motor vehicle accident.

45 The insurer would respectfully submit that notwithstanding medical opinion, the claimant has displayed a capacity to work as a shopkeeper, truck driver and managerial supervisor. Whilst it would appear the symptoms alleged in his lumbar spine were the same as those which existed before the motor vehicle accident, the insurer acknowledges the allegation of ongoing symptoms in the wrist and foot. Notwithstanding, the claimant's post-accident employment would suggest an ability to earn more than he did prior to the motor vehicle accident. Indeed it is respectfully submitted the claimant's most likely future circumstances but for the accident would be:

(a) The claimant would continue to have ongoing symptoms in the lumbar spine and right knee, which will impede his ability to work from time to time.

(b) Notwithstanding, as work become available, he would obtain relevant positions and earn income commensurate to that which he earned for the 2022 to 2024 financial years.

46 The insurer would respectfully suggest that the claimant's most likely future circumstances but for the accident were those which have occurred.

47 The insurer does however acknowledge the fracture sustained by the claimant and notes the allegation of ongoing symptoms in the wrists and hands. The member may feel those symptoms could, from time to time, cause the claimant to have absences from work over and above that which would have normally occurred. In those circumstances, it is respectfully suggested the extent of any ongoing impairment may be compensated by reference to an overall lump sum figure, and in that regard would suggest an amount of $80,000.00."

1. Mr Hanna reinforced the submissions made by Mr Cooper concerning past economic loss he submitted there should be no allowance but that if I were to make allowance it should be in the form of a buffer not exceeding $10,000. He noted that the claimant had demonstrated a significant post-accident capacity for work like Mr Cooper he emphasised the opinions expressed by Dr Pillemer only 12 months prior to the subject accident.

1. As noted by Mr Cooper in his written submissions Mr Panteli Nicolopoulos provided written submissions on 30 January 2024. In those submissions he refers to the particulars of disabilities set out in the claimant's statement and suggests that the appropriate allowance for non-economic loss is $350,000. In relation to past economic loss, the submission was then:

"The claimant at the time of the accident was employed in his own business in the glazing industry. There was no claim made for past economic loss or past loss of superannuation. As to the claim for future economic loss it was submitted:

'The claimant has a further 42 years of working life until retirement age.

It is submitted that the claimant has lost the capacity to perform his ordinary duties and engage in any meaningful long-term employment as a result of the subject accident.'

Once a loss of capacity is established, "_What is to be evaluat_ed will be the extent of the possibility that the claimant may not work in the future or may lose time from work and determine the allowance of proper compensation in respect of that possibility." (see Kallouf v Middis [2008 NSWCA 61 at 49]).

Section 4.7 of the Motor Accidents Injuries Act 2007 requires an assessment of what the claimant's "most likely future circumstances" where at the time of the accident and what they are subsequent to the accident.

It is submitted that but for the subject accident, the claimant would have continued to work in his preaccident capacity with ordinary wage increases and increased hours. The claimant has suffered a demonstrable loss of his pre injury earning capacity and loss of value on the open labour market.

Taking the above into account, a claim for future economic loss is made at his preaccident rate of pay until intended retirement at 70 years of age.

In the alternative, a claim will be made in the form of a buffer allowance. A claim is made as follows: $350,000.00."

1. Mr Cleary for the claimant essentially relied upon the written submissions but suggested that the appropriate allowance for non-economic loss was $385,000. In respect to the past he submitted that a figure of $144,552 including superannuation was appropriate and that in respect of the claim for future economic loss the appropriate allowance was by way of a buffer in the order of $400,000.

1. Although obviously relying upon the history provided by the claimant that the injuries suffered in the accident on 4 May 2016 resolved within three months, I am bound by the determination of Medical Assessor Dixon that the following injuries were caused by the accident:
   • "Cervical spine - soft tissue.
   • Left foot - multiple fractures.
   • Left hand - multiple fractures.
   • Right hand - soft tissue.
   • Left knee - nerve damage.
   • Right knee - soft tissue.
   • Lumbar spine - disc bulge and annular tear
   • Bilateral shoulder - soft tissue.
   • Left wrist - soft tissue.
   • Right wrist - fracture and scarring."

The effects of those injuries in terms of the ongoing pain and suffering and any incapacity for work is another issue.

1. It is apparent from the clinical notes of Alpha-Cure Medical Centre and the report of Dr Roger Pillemer that as of February 2020, the claimant remained symptomatic in relation to his right knee, cervical spine and lumbar spine as a result of the injuries sustained in the 2016 motor vehicle accident.
2. Significantly, Dr Pillemer noted significant wasting and restriction of movement in the right lower limb. The claimant also complained of significant discomfort in his low back radiating into his right limb and that the back and leg symptoms were constantly present. The pain rating at times was as high as 8/10. In relation to his neck, the claimant complained of ongoing pain radiating into the trapezius area particularly on the right side which were intermittent but present on a daily basis and sometimes the pain were rated as high as 5/10.
3. However, there is no doubt that the claimant suffered serious fractures to the left foot and left hand as well as the soft tissue injuries described above. It should be noted that an MRI of the left ankle taken on 26 June 2021, showed an old fracture at the base of the metatarsal and small bony contusions and that the results were "otherwise unremarkable".
4. X-rays of the bilateral feet on the same day reported no acute fracture or dislocation demonstrated and X-rays of the bilateral feet again on the same day reported no acute fracture or dislocation being demonstrated with the joint spacers outlined being normal.
5. A CT of the right wrist dated 6 August 2021 revealed complete osseous union of the internally fixed fracture of the scaphoid. MRI of the lumbosacral spine on 9 August 2021 demonstrated changes consistent with the MRI investigation prior to the subject motor vehicle accident.
6. Although there was some note of disc desiccation, there is no evidence of any new pathology resulting from the subject accident.
7. Dr Kadir on 23 August 2021 determined that the screw inserted to secure the right scaphoid fracture needed to be removed. In October 2001 he noted improvement in the right wrist following removal of the right scaphoid screw the fractures having healed satisfactorily.

I am required in large part to rely upon the pain and restrictions complained of by the claimant both to the medical practitioners and in his evidence.

Dr Rosenthal accepts that the claimant suffers from chronic pain and was of the opinion that the claimant's ability to lead a normal life was significantly impacted. He concluded that the claimant has a reduced capacity with his hands as well as ongoing issues with his lumbar spine which are likely to persist indefinitely with all these injuries impacting on his activities of daily living.

I am not satisfied that the injuries to the cervical and lumbar spines were permanently aggravated by the subject motor vehicle accident. The evidence establishes that the claimant was significantly incapacitated so far as his neck, lumbar spine and right knee prior to the accident and these injuries and consequent disabilities were impacting on his activities of daily living and capacity to work.

The insurer does not dispute that the hand, foot and wrist fractures occurred in the accident and have resulted in some ongoing sequelae. Given the claimant's antecedent medical history and the associated restrictions, this is not an easy matter to assess the appropriate allowance for non-economic loss. The fact is that superimposed on his pre-accident symptoms and disabilities, the claimant is now further restricted in his activities of daily living and capacity to work. In all circumstances it seems to me that the appropriate sum to allow for non-economic loss is $275,000. In arriving at that figure I have considered the claimant's antecedent medical history and that he is still only 30 years of age.

1. I now turn to the question of assessing past economic loss. I have considered the available evidence as detailed above given the claimant's complicated work history and the impact of the injury sustained in the 2016 accident which was clearly restricting the claimant's capacity to work in a significant way before the subject accident, it is impossible to assess any entitlement to past economic loss by way of precise mathematical calculation. However, by reason of the serious hand injuries, I am satisfied that since the accident the claimant's capacity to earn on the open labour market has been further reduced. For example, I am satisfied that he could not work as a barber and would have difficulty with work involving repetitive use of the hands. Doing the best I can on the available evidence, I allow this sum of $35,000 by way of a buffer for past economic loss.

1. Again, assessing the appropriate sum to allow for future economic loss is complicated by reason of the significant impact on the claimant's earning capacity which I am satisfied pre-existed and resulted from the effects of the injuries sustained in the 2016 motor vehicle accident.
2. I am required to determine the claimant's most likely future circumstances but for the accident. It is the insurer's position that the most likely circumstances were those which have occurred since the accident. A modest allowance of $80,000 is suggested as being appropriate by the insurer. I am satisfied that prior to the subject accident the claimant was permanently precluded from performing the full physical duties required of a glazier. I am also satisfied, as opined by Dr Pillemer that the claimant pre-accident was only fit for very restricted duties that did not place excessive stress on the lumbar spine, the cervical spine or the right knee. Those restrictions would have prevented the claimant from not only working as a glazier, other than in a supervisory capacity but many other employment including labouring work and truck driving.
3. It is also apparent from the evidence that the claimant at a young age already had significant spinal pathology which has also impacted on his future employability.
4. I am mindful of the evidence of the barber who employed the claimant. Briefly, Mr Ali Abdelmeer who said in his statement:

"10 On the three days after Australia Day that I observed him working, I can see that he was in a little bit of pain after standing for long periods, otherwise he was okay. They were not extremely busy days, so he was able to take breaks in between.

11 The plan was to see how he would cope with three days and then gradually give him additional days if he could handle it."

1. The vocational assessment report noted that at the time of the assessment the claimant was earning $880 a day as a subcontractor and was responsible for the supervision of approximately 20 staff. He was capable of performing that work as he was a skilled tradesman and could visually assess the competency of work whilst occasionally demonstrating tasks using various hand tools, which aggravated his pain.
2. I find that this is the type of glazing work that the claimant was capable of performing prior to the subject accident. However, I accept that the injuries to his hands would impact on his capacity to demonstrate work using various hand skills, particularly as it aggravated his pain that is an added restriction to his capacity to perform that work resulting from the subject accident.
3. I reiterate the finding in the vocational assessment report that psychologically the claimant was unrestricted in his capacity to carry out full-time employment as a supervisor in the glazing industry notwithstanding the recommendations for him to seek psychological support given his endorsement of symptomology above.
4. In my opinion, the claimant's most likely pre-accident circumstances were that he would have continued to be fit for supervisory work as a glazier. He had already demonstrated that he was having difficulty performing work as a barber and would have required a sympathetic employer and regular breaks. I accept, however, that the claimant is now permanently incapacitated for that work by reason of the injuries to his hands.
5. I am also satisfied and so find that prior to the subject accident the plaintiff was unfit for the full-time work of a heavy transport driver and was also restricted in his capacity to drive light delivery vehicles and that those restrictions would have continued indefinitely. In his evidence, the claimant said that he had always been interested in the construction industry and would like to work in it in a supervisory capacity. He had been issued with a white card which would permit that work but it was no longer recognised. He said that he was now unable to stand for a long time which was not an issue before the accident. However, bearing in mind the observations of Mr Abdelmeer, I do not accept that evidence.
6. The claimant had also, post-accident, been involved in a brick washing and acid washing business but his proposed part had discontinued involvement. He said, and I accept that he could no longer do that work.
7. The award for future economic loss, in view of the evidence, can only be in the form of a buffer. It is again difficult to assess. Having determined the claimant's most likely pre and post-accident circumstances, it is apparent that the subject accident has imposed further limitations on the claimant's capacity for work such that, for example, he could not engage in work involving repetitive use of the hands such as a process worker.
8. As the claimant said in his evidence, he cannot stand or sit around and do nothing and he has demonstrated a willingness and capacity to engage in work particularly of a supervisory nature. On all the evidence and doing the best I can to do justice to the parties, I consider that the appropriate allowance for future economic loss occasion by reason of the injury sustained in the subject accident is a buffer of $225,000.
9. Damages to be awarded therefore total, $535,000 assessed as follows: