Issued under s 7.36(1) of the Motor Accident Injuries Act 2017

Assessment of claim for damages made in accordance with s 7.36 of the Act

1. On the issue of liability for the claim ALLIANZ's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury, loss and damage as a result of that breach of duty.
2. The amount of damages assessed in respect of this claim is $669,215
3. The amount of the claimant's costs taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 are the regulated costs.
4. Attached to this certificate are reasons for my assessment.

1. On 17 February 2023, Jean Paul Batakanwa (the claimant) had parked his vehicle in the emergency lane on the M4 motorway, near the exit towards Erskine Park. He had activated the hazard lights on his vehicle, as he intended to swap driving positions with his partner. The claimant and his partner alighted from the vehicle, and were standing near the driver's door, when suddenly and without warning, an unidentified vehicle, travelling at significant speed, collided with both the claimant and his partner, causing both to sustain injuries.
2. As a consequence of the accident, the claimant sustained a fractured left fibula, severe lacerations to his left arm and psychological injuries. He was taken by ambulance to Nepean Hospital, where he underwent debridement surgery to his left upper limb. His arm was placed in a sling, and his left leg was immobilised in a CAM boot. He was discharged on 19 February 2023. He remained on crutches for a period, and the stitches were removed from his left arm. He wore the CAM boot for a period of eight weeks and then had physiotherapy. He attended upon an exercise physiologist for treatment of the left arm and left leg. He also consulted a psychiatrist as he developed a post-traumatic stress disorder and a major depressive disorder.
3. The claimant was born in 1984 and will shortly be 41 years of age. Prior to his accident, he was employed at a Coles factory at Erskine Park, where he worked as a slicing hand, machine operator and beef packer. He worked between four to five days per week, averaging 40 hours per week. It is submitted he was earning an average of $980 net per week.
4. He ceased his employment as his daughter was born on 14 September 2021 and his partner was suffering from pregnancy complications. It was his intention to return to work once his partner had recovered from the pregnancy. Fortunately, she made a full recovery, and it was his intention to return to work but for this accident, no later than 1 July 2023.
5. It is submitted because of his injuries and his ongoing disabilities; he has been unable to engage in either full time or part time employment since 8 August 2021.
6. The insurer wholly admitted liability by letter dated 24 October 2023. Accordingly, the claim comes before me solely to assess damages. The insurer has conceded the claimant is entitled to damages for non-economic loss.

1. The following issues have arisen in this matter:

(a) non-economic loss.

(b) past economic loss.

(c) future economic loss.

(d) past superannuation, and

(e) future superannuation.

1. The main issues requiring my determination are as follows:

(a) what is the entitlement to damages for non-economic loss.

(b) to what extent if at all, have the claimant's injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until the present time and for the remainder of his working life, and

(c) what is the entitlement to damages which flow from the findings on the above issues.

1. I have considered the documents provided in the application and the reply and any further information provided by the parties.

1. At the assessment conference, the claimant was questioned by counsel for the insurer and confirmed he had not applied for any work since the accident. He said he wanted to get back to work, and when questioned as to whether he could be employed in a security job, he admitted he was qualified but said that he could not undertake this work at the present time. He said he could not take responsibility at the moment. He confirmed he had obtained between 10-14 certificates for various types of employment, but stated he cannot work now because of his physical and psychological problems. He said he is not "good" at working on a computer. He can use a computer for browsing the internet and reading and sending emails.
2. The solicitor for the claimant lodged on the portal a Curriculum Vitae of the claimant which I found to be impressive. His work history was extensive, and it is clear he has a number of skills in various occupations. When questioned by both counsel at the assessment conference I found him to be candid and forthright.
3. I refer to his statement dated 20 August 2024, and I note the following paragraphs,

1. " My symptoms have not improved. I continued to experience constant anxiety and low self-esteem. I feel down a lot of the time.
2. I have lost enjoyment in my life and will often avoid social events. I have lost a lot of friends since the accident.
3. I used to really enjoy working, now, I will often have feelings of hopelessness and uncertainty as to what my future will hold. I used to take a lot of pride in my work and my support to my family. I am unable to provide for them now and I have to rely on my partner working.
4. I have been experiencing memory loss since the accident. my partner needs to constantly remind me of things or send me reminder messages on the same day, for me to attend doctor appointments. I find it hard to read any articles on my phone or any paperwork. I cannot remember what is written on the first page. When I turn to the second page, I find that I focus in and out and I become frustrated and agitated. Even in completing this statement, I struggled and required the assistance of others.
5. My relationship with my partner and daughter has become very strained, I spent a lot of my time alone I am very snappy with them, and I find I take a lot of my frustration on them, I got easily irritated by small things and yell at my partner and daughter.
6. I always worked hard in my previous employment. My last employment was a heavy and demanding job which I managed well. There is no way I would have the physical ability or the brain power to perform this type of role at the present time.
7. I would say my English level is standard.
8. I have only worked in physical jobs doing manual handling."

1. I also refer to his statement dated 16 May 2025 in which he has elaborated on the sessions attended by him with Natasha Portelli, exercise physiologist. He commenced seeing her in on 21 November 2023. He was referred to her by his general practitioner (GP) Dr Dobell Brown. He saw her for a period of four months and the sessions would focus on improving his physical activity with his left leg and arm. The sessions included focusing and improving left leg and ankle mobility, stability, functional capacity, intolerance through a muscular strength and insurance exercise programme.
2. He states on most occasions after completing the sessions, he would be in significant pain and would take Panadol for pain relief. After completing some of the exercises recommended by Miss Portelli the pain in his left leg and arm never ceased but rather increased, especially in the leg. In his statement he further contradicts some of the notes recorded by Miss Portelli, particularly the report dated 20 March 2024, where she recorded a number completed exercises which he disputed. He further states since ceasing his sessions with her, he has continued to suffer from discomfort and pain in the left lower leg, which he states is excruciating at times.
3. I also refer to the statement of his partner Hsin-Yu Yang dated 11 September 2024 I note the following paragraphs

1. " Jean told me before the accident that he was planning to obtain a truck licence to drive trucks or buses and later joined the army.
2. After the accident and because of Jean's injuries, he has been unable to pass the heavy vehicle driving test, his memory is poor and he is unable to focus on the test.
3. Jean's mood is often low and depressed he has told me a number of times he feels useless because of his arm and leg he has low self-esteem.
4. Jean and I often argue because of his memory loss and lack of concentration we would have discussions about our family arrangements and later forget what was discussed or agreed on he would get frustrated by this an often and [sic] me. This would cause a lot of tension in our relationship.
5. Jean used to shower everyday but now he showers about once every two to three days he would just stay at home most of the time doing nothing really productive."

1. The solicitor for the claimant arranged for him to be examined on a medico legal basis by Dr James Bodel and I refer to his report dated 18 March 2024. Under the heading "Current Complaints" on Page 3 he has recorded the following:

"• Pain stiffness and weakness of grip strength in the left arm.

• He has a restricted range of elbow and wrist movement
• He cannot lie on the left side because of the pain.
• Pain and stiffness in the region of the left knee and a slight restriction of ankle movement.
• Pain with any activity that requires him to use his left arm in a strenuous manner."

1. On page 7 of his report, Dr Bodel opines the following:

"The claimant will need to be retrained. He was doing work in a meat packing company which would now be too heavy for him. Light to moderate manual tasks should be tolerable"

1. Counsel for the claimant also referred to a MRI scan of the lower leg dated 24 March 2025 which confirmed marked muscle atrophy and possible nerve involvement. He submitted these were objective findings which clearly demonstrate continued physical impairment.
2. The claimant was also seen on a medico legal basis by Dr Min Fee Lai, and I refer to his report dated 9 April 2024. Under the heading "Current Status" on page 3 of his report he states the following:

"Mr Batakanwa is very conscious of the scarring to his left arm. These scars are very obvious, and he therefore avoids wearing short sleeved shirts or T-shirts in public. This is to avoid any stares from passersby and comments from his peers when the scars are exposed. The wearing of long-sleeved shirts also protects him from the sun as these scars are also sensitive to sun exposure.

He complains particularly of the sensitivity of the scarring with itchiness as well as areas of pain within the multiple scarring. Mr Batakanwa also complains of not being able to lie on the left side when he is asleep due to the pain and irritation, if he does, so a result, he often wakes up at night to adjust his position in bed.

For relief of the itchiness and irritation as well as pain Mr Batakanwa would apply massage creams regularly throughout the day over the scarred region."

1. I also refer to the report of Dr Mark Langbart, specialist plastic surgeon dated 22 April 2024. He reviewed the claimant eight weeks after multiple corticosteroid injections to the left arm and forearm scars. He states the following:

"I am pleased to hear that Jean is extremely happy with the result. His scars are flat and are less prominent and are softer. Unfortunately, Jean is still suffering from pain and persistent pruritus In the scars.

On examination Jean's scars are softer and flat. Today we have discussed ongoing conservative measures such as regular moisturiser and massage. It is possible Jean's scars will benefit from revision in the future. However, I would like to leave this several more months before considering this"

1. I refer to the report from Julia Xiberras dated 20 May 2025. In which she states the following:

"Mr Batakanwa had a car accident on 17 February 2023 resulting in significant musculoskeletal issues including a broken leg, requiring 6 to 8 weeks in a cast, an arm injury requiring surgery and a three-day hospitalisation. In addition, Mr Batakanwa had a diagnosis of PTSD related to the car accident and presents with significant symptoms of depression.

Mr Batakanwa reported that his mood is often angry (angry outbursts) and depressed. He reported low motivation and fatigue. Mr Batakanwa reported memory issues since the car accident, including forgetting passwords and emails. He described dissociative experiences, including feeling physically present but mentally absent. The client reported daily alcohol use of 3 to 4 drinks per day on average, stating that alcohol helps him feel more present and able to focus. He also mentioned drinking 2 to 3 times per week in the morning before leaving his home. He reported a strained relationship with his partner, due to the mental health symptoms he experiences. He reported difficulty parenting his four-year-old daughter and engaging in play due to functional limitations from physical injuries.

Mr Batakanwa reported that impact of the car accident had resulted in an inability to work. Prior to the accident, the client was planning to become a truck driver but now feels unable to pursue this goal due to the accident."

1. The claimant was also seen on a medico-legal basis by Dr Abdul Khan consultant psychiatrist, and I note his reports dated 14 March 2024 and 9 April 2025. In his first report, I note the following on page 2:

"As a result of the above mentioned traumatic motor vehicle accident, Mr Batakanwa, experienced deterioration in his mental state characterised by nightmares flashbacks and distressing memories about the traumatic accident, physical and emotional symptoms of anxiety and panic, hypervigilance (particularly when inside vehicles) heightened startle reaction, irritability, agitation, avoidance of trauma related reminders,( including avoidance of motorways ) low mood, social withdrawal, reduced motivation, reduced energy, reduced enjoyment in activities, sleep disturbance with poor sleep maintenance and weight loss of approximately 5kg. He also struggled with impaired attention, impaired concentration, impaired memory, feelings of hopelessness and worthlessness, passive suicidal ideations, loss of self-confidence, loss of self-esteem, loss of self-identity and difficulties with trust in interpersonal relationships",

He opined the claimant's cognition had evidence of impairment in attention, concentration and memory. He had appropriate insight and judgement. In relation to prognosis, he stated the following on page 5 of his report:

"Mr Batakanwa's progress is guarded. He continues to suffer from pervasive symptoms of trauma, depression and anxiety, which have a profoundly negative impact on his social occupational and other important here is a functioning. Unless there is significant improvement in his physical injuries and chronic pain, which seems unlikely given the trajectory of his physical health recovery to date. His mental health difficulties are likely to persist for the foreseeable future."

1. On page 7 of his report Dr Khan states the following:

"Mr Batakanwa, was not working at the time of the subject accident as he was caring for his daughter. He has not been able to function at his pre accident level due to the ongoing impact of his psychiatric/psychological injury on his mood regulation, motivation, energy, sleep patterns, appetite, attention, concentration, memory, ability to tolerate stress and pressure, coping mechanisms, self-confidence, self-esteem, self-identity, and trust in interpersonal relationships.

When considering his age, educational qualifications, training, experience, employment skills and individual characteristics, Mr Batakanwa is not presently able to undertake any occupations. Mr Batakanwa is not fit to work."

1. On page 9 of his report dated 9 April 2025 Dr Khan opines the following:

"When considering my most recent assessment of Mr Batakanwa, on 9 April 2025, the trajectory of his psychiatric/psychological condition since my previous assessment of him on 14 March 2024 and review of the additional documentation provided, it is my opinion that Mr Batakanwa does not have capacity for any employment in the foreseeable future. In order for Mr Batakanwa, to have capacity to work in any employment, he requires an intact mental state, intact cognition, intact ability to tolerate stress and pressure, intact coping mechanisms, intact self-confidence. intact self-esteem, and intact confidence in interpersonal relationships.

The subject injury has eroded his functioning in these domains

Despite engaging in psychiatric treatment and psychological treatment to date, which has included ongoing adherence with appropriate medication of which prazosin Is sedative in nature, Mr Batakanwa's psychiatric/ psychological condition had not improved to an extent to enable him to explore any realistic return to work goals. From a psychiatric perspective, this condition related and treatment related factors preclude him from having any capacity to work in the foreseeable future."

1. He was also examined by Dr Horace Ting, and I refer to his reports dated 12 November 2024 and 21 May 2025. Dr Ting is an occupational therapist/ vocational assessor. His reports are quite comprehensive. Dr Ting was of the opinion the claimant did not exhibit signs of symptom magnification. In summary, he is of the opinion the claimant is not presently fit for work and is unlikely to return to meaningful employment in the foreseeable future. It is submitted by the solicitor for the claimant, the opinion of Dr Ting is based on holistic assessment of physical, cognitive and psychological factors.

1. The solicitor for the insurer submitted there are several inconsistencies in the medical evidence which may result in a query regarding the validity of the claimant's presentation to medical experts. In the final report of Natasha Portelli dated 20 March 2024, inter alia, she reported the following.

"Despite Mr Batakanwa was limited self-perceived improvement, his physical assessment details otherwise which continues to highlight the miscorrelation between his perceived and actual functional ability, Mr Batakanwa has improved his muscular strength and endurance exercises including pushing, pulling, waist to chest lifting, squatting and calf endurance ability.

Mr Batakanwa's certificate of capacity has increased recently to 8 hours per day five days per week however Mr Batakanwa is very adamant that he does not want to return to work until he is 100%. Education regarding a new vocational role has been provided however Mr Batakanwa wants to return to a physical job requiring standing for greater periods of time which at this stage he is unable to complete

Despite Mr Batakanwa ROM remaining relatively like that at the initial assessment, his muscular strength and endurance is have significantly improved. This then continues to raise the question of Mr Batakanwa was misconception of his current pain to his functional capacity. During the reviews, Mr Batakanwa was unaware of the weights he was lifting until he was told once the weight was mentioned, his negative pain beliefs increased. All these assessments completed did not increase his symptomology at a significant amount."

1. It is further submitted regarding the report of Dr Horace Ting, as follows:

"The claimant's grip strength was recorded and said to be 22% below norm for the right hand and 48% below normal for the left hand there is no allegation of which the insurer is aware that the climate has injured his right hand no explanation has been given as to why his right-hand grip strength is reduced."

1. There is also a concern Dr Ting administered the Rivermead Behavioural Memory Test, which it is submitted is designed to assist persons with traumatic brain injuries. I confirm there is no allegation he sustained a traumatic brain injury and accordingly the findings by Dr Ting in relation to this test, are, in my opinion, flawed.
2. In relation to the report of Dr Gothelf dated 24 February 2025, the insurer notes he recommended investigation of a potential peroneal nerve palsy and did not comment on the prognosis of the palsy. It is submitted in the absence of any further evidence; this makes this report of very limited utility in assessing the lower limb injuries. Furthermore, it is also of limited assistance in determining work capacity.
3. The insurer also refers to the report of Candice Rendell general psychologist dated 22 August 2024 where she states the following on page 2 of her report:

"As the last few sessions have been spent discussing the same task and expectations with no change in engagement with set exposure therapy tasks, it has been decided that treatment will cease. Jean Paul may benefit from seeing another psychologist, but the main determinant of outcomes will be dependent on the work he puts into healing and changes outside the appointment.

While I can confirm that Jean Paul is still suffering from PTSD symptomology there is little I can do as the psychologist at this point to encourage and push him to put the effort into recover task engagement."

It is submitted by the insurer this is entirely consistent with the claimant not effectively contributing to his own recovery as recorded by Miss Portelli. It is further submitted it is consistent with the claimant embellishing his impairment.

1. The insurer arranged for him to be examined by Dr Thomas Newlyn psychiatrist, and I refer to his report dated 11 March 2025. He has provided a comprehensive report and on page 11 he provides a detailed schedule of all medical reports and other documentation reviewed by him. He is of the opinion the claimant is suffering from an adjustment disorder with mixed disturbance of emotions and conduct. He believes there will be a significant reduction in disability once the damages claim is resolved and he is further of the opinion, the claimant will be fit to undertake full pre accident work duties until normal retirement age.
2. Counsel for the insurer also referred to various extracts from the clinical notes of Dr Julian Dobell Brown. He was proactive in encouraging the claimant to return to work in alternate roles. In the note dated 22 January 2024, he records as follows:

"Would like to return to security work but not until close to preinjury strength

In the notes dated 18 March 2024, he records the following:

"Feels like he will never be able to get back to jobs he wants to do."

He then records he discussed with the claimant returning to full time work and explained he may have to accept a different lower paying job.

In the note stated 15 April 2024 he records as follows:

"He is refusing to seek work for position where he will be making less money than the job he had before the accident."

He then records he spent a long time discussing the claimant's obligations re recovering from condition.

1. In the note dated 28 June 2024 He discusses with him the potential for returning to work in alternate roles e.g. building site security. However, it is recorded the claimant does not think he is physically fit enough for that type of work.

In the note dated 26 July 2024, he again discussed returning to work and strongly advised him to meet with RTW coordinator to assist with return to workforce. He records this advice was declined by the claimant.

1. The claimant is entitled to damages for non-economic loss. The solicitor for the claimant submitted a sum a $400,000 for such damages. The insurer, in response, has submitted a sum of $150,000. I have already noted in my reasons, I found the claimant to be candid and forthright when questioned by both counsel at the assessment conference. I find his psychological injuries are of the most concern to him, and this primarily prevented him from taking appropriate steps to resume gainful employment. It is apparent from both his statements and the statement of his partner; he is continually depressed and certainly very conscious of his extensive scarring his left arm. His relationship with his partner and young daughter is strained because of his temperament. He needs to seek counselling and the assistance as recommended Candice Rendell, general psychologist, in her report dated 22 August 2024.
2. He is a relatively young man, and I consider his ongoing disabilities permanent, and I therefore consider an appropriate allowance for non-economic loss is the sum of $280,000.

1. The solicitor for the claimant has submitted I should allow a sum of $1,077 net per week from the 1 July 2023 to date plus an allowance for past superannuation. It is submitted the claimant intended to return to work no later than 1July 2023. He last worked on 8 August 2021. Since the date of the accident to date and continuing, he has been in receipt of Centrelink benefits of approximately $800 net per fortnight.
2. In response, the solicitor for the insurer has proposed I should allow a net weekly loss of $950 plus superannuation for a period of 76 weeks 1 January 2024 up until the present time and this calculation should be reduced by 50%, which would result in a sum of $40,000 inclusive of superannuation. This calculation is proposed on the basis the plaintiff could have resumed employment, on a part time basis, as his alleged incapacity for work was not total but partial having regard to the opinions expressed by Natasha Portelli in her various reports. I have also noted the opinions expressed by Dr Thomas Newlyn, psychiatrist, in his report dated 11 March 2025.
3. I further note the statement of the claimant dated 20 August 2024 where he states his daughter was born 14 September 2021. At paragraph 28 of his statement, I note the following:

"28. It was agreed that I would look after my daughter and our household duties until she was around 2 or 2 and a half years old, when we would put her in daycare. It was agreed once that occurred, I would return to work full time. "

1. A period of 2 1/2 years after the birth of his daughter on 14 September 2021 results in a period until March 2024. I therefore accept the proposed return to work date of 1 January 2024 by the insurer as being appropriate in the circumstances.
2. I find the claimant did intend to return to work at some date post-accident, and I accept the submission from the solicitor for the insurer as being appropriate in the circumstances, but I do not accept the claimant had a 50% loss of earning capacity for this period, but rather I determine he had 100% loss of capacity.
3. I therefore allow the sum of $81,225 for past economic loss including an allowance for past superannuation.

1. The solicitor for the claimant has submitted I should allow a continuing economic loss $1,077 net per week for the remainder up the claimant's future working life until the proposed retirement age of 67 years. This results in a calculation $665,650 plus a claim for future superannuation. In response, the solicitor for the insurer has proposed an allowance of a 50% reduction in work capacity for the next two years and allowing for future superannuation and deducting 50% for vicissitudes, results in a calculation $44,968.
2. As considered by me in paragraph 32 above, the claimant has adopted an attitude of continual reluctance to take appropriate steps to re-enter the workforce. He has been encouraged by both Natasha Portelli and Dr Dobell Brown to return to work in alternate roles. His attitude to refuse to seek work for a position where he will be making less money than the job he had before his accident, is unrealistic evidence of the fact he has adopted a stubborn attitude towards mitigating his damages. He advised Natasha Portelli he did not want to return to work until he is 100%, is completely misguided.
3. I find the most likely future circumstance for him is, that while he will continue to suffer from his ongoing disabilities which will cause him to suffer a diminution in his earning capacity for the remainder of his working life, he will in the future, be capable of seeking employment and undertake duties suitable to his physical restrictions. In this regard, I note the opinions expressed by a Dr James Bodel in his report. I find ultimately, he will recover mostly from his psychological injuries, once he benefits from counselling and, once he also adopts a more positive attitude. Having regard to his work history, I am confident he can rejoin the workforce in the future and to the best of his ability adapt to his predicament.
4. I have therefore calculated future economic loss based on a loss of income of $950 net per week for the next two years with no deductions for vicissitudes. This results in a calculation of $94,430 in accordance with the actuarial tables. I have calculated future superannuation on this sum at 14.36%, which results in a sum of $13,560.
5. After expiration of the two-year period, I consider it appropriate in the circumstances to allow an amount by way of a buffer rather than a precise calculation for future loss of earnings.
6. I therefore award future loss of earnings after the two-year period by way of a buffer In the sum $200,000, which also includes an allowance for future superannuation.

1. Under sub-s 7.36 (1)(b) of the Motor Accident Injuries Act 2017 (MAI Act), I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
2. I assess the claim as follows on the findings set out above:

total of economic losses and non-economic loss $699,187

1. I assess the claimant's legal costs and disbursements in accordance with the MAI Act and the Motor Accident Injuries Regulation 2017 as scheduled fees and agreed disbursements.

1. On the issue of liability for the claim ALLIANZ's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury, loss and damage as a result of that breach of duty.
2. I specify the amount of damages for this claim as $669,215 which includes the statutory benefits paid by the insurer which total $NIL.
3. The amount of the claimant's costs, taking into account the amount of damages assessed in respect of this claim, is assessed in accordance with the MAI Act as the scheduled costs and agreed disbursements.

1. In making my decision I have considered the following legislation and guidelines:

(a) MAI Act;

(b) Motor Accident Injuries Regulation 2017

(c) Personal Injury Commission Regulation 2020

(d) Motor Accident Guidelines 2017, and

(e) Personal Injury Commission Rules 2021.