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

1. The amount of damages for the claim is $2,687,149.
2. The insurer is to pay the claimant's legal costs and disbursements in accordance with Part 8 of the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 as agreed or assessed and as assessed in the statement of reasons in respect of the unregulated fee for the forensic accounting report of Furzer Crestani dated 3 April 2023 in the sum of $8,360.
3. Given the sensitive personal information referred to in the attached statement of reasons, I direct that the decision be de-identified before it is published in accordance with rule 132 of the Personal Injury Commission Rules 2021.

A statement setting out the Commission's reasons for the assessment is included with this certificate.

1. This dispute relates to an application for an assessment of a claim for damages (the Application) under s 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 2 July 2019 (the motor accident).
2. [BRY] (the claimant), is a 51-year-old woman (almost 52), who alleges she suffered physical and psychological injuries as a result of the motor accident.
3. On 2 September 2019, the claimant made an application for personal injury benefits in respect of the motor accident. Allianz Australia Insurance Limited is the relevant compulsory third-party insurer (the insurer).
4. On 10 March 2021, the claimant made an application for damages under common law.
5. On 1 July 2022, the claimant lodged the Application with the Motor Accidents Division of the Personal Injury Commission (Commission).
6. On 22 July 2022, the insurer partially admitted liability on the basis that the motor accident was a "no fault accident" within the meaning of the MAI Act. The insurer alleged contributory negligence on the part of the claimant, which it assessed at 25%.
7. At a preliminary conference on 6 September 2024, the matter was set down for an assessment conference on 22 November 2024. At the assessment conference, Ms Jnana Gumbert of counsel appeared for the claimant, instructed by Ms Julie Mahony, solicitor. Mr Bede Kelleher SC appeared for the insurer, instructed by Ms Antonia Vo, solicitor.
8. The parties confirmed that they were aware of the decision in Chang v McTye[1] in respect of the operation of s 121 of the Transport Administration Act 1988 and that an appeal in that case was pending before the Court of Appeal at the time of the assessment conference. The claimant advised that she was only pursuing damages for past and future economic loss including superannuation in these proceedings. The appeal referred to above was subsequently dismissed by the Court of Appeal.[2]
9. At the commencement of the assessment conference, the parties agreed that the following issues were required to be determined by me:

(a) any contributory negligence on the part of the claimant;

(b) the nature and extent of the claimant's injuries and incapacity;

(c) the claimant's entitlement to damages for past loss of earnings or past loss of earning capacity, including superannuation, and

(d) the claimant's entitlement to damages for future loss of earnings or future loss of earning capacity, including superannuation.

1. At the commencement of the assessment conference, the parties agreed that:

(a) settlement negotiations had been exhausted;

(b) the claimant had no entitlement to damages for non-economic loss;

(c) the deduction to be made under s 3.40(1)(b) of the MAI Act (statutory payments of weekly benefits) amounts to $460,155.10;

(d) payments made by the insurer under s 4.5(1)(d) of the MAI Act (Fox v Wood damages) amount to $70,837;

(e) there were no advance payments made to the claimant by the insurer, and

(f) neither party required me to issue my decision in draft.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) the claimant's final tender bundle of documents relied on in her case lodged with the Commission on 12 November 2024 (claimant's documents);

(b) the insurer's final tender bundle of documents relied on in its case lodged with the Commission on 28 October 2024 (insurer's documents);

(c) the claimant's written submissions in reply lodged with the Commission on 21 November 2024 (claimant's submissions in reply), and

(d) the insurer's supplementary tender bundle of documents relied on in its case lodged with the Commission on 21 November 2024 (insurer's supplementary documents).

1. Oral evidence was adduced from the claimant at the assessment conference.

1. The claimant's legal representatives provided a schedule of damages and written submissions on the substantive issues dated 11 November 2024, supplemented by oral submissions at the assessment conference.[3]
2. The insurer's legal representatives provided written submissions on the substantive issues dated 20 November 2024, supplemented by oral submissions at the assessment conference.[4]
3. The claimant's legal representatives provided written submissions in reply dated 21 November 2024.[5]
4. Outlines of the parties' respective submissions are referred to under each relevant issue for determination set out below.

1. On 2 September 2019, the claimant signed an application for personal injury benefits in respect of the motor accident (the application form).[6]
2. The application form set out the basic particulars of the motor accident and the claimant provided the following description of the motor accident:

"I got on the M 30 bus at stand T at approximately 6.07pm on 2 July to travel home. As the bus was full I moved to the back of the bus & stood holding one of the straps which was attached to a metal bar near the ceiling. As the bus approached the Falcon Street exit it began to excellerate [sic] so that at the time it took the corner off the Warringah Freeway onto Falcon Street it would have been travelling at 80 to 90 km per hour (this being a very common thing for buses to do at this corner to beat the lights). Unfortunately I lost my footing & twisted my back as the bus took the corner. Once the bus straightened up the pain in my lower back & right leg was a 10/10. I got off the bus at the first stop & managed to ring my partner, ... , who took [me: sic] straight to Emergency at RNSH. He had to get a wheelchair to move me from the car to Emergency."[7]

The claimant's statement to SureFact Australia Pty Limited dated 23 February 2020

1. In evidence, there is a statement by the claimant dated 23 February 2020 made to an investigator engaged by the insurer.[8] I will now refer to the relevant parts of that statement.
2. The claimant stated that, on 2 July 2019, after leaving work between about 5.30pm or 5.45pm, she boarded the M30 bus to Mosman at the T bus stand at Wynyard. She described the bus as being one of "those long red bendy buses"[9] (an articulated bus).
3. The claimant stated that the bus left Wynyard at 6.07pm. It was full of passengers, so she moved to the very rear of the bus and stood, grasping onto one of the straps that hung down from a metal bar near the ceiling that ran along the length of the bus. At about 6.30pm, the bus was travelling along the Warringah Freeway and as it turned right into Falcon Street, it accelerated to about 80kmph to 90kmph in order to beat the traffic lights. As the bus was turning, she lost her footing and twisted her lower back. She almost immediately felt pain in her lower back and right leg and rated the pain as 10/10.
4. The claimant stated that she was in so much pain that she got off the bus at the next bus stop. She exited from the door towards the back of the bus and so, did not speak to the driver. She just had to get off the bus because of the pain and was not thinking about too much else. She was in tears with the pain as soon as she got off the bus. She could barely stand. She telephoned her partner and asked him to pick her up. Her partner drove her straight to Royal North Shore Hospital. He got her a wheelchair from inside the hospital, assisted her out of the car and took her into the emergency department in a wheelchair.

The claimant's statement dated 11 November 2024

1. In evidence, there is an evidentiary statement provided by the claimant to her lawyers dated 11 November 2024.[10] I will now refer to the relevant parts of that statement.
2. The claimant stated that, between about 6.30pm and 7.00pm on 2 July 2019, she was travelling on the M30 bus on her way home from work. She was standing at the rear of the bus with her left hand through a strap which hung down from above her.
3. The claimant stated that the bus was running about 30 minutes late and travelled at high speed across the Sydney Harbour Bridge. As the bus approached the Falcon Street, Neutral Bay exit on the Warringah Freeway and commenced turning right onto Military Road, it did not slow down. This caused the back of the bus to swing wildly resulting in her losing her footing and twisting her back. Immediately after the incident, she suffered incredible pain. She got off the bus at the next stop.
4. The claimant stated that, after getting off the bus, she telephoned her partner and he came to pick her up and drove her to Royal North Shore Hospital. As a result of the accident, she injured her lower back and also developed a psychological disorder.

1. In response to questions asked by Ms Gumbert in respect of the incident on the M30 bus on 2 July 2019, the claimant stated:

(a) she was standing sideways right at the back of the articulated bus holding onto a strap made out of thick material;

(b) the bus came off the Warringah Freeway at high speed causing the back of the bus to swerve towards the gutter out of its lane;

(c) she was thrown violently as the bus went towards the gutter;

(d) the bus swerved back and she was thrown violently in the opposite direction;

(e) she was unable to get her left hand out of the strap and she ended up dangling from it;

(f) passengers around her screamed as the bus swerved one way and then the other;

(g) the incident occurred quickly;

(h) she had never experienced being thrown as violently on an M30 bus;

(i) she never expected the back of the bus to swing, and

(j) she was in absolute agony from pain in her back and legs, especially the right leg, immediately after the incident.

1. In response to questions asked by Mr Kelleher SC in respect of the incident on the M30 bus on 2 July 2019, the claimant stated:

(a) she used to get the M30 bus and observed that bus drivers would regularly speed up to beat the traffic lights at the end of the Warringah Freeway off ramp and Falcon Street;

(b) the bus was a double articulated bus;

(c) the speed of the bus at about the time of the incident referred to in her evidentiary statement was only an estimate but she knew that it was going fast, faster than 50kmph;

(d) there is a sweeping right hand turn from the Warringah Freeway off ramp into Falcon Street;

(e) she was standing sideways at the time;

(f) the bus swung towards the gutter on the Neutral Bay side and then swung back into the other lane;

(g) she had never experienced the back of the bus swing out before;

(h) she did not know if anyone else stumbled or fell at the time of the incident;

(i) she was not sure what she was doing with her right hand and conceded that it was possible that she was holding a mobile telephone, and

(j) she denied not being prudent at the time of the incident and disagreed that, if she had been holding her mobile telephone in her right hand, it would have been prudent to put it down.

1. In evidence, there is a transcript of an audio-visual interview recorded on 8 June 2021 between Mr David Hargraves, an investigator engaged by the insurer and Mr Markos Tilaye, the driver of the subject M30 bus on 2 July 2019.[11]
2. Mr Tilaye stated that he had been a bus driver for 11 years. He had been employed by State Transit and was now employed by Transit System Australia. He held an HR class licence.
3. Mr Tilaye stated that the last traffic infringement he received was for speeding four years earlier and that he had never had his licence cancelled or been disqualified from driving. He had been driving for about 25 years and was an experienced driver.
4. When questioned about the incident on the M30 bus on 2 July 2019, Mr Tilaye stated that he had made enquiries of his supervisor, who had confirmed that he was the driver of that bus; that it was a 2000 model Volvo; that its registration number was 2316ST; that the route commenced at Sydenham railway station and ended at Taronga Zoo, via the Sydney CBD and over the Sydney Harbour Bridge. He identified one of the city bus stops as stand T at Wynyard railway station.
5. Mr Tilaye stated that, after crossing the Sydney Harbour Bridge, the bus exited the Warringah Freeway at Falcon Street. It was put to him that the claimant stated that the bus he was driving accelerated to 80kmph to 90kmph at the time it took the corner of the Warringah Freeway and turned right onto Falcon Street. He denied that it was possible to travel at such a speed turning onto Falcon Street. He added that the bus had a speed limiter on it which prevented it from exceeding 80kmph.
6. Mr Tilaye confirmed that the M30 bus was an articulated bus and that it could have been about 19 metres in length. If the bus had been travelling at the speed alleged, it would have tipped. Further, such speed could not be achieved on a loaded bus on a freeway. The maximum speed in a straight line would be 70kmph. He confirmed that there was no way a right-hand turn could be made from the Warringah Freeway exit onto Falcon Street at even 60kmph or 50kmph. The speed would have to be lower than that.
7. Mr Tilaye stated that, at 6.30pm in July, it would have been dark. The bus would have been full because it was peak hour. He stated that he did not recall any incident happening on the bus. If there was an incident on the bus, it would have been videoed. If someone complained of something that had occurred, he would press an incident button which would highlight the period 10 minutes before and 10 minutes after he pressed the button. Further, he would report the incident on the bus radio to the bus radio room. No one came to him to report an incident where they had sustained an injury because of reckless driving or the like. Neither he nor his supervisor could locate any documentation that supported an incident occurring on the bus at 6.30pm on 2 July 2019. He also confirmed that there was no video footage of any incident on the bus on 2 July 2019.

1. The insurer bears the onus of proving contributory negligence on the part of the claimant.
2. In its written submissions dated 20 November 2024, the insurer applied the wrong legal test in respect of contributory negligence in this case as it is a no fault accident. The authorities that the insurer relied on in those written submissions have no application in a no fault accident case where there can be no apportionment between a plaintiff and defendant.
3. The correct test for contributory negligence in a no fault accident claim under the Motor Accidents Compensation Act 1999 was set out by the Court of Appeal in Axiak v Ingram[12] (Axiak). The same test is applicable in a no fault accident under the MAI Act.
4. In Axiak, Tobias AJA stated:

"83. I would accept the respondent's submission that the exercise called for in Podrebersek can have no application to a case such as the present. Part 1.2 of the Act proceeds upon the assumption that the defendant driver is not at fault. Accordingly, comparisons of culpability and of the relevant importance of the acts of the parties in causing the first appellant's injuries is inappropriate.

1. I would also accept the respondent's submission that the deeming provision of s 7B(1) has no part to play in the present exercise. That is because it is simply impossible to determine the degree of fault which is to be attributed to the driver which, as submitted by the respondent, may be assumed to be minuscule. Although I accept that submission, it does no more than illustrate the inappropriateness of applying the principles in Podrebersek.
2. It follows that the concept of "contributory negligence" in s 7F of the Act has to be applied in a different manner to the usual comparative analysis of responsibility undertaken in personal injuries cases. This can be done consistently with the objectives of the legislation by inquiring how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety. The reduction of damages under Division 1 of Part 1.2 by reason of contributory negligence will therefore be determined by assessing the extent to which the plaintiff departed from that standard."
3. Accordingly, in the circumstances of this case, I am to inquire how far the claimant had departed from the standard of care she was required to observe in the interests of her own safety.

1. The insurer admitted that the motor accident was a blameless accident but alleged contributory negligence of 25% on the grounds that the claimant:

(a) failed to maintain a proper hold;

(b) failed to monitor and pay attention to the bus's movements;

(c) failed to ensure that she was standing safely on a moving bus;

(d) failed to ensure that she maintained a safe stance on a moving bus, and

(e) failed to exercise reasonable care and safety.

1. The insurer relied on the transcript of an audio-visual interview recorded on 8 June 2021 between Mr Hargraves, an investigator and the relevant bus driver, Mr Tilaye.
2. There was no evidence that Mr Tilaye drove negligently and he had no recollection of the accident. Mr Tilaye's evidence was that he was unable to drive in excess of 80kmph because of a speed limiter installed on the bus.
3. Fault is deemed by reason of the blameless provisions and the insurer acknowledged that Mr Tilaye bears greater responsibility for the accident. However, the claimant was not without culpability.
4. At the assessment conference, Mr Kelleher SC conceded that, in its written submissions dated 20 November 2024, the insurer had applied the wrong test in respect of contributory negligence in a no-fault accident situation.
5. The claimant was familiar with the area and the bus route. She alleged that the bus would have been travelling at 80kmph to 90kmph as it made its turn (which was disputed) and that this was a very common thing for buses to do at this corner in order to beat the traffic lights. Despite forming such a view, the claimant failed to take reasonable care and safety for herself.
6. A finding of 25% contributory negligence is appropriate in the circumstances.

1. The insurer bears the onus of proving contributory negligence.
2. The insurer's allegations of contributory negligence on the part of the claimant are devoid of merit.
3. Mr Tilaye's evidence had no probative value. He could not remember the accident. His evidence was nothing more than his reconstruction of what he thought may have occurred. Much of his evidence was conjecture.
4. In any event, it did not matter whether the bus was travelling at 80kmph or 50kmph to 60kmph because liability had been admitted by the insurer on the basis that it was a no-fault accident.
5. The claimant was holding onto a strap that was provided for standing passengers to hold onto. In the insurer's allegations of contributory negligence, it was not clear what the insurer meant by way of "proper" hold or in what way the claimant's hold was not "proper".
6. In the insurer's allegations of contributory negligence, there was no explanation of the basis for the alleged duty on the claimant to "monitor and pay attention to the bus's movements" and there was no evidence that she was not doing so in any event.
7. In the insurer's allegations of contributory negligence, there was no explanation of what "standing safely" meant or what the claimant was supposed to be doing differently to what she was actually doing, which was standing and holding onto the provided strap.
8. In the insurer's allegations of contributory negligence, there was no explanation of what a "safe stance" was, or that the claimant had not adopted a safe stance at the time of the accident.
9. In the insurer's allegations of contributory negligence, there was no explanation of how the claimant failed to exercise reasonable care and safety.
10. Importantly, in respect of each of the insurer's allegations of contributory negligence, there was absolutely no evidence that had the claimant done anything differently, it would have made any difference to the injuries she ultimately sustained.
11. Even if the insurer could prove some departure from the standard of care the claimant was required to exercise for her own safety (which it cannot), the insurer cannot prove that any such departure was causative of her injuries in any way.
12. In the circumstances of this case, the correct test for contributory negligence was set out by the Court of Appeal in Axiak, that is, that the reduction of damages under Division 1 of

Part 1.2 of the MAI Act by reason of contributory negligence, will be determined by assessing the extent to which a claimant departed from that standard. 13. The insurer's allegations of contributory negligence completely ignored the claimant's unchallenged evidence that she was holding onto a strap. 14. Therefore, the insurer's sole basis for alleging contributory negligence was unsupported and directly contradicted by the only evidence that can go to that issue. The onus of establishing a departure from a reasonable standard of care was not discharged. 15. Further, the insurer had adduced no evidence to establish that anything the claimant was alleged to have failed to do made any difference to the injuries she sustained. 16. The allegations of contributory negligence should be dismissed.

1. The correct test for contributory negligence in a no-fault accident claim is the test set out in Axiak, that is, I am to inquire as to how far the claimant had departed from the standard of care she was required to observe in the interests of her own safety.
2. I accept the claimant's submission that Mr Tilaye's evidence had no probative value. He was unaware or was unable to recall any incident on his bus on the day and at the time in question. Much of his evidence was conjecture and accordingly, I give it little weight.
3. I accept the claimant's evidence that, at all relevant times, she was standing sideways right at the back of the articulated bus with her left hand holding onto a strap made out of thick material that hung down from a metal bar near the ceiling that ran along the length of the bus.
4. There is no dispute that, shortly before the accident, the articulated bus on which the claimant was a passenger, left the Warringah Freeway using the Falcon Street exit ramp.
5. I accept the claimant's evidence that, there was a sweeping right hand turn from the Warringah Freeway off ramp into Falcon Street.
6. There was a dispute about the speed at which the articulated bus was travelling on the exit ramp as it made the right hand turn into Falcon Street. In her application form, the claimant stated that the bus accelerated to between 80kmph and 90kmph at the time it took the corner off the Warringah Freeway onto Falcon Street. However, in her oral evidence, she clarified that the speed of the bus at about the time of the incident referred to in her evidentiary statement was only an estimate but she knew that it was going fast, faster than 50kmph.
7. At whatever speed the articulated bus was travelling when negotiating that sweeping right hand turn, I accept the claimant's evidence that, during the course of that turn, the back of the bus unexpectedly swung one way and then the other way causing her to be thrown violently one way and then violently back the other way, leaving her dangling from the strap. I also accept her evidence that she was unable to get her left hand out of the strap immediately after the incident.
8. I reject the insurer's allegation that the claimant failed to maintain a proper hold of the strap. The claimant was holding onto a strap made out of thick material that was specifically provided for standing bus passengers. She was holding onto the strap with her left hand. She was left dangling from the strap after the incident. She did not recall whether she had her mobile telephone in her right hand. There was no evidence that she did. In any event, she was holding onto the strap prior to, during and after the incident. There was no evidence to suggest that it would have made any difference to the mechanism of the incident if the claimant had had something in her right hand.
9. I reject the insurer's allegation that the claimant failed to monitor and pay attention to the bus's movements on the basis that she regularly travelled on that bus route. I accept the claimant's evidence that she had never experienced the back of an articulated bus swing out before on that sweeping right hand turn. There was no evidence to suggest the claimant was not monitoring and paying attention to the bus's movements. Further, there was no evidence that it would have made any difference to the mechanism of the incident if she had been. The bilateral swing of the articulated bus was unexpected and violent.
10. I reject the insurer's allegation that the claimant failed to ensure that she was standing safely on a moving bus. There was no evidence that the claimant was not standing safely on the moving bus at the time of the incident. She was standing sideways right at the back of the articulated bus with her left hand holding onto a strap.
11. I reject the insurer's allegation that the claimant failed to ensure that she maintained a safe stance on a moving bus. There was no evidence that the claimant had not adopted a safe stance at the time of the incident. She was standing sideways right at the back of the articulated bus with her left hand holding onto a strap.
12. Finally, there was no evidence that had the claimant done anything differently, it would have made any difference to the mechanism of the incident or to the injuries she sustained.
13. Accordingly, I am not satisfied, for the reasons stated above, that the claimant had departed from the standard of care she was required to observe in the interests of her own safety.
14. I find that the insurer has failed to discharge its onus of proving contributory negligence on the part of the claimant.

THE NATURE AND EXTENT OF THE INJURIES AND INCAPACITY

1. In the application form the claimant described the events immediately following the motor accident as follows:

"Once the bus straightened up the pain in my lower back & right leg was a 10/10. I got off the bus at the first stop & managed to ring my partner, ... who took [sic: me] straight to Emergency at RNSH. He had to get a wheelchair to move me from the car to Emergency."[13]

1. The claimant then described her injuries as a result of the motor accident as follows:

"Acute lower back pain radiating predominantly down right leg to my foot & also radiating intermittently down my right leg. Initially I couldn't walk. Now I can slowly & painfully with a walking stick. I am also prone to falls."[14]

1. In the application form, the claimant denied that she was suffering an illness or injury affecting the same or similar parts of her body at the time of the motor accident.[15]

1. In evidence, there are written statements by the claimant dated 23 February 2020 given to the insurer's investigator (statement to the investigator)[16] and 11 November 2024 given to her legal representative (evidentiary statement).[17] She also gave oral evidence at the assessment conference.
2. I will refer to the relevant parts of her statement to the investigator, her evidentiary statement and her oral evidence.

1. In her statement to the investigator, the claimant provided a brief personal history.
2. The claimant provided a history of her employment with Bell Partners which had commenced on 1 July 2019, the day before the motor accident. She also provided the background to the termination of that employment on 1 August 2019 and the claim she had made against that legal firm in respect of her termination.
3. The claimant provided a history of her employment from October 2017 to the time she commenced with Bell Partners.
4. The claimant provided a history of the motor accident and its immediate aftermath that was consistent with the evidence.
5. The claimant disclosed her back injury on 25 April 2005.

1. In her evidentiary statement, the claimant provided a concise history of her early life.[18]
2. The claimant stated that she graduated with a Bachelor of Laws degree in March 1996 and was admitted as a legal practitioner in New South Wales in August 1996.
3. The claimant stated that she was first diagnosed with depression following the break-up of her marriage in July 2003. She was prescribed antidepressant medication and ceased taking such medication in the second half of 2006 following the finalisation of her divorce and property settlement. Despite suffering from depression, she was able to work full-time. In about March 2006, she experienced a very difficult time with her ex-husband and it was during this period that she consulted her general practitioner, Dr George Quittner, for counselling to vent her frustrations in respect of her marriage break-up and ongoing issues with her ex-husband.
4. The claimant stated that, on 25 April 2005, she boarded a flight in Bangkok and injured her lower back when lifting her carry-on luggage into the overhead locker of the aircraft. She was diagnosed with spondylolisthesis at L5/S1. She underwent a spinal fusion at L5/S1 at the end of November 2005 and was off work until early February 2006. She returned to full-time work and was often working up to 14 hours. The claimant experienced "a rough 3-4 years following the spinal fusion in terms of pain."[19] Her back issues eventually settled to the point where they no longer gave her any significant issues. She would occasionally experience minor aches during thunderstorms.
5. The claimant stated that, in April 2014, she suffered a further aggravation to her back when she was folding washing and bent down to pick up a sock. She consulted her general practitioner and was prescribed medication and referred to Dr Nathan Taylor, pain specialist. She was off work for two weeks and one week later, was made redundant. The redundancy was unrelated to her back condition. In July 2014 she underwent radiofrequency denervation at North Shore Private Hospital. At this time, she was back on her feet and her back was not worrying her.
6. The claimant stated that, in July 2014, her partner (who was bipolar) moved in to live with her and her daughter. In early April 2015, she was going through a rough time. She went to Hong Kong with her mother and daughter for a holiday. Whilst she was away, her partner had moved out of the home and went missing with one of her dogs. He was found after one week. At about this time, she also had an argument with her boss at a legal firm about being overloaded with work. She was working 12-14 hour days and was unable to get on top of her workload. One night, she overdosed on mersyndol and temazepam and was admitted to Royal North Shore Hospital. She was then transferred to Northside Clinic and remained off work for about four weeks. She was prescribed antidepressant medication, returned to

full-time work and was able to cope with her workload. 7. The claimant stated that, in March 2017, she joined another legal firm as a managing partner. She was promised a fast-track to equity in the practice within 12-18 months. The employment of a lawyer in the firm was terminated in April 2017 which resulted in her "workload being astronomical" [20]and she was regularly working 60-70 hour weeks. She also experienced difficulties with a director and partner in the business and became aware that there were financial difficulties. Further, she learnt that she had been the fifth managing partner of the firm within six months. At short notice, she was informed that an experienced commercial lawyer was taking four weeks leave at the end of July 2017. All of these matters led to her feeling that she had "hit a wall."[21] In August 2017, she again attempted suicide and overdosed on her antidepressant medication and alcohol. She was admitted to Royal North Shore Hospital for about four to five days. 8. The claimant stated that, following her discharge from Royal North Shore Hospital, she returned to full-time work but was given one month's notice of her termination in September 2017 because she was not getting on with clients. She ascertained that the commercial lawyer referred to above was to take over her role as managing partner. She and her father attended the firm's office and packed up her files and belongings. She then admitted herself to Northside Clinic where she was prescribed antidepressant medication, which she has remained on ever since. 9. The claimant stated that she incorporated her own legal practice and returned to work in October 2017 "without a hitch."[22] In March 2018, she joined Lawyers on Demand and in April 2019, she joined Dovetail Legal Solutions, where she worked part time and was sent to various in-house roles. At this time, she was not experiencing any significant psychological issues and managed to work 70 hour weeks sometimes. 10. The claimant stated that, on 21 March 2018, she consulted her general practitioner complaining of annoying back pain. She was issued with a prescription for gabapentin and referred to Dr Taylor. The following day her period started and the back pain resolved within a day or two, much to her embarrassment. 11. The claimant stated that she woke up with a locked neck on Boxing Day 2018. In late December 2018 and in 2019, she was prescribed Panadeine Forte. Whilst it took "a couple of months" to fully recover, her neck did not "hold her back."[23] 12. The claimant stated that, on 27 March 2019, Dr Mark Cross, psychiatrist, arranged her short admission to Northside Clinic. She explained that:

"My partner, ... and my daughter had been arguing relentlessly and I had been forced to cancel the sale campaign for my home after the real estate agency sent a text to all potential buyers and myself indicating that the sale price had been reduced [sic: to] $1.85 million when I had an agency agreement that stated the sale price was $2.2 million. This was done without any discussion with me."[24]

1. The claimant stated that she was discharged from Northside Clinic on 5 April 2019. On 14 April 2019, she presented to Royal North Shore Hospital with suicidal ideation. On 21 May 2019, Dr Cross arranged for another short admission to Northside Clinic and she was discharged on 7 June 2019.
2. In her evidentiary statement, the claimant provided a detailed employment history.[25]
3. The claimant stated that, after the motor accident, she was in immediate and incredible pain. Her partner picked her up from Ben Boyd Road near the corner of Military Road, Neutral Bay and drove her to Royal North Shore Hospital. She was transferred from that hospital to North Shore Private Hospital until she was discharged on 13 July 2019. On her discharge from hospital, she could barely walk. She tried to go back to work but found it impossible.
4. The claimant stated that, as a result of the motor accident, she sustained an injury to her lower back and developed a psychological disorder.
5. In her evidentiary statement, the claimant provided a detailed list of her symptoms and disabilities resulting from the motor accident.[26]
6. The claimant stated that, on 15 July 2019, she attempted to return to work at Bell Partners. She was on significant amounts of pain-relieving medication which made it difficult for her to concentrate and remember things. Over the next two weeks, she did the best she could but was struggling. Her work performance was significantly affected by her pain. On 1 August 2019, she received a text message from her employer advising that her employment had been terminated. She then started to take steps to start up her own firm again, which took about one week to 10 days. She still had some clients and was trying to retain others. She found herself struggling to get through the work and was taking too long to perform the work. She was making more mistakes than usual. She ultimately realised that she was not going to be able to continue.
7. The claimant stated that her main struggle was with her physical injuries and the effect of the pain relieving medication she was taking. The medication caused severe nausea due to her opiate intolerance. The pain fatigued her.
8. The claimant stated that, on 2 August 2019, she attended North Shore Private Hospital for radiofrequency denervation to relieve the pain in her lower back. The procedure was unsuccessful. Between about 7 August 2019 and 20 August 2019, she underwent rehabilitation at Hunters Hill Private Hospital under Associate Professor Arun Aggarwal, neurologist. At that time, she could barely walk and suffered excruciating shooting pain in her lower back and legs. In September 2019, her lower back and leg pain was so severe that she was conveyed by ambulance to the emergency department of Royal North Shore Hospital where she was given additional pain relief.
9. The claimant stated that she and her partner broke-up about two months after the motor accident (September 2019). She did not have time to give the break-up any thought and just wanted to put one foot in front of the other.
10. The claimant stated that, in September 2019, a recruiter arranged for her to have an interview with Metis Law. However, she "stuffed up the interview due to my difficulty concentrating and becoming confused."[27] At the time, she was so unwell that she did not have time to think about her psychological issues. In late September 2019, she contacted her mortgagee seeking financial hardship assistance because she was unable to pay the mortgage on her home.
11. The claimant stated that, at the end of 2019, she listed her home for sale because she had no money to pay the mortgage, household bills, groceries and other expenses. The home eventually sold on 14 February 2020 and settled on 27 March 2020. Her mental health really took a turn for the worse during March 2020. She was devastated at the loss of her home and experienced regular nightmares about the motor accident. She and her daughter moved into a rental property.
12. The claimant stated that, in early February 2020, she was implanted with a trial spinal cord stimulator for pain relief by Dr Taylor. The trial was successful and a permanent spinal cord stimulator was implanted on 24 February 2020. During the next few months, she experienced some pain free periods.
13. As she was feeling physically better, the claimant stated that, on 23 March 2020, she commenced a casual contract organised by a recruiter with the Onsite Rental Group as a senior lawyer. The contract finished in early May 2020.
14. The claimant stated that by mid-April 2020, her back and leg pain was slowly getting worse, leaving her constantly fatigued. She also noticed pain in her hands that caused her difficulties typing. The pain in her hands lessened each time her spinal cord stimulator was reprogrammed.
15. The claimant stated that, on 20 July 2020, she had a massive flare-up of pain and was shaking uncontrollably. Her daughter drove her to Royal North Shore Hospital where she was admitted into a ward. Dr Taylor attended and arranged for her spinal cord stimulator to be turned off for a day or two as he believed that the shaking had been caused by it. Once the spinal cord stimulator was reset, shaking lessened considerably. On 29 July 2020, she was transferred to Hunters Hill Private Hospital for rehabilitation and was discharged on 12 August 2020.
16. The claimant stated that, in about August 2020, she started experiencing pain in her right elbow and right ring and little fingers. In December 2020, she began consulting Dr Vanessa Sammons, neurosurgeon, for those symptoms. On 23 December 2020, Dr Sammons performed a right ulnar nerve decompression, which was unsuccessful as the pain in her right elbow, right ring and little finger continued.
17. The claimant stated that, on 11 March 2021, she experienced another massive flare-up of pain in her lower back and legs as well as a loss of bowel and bladder control. She presented to Royal North Shore Hospital, where she was admitted. On 18 March 2021, she was transferred to North Shore Private Hospital and was discharged on 2 April 2021. At that time, she was on about 17 different medications for her pain and mental health. Dr Taylor and Dr John Parratt, neurologist, indicated that the loss of bowel control was caused particularly by the amount of pain-relieving medication she was taking.
18. After her discharge from North Shore Private Hospital, the claimant stated that she was struggling to function. She was very confused and not coping very well and so, on 15 April 2021, she was admitted to Northside Clinic until 14 May 2021. During the period of her admission, her intake of gabapentin was reduced and she found that her ability to function had improved and that she was less confused.
19. The claimant stated that, on 2 July 2021, she again consulted Associate Professor Aggarwal because she continued to experience mild shaking in her hands that became worse when stressed or upset. Associate Professor Aggarwal performed a nerve conduction study that determined her right ulnar nerve was still compressed.
20. The claimant stated that, on 8 September 2021, she underwent a right ulnar nerve transposition by Dr Sammons.
21. The claimant stated that, on 12 October 2021, she underwent a lignocaine infusion for pain relief at North Shore Private Hospital. During the course of this admission, she was diagnosed with sciatic neuritis and piriformis inflammation in her right leg. The lignocaine infusion was cut short and she was discharged from hospital on 15 October 2021. On 21 October 2021, she returned to North Shore Private Hospital for treatment of the neuritis and piriformis inflammation and was administered intravenous antibiotics until 28 October 2021. In November 2021, she was diagnosed with hypogammaglobulinemia by Dr Parratt.
22. The claimant stated that, in December 2021, she was referred to the anorectal biofeedback clinic at Royal North Shore Hospital in respect of the issues with her bowel control. By January 2022, her bowel control had improved by about 50% and such improvement has been maintained to date.
23. The claimant stated that, on 26 April 2022, she was admitted to North Shore Private Hospital for a lignocaine infusion to reduce pain and was discharged on 1 May 2022. She continued to struggle with depression and anxiety.
24. The claimant stated that, on 25 July 2022, she was admitted to Northside Clinic for treatment of depression and anxiety. Dr Raj Choudhary was her treating psychiatrist. She was discharged on 12 August 2022.
25. The claimant stated that, in early September 2022, she noticed a strange bruise on her left ankle and consulted a general practitioner. She underwent an ultrasound that showed a large blood clot in her left calf. On 6 September 2022, she was feeling unwell, lethargic, short of breath and sweating and was admitted to Royal North Shore Hospital. She was diagnosed with a right leg deep vein thrombosis and pulmonary clots. She was discharged on 8 September 2022 on blood thinning medication.
26. On 4 October 2022, she stated that she was admitted to North Shore Private Hospital under Dr Taylor for a ketamine infusion for the purpose of pain reduction and for the purpose of reducing the amount of pain-relieving medication she was taking. She was discharged on 11 October 2022.
27. The claimant stated that, on 7 November 2022, she commenced attending the ADAPT program at Royal North Shore Hospital for people living with chronic pain. The program was scheduled to run until 25 November 2022. However, the program content took a toll on her both physically and mentally and she missed the last four days of the program due to lack of bowel control, fatigue and exhaustion. Her mental health continued to decline further and further. She gave up any hope that she would be able to return to work as a lawyer.
28. The claimant stated that, on 10 February 2023, she stepped off a gutter onto the road when her right ankle gave way causing her to fall backwards and sprain her left ankle and right wrist.
29. Between 20 March 2023 and 26 March 2023, the claimant stated that she was admitted to North Shore Private Hospital for another ketamine infusion and that between 17 July 2023 and 19 July 2023 she was admitted to the same hospital for a steroid infusion.
30. The claimant stated that, on 28 July 2023, she took an overdose of Palexia SR 50mg tablets and was admitted to Royal North Shore Hospital until 31 July 2023. She was then admitted to Northside Clinic from 1 August 2023 to 1 September 2023.
31. Between 20 November 2023 and 26 November 2023, the claimant stated that she was admitted to North Shore Private Hospital for another ketamine infusion. Between 17 January 2024 and 19 January 2024, she was admitted to North Shore Private Hospital for a steroid infusion.
32. The claimant stated that, in May 2024, she was diagnosed with high blood pressure and prescribed blood pressure medication.
33. The claimant stated that, over the past four to five months, she had been experiencing more and more back and leg pain. She was prescribed Norspan patches which caused nausea. There were times when she spent the day throwing up.
34. The claimant stated that, following the motor accident, she received payments of weekly benefits from the insurer until September 2022. After those payments ceased, she supported herself from her superannuation account benefits until 26 March 2024 when the balance fell below $7,000. She applied for a Centrelink disability support pension and whilst her application was being processed, she received a Centrelink job seeker allowance until her disability support pension was approved on 3 September 2024.
35. In respect of her plans for retirement, the claimant stated:

"In the absence of injuries I sustained in the motor accident, it had been my intention to work full-time until I reached the age of 70 years, and then to work part-time for a further 5 to 10 years."[28]

1. An outline of the claimant's oral evidence in response to questioning by her counsel, Ms Gumbert, is set out below.
2. The claimant stated that her lower back was "good" in the year prior to the motor accident. She could not recall whether she consulted doctors or took medication for her lower back during that period. Prior to the motor accident she had "more or less zero pain."
3. Sometimes she had "a bit of a backache" when there was a thunderstorm. It was a dull ache which would go away by the time the storm hit. Those backaches would last half an hour. She received no treatment. The pain was like period pain.
4. A few days before the motor accident she was feeling positive because she was about to start a new job. She was looking forward to it. It was familiar work. "It was great."
5. Immediately after the motor accident, she was in absolute agony. She rated the pain in her lower back and legs, especially the right leg, as 10/10 on a visual analogue scale.
6. She now experiences a continual high level of pain in her lower back. It is like her back is in a vice with crushing and burning pain. The pain goes down her right leg and she rates it as currently being 8/10 on a visual analogue scale.
7. At 6.30am on the morning of the assessment conference, she applied a Norspan 5mg patch and took two Temgesic tablets and two gabapentin tablets.
8. An outline of the claimant's oral evidence in response to questioning by Mr Kelleher SC for the insurer is set out below.
9. The claimant was taken to various parts of her evidentiary statement pre-dating the motor accident and then, to related parts of the clinical records in evidence. In some instances, she could not recall the attendances and/or the contents of the entries referred to and in others, she conceded the contents of the entries she was referred to. In relation to the contents of those entries that she was unable to recollect or were inconsistent with her evidence, she stated that she did not have access to her clinical records when she gave her evidentiary statement.
10. When it was put to the claimant that she was being misleading, she denied it and said:

"If I did have back pain from time to time (after 21 March 2018), at best, I would describe it as being annoying."

1. The claimant denied having to be careful with her back prior to the motor accident and repeated that her back pain before the accident was an annoying pain.
2. An outline of the claimant's oral evidence in response to further questioning by Ms Gumbert is set out below.
3. The claimant stated that her memory is "shocking" and that gabapentin and pain medication affect her memory. She became very confused when she read through the large volume of material in evidence. At the time of giving her evidentiary statement, she did not have access to her clinical records.
4. The claimant stated that there was no criticism of her work whilst she was employed by Bell Partners.

1. The nature of this claim requires a detailed analysis of the medical evidence prior to and following the motor accident.

1. On 12 September 2003, the claimant consulted Dr George Quittner, general practitioner, of Avenue Road Medical Practice. They discussed her marital problems at length. Dr Quittner noted that the claimant had separated two months earlier but that she had been at loggerheads with her husband for the past six months. She had lost 6kg in weight. Dr Quittner diagnosed her with depression, provided general advice in respect of a healthy lifestyle, prescribed one Stilnox 10mg tablet nightly and referred her to Ms Jean Pollock for counselling.[29]
2. On 27 September 2003, the claimant consulted Dr Rowley, general practitioner, of Avenue Road Medical Practice. Dr Rowley noted that patient support was provided, prescribed Zoloft and provided her with the contact number for Northside Clinic. Dr Rowley also noted that she was depressed and stressed out; that she could not afford the cost of a psychologist; and that she had never taken antidepressants.[30]
3. On 29 September 2003, Dr Rowley noted that the claimant had telephoned to advise that she was to attend the Northside Clinic and had an appointment to consult Dr Prem Naidoo, psychiatrist, at that clinic on 3 October 2003.[31]
4. On 18 December 2003, the claimant consulted Dr Quittner in respect of a medical condition unrelated to these proceedings. Dr Quittner noted that the claimant stated she was "not keen on Dr Naidoo" and that he would be her "amateur shrink/psychologist." Zoloft was ceased and he prescribed her one Stilnox 1mg tablet nightly and urged her to exercise.[32]
5. Between 6 January 2004 and 25 April 2005, there were numerous entries recorded in the Avenue Road Medical Practice in relation to the claimant's ongoing marital dispute and related court proceedings, stressors, depression and insomnia. During that period, she medicated with various antidepressants (Aurorix, Avanza and Zoloft), Imovane, Normison and Stilnox (for her sleep disturbance).[33]
6. On 25 April 2005, the claimant consulted Dr Quittner and reported severe low back pain radiating down the right leg which began after lifting heavy bags on her way back from Bangkok. She reported having similar pains in the past but not as severe. Dr Quittner diagnosed her with mechanical back pain and prescribed Panadeine Forte 500mg/30mg tablets and Ducene 5mg tablets.[34]
7. On 9 May 2005, the claimant consulted Dr Quittner complaining of low central back pain that was worse in the morning and radiated down her leg to her right foot. The right sole of her foot felt bruised and there was tingling in her foot. Weight-bearing made the pain worse. Dr Quittner referred her for a CT scan of her lumbar spine and prescribed Mersyndol Forte 450mg/30mg/5mg tablets.[35]
8. On 11 May 2005, the claimant underwent a CT scan of her lumbar spine which demonstrated no focal disc herniation, L5 defects with chronic L5/S1 spondylolisthesis and bilateral L5/S1 foraminal narrowing.
9. On 31 May 2005, Dr Quittner referred the claimant to Dr Jean-Pierre Halpern, consultant neurologist.[36]
10. On 16 June 2005, the claimant consulted Dr Halpern who referred her for a lumbar spine MRI scan and recommended she undergo bilateral facet joint injections and a right periradicular injection and agreed to her being referred to Dr Andrew Kam, neurosurgeon and spinal surgeon.
11. On 19 June 2005, the claimant underwent a lumbar spine MRI scan that demonstrated a grade II spondylolisthesis at the lumbosacral junction with right foraminal stenosis.
12. On 20 June 2005, the claimant underwent the CT guided injections recommended by Dr Halpern.
13. On 28 June 2005, Dr Halpern reported to Dr Quittner that the claimant had experienced a degree of relief from the right lateral recess L5/S1 epidural injection and bilateral L5/S1 facet joint injection. There was likely to be continued improvement over the following two to three weeks. He made no arrangements for the claimant to consult him again.[37]
14. On 4 August 2005, the claimant consulted Dr Kam on the referral of Dr Halpern. He took a history of the claimant's injury on an aircraft on 25 April 2005. The claimant complained of ongoing lower back and leg symptoms and that she had not been able to return to her normal activities and lifestyle. He reviewed her lumbar MRI scan and opined that it revealed the presence of a grade I spondylolisthesis involving the L5/S1 level resulting in quite severe foraminal stenosis at the right L5/S1 level secondary to a pars interarticularis defect. Dr Kam noted that the claimant had recently undergone a right-sided L5/S1 cortisone injection with partial relief. He recommended that she proceed with a second course of injections to try and improve her symptoms further. However, if she continued to suffer from recurring pain, surgery to reconstruct the spondylolisthesis should be contemplated.[38]
15. On 25 August 2005, the claimant underwent a repeat CT guided interlaminar epidural injection at L5/S1 on the right side and bilateral L5 pars blocks as recommended by Dr Kam.[39]
16. On 10 October 2005, the claimant underwent a CT guided right L5/S1 periradicular injection; a right L5/S1 pars block; and due to some left-sided symptoms, a left L5/S1 periradicular injection and pars block.
17. On 1 November 2005, Dr Kam reported to Dr Quittner that the claimant had failed all conservative treatment despite having undergone three cortisone injections. He noted that she was not coping very well with her pain and it was now affecting her ability to look after her young daughter. The claimant wished to proceed with surgery and so, Dr Kam intended to seek approval from the relevant insurer.[40]
18. On 30 November 2005, the claimant underwent a posterior lumbar interbody fusion and pedicle screw fixation involving the L5/S1 level by Dr Kam. She made an uneventful recovery.[41]
19. On her first post-operative visit to Dr Kam on 19 January 2006, the claimant advised that the surgery had significantly improved her symptoms and that she was ambulating without any need of analgesia. Dr Kam recommended a gradual return to normal lifestyle and work.[42]
20. On 17 March 2006, the claimant consulted Dr J Telfer, senior staff specialist in psychiatry at the Cremorne Community Health Centre, on the referral of Dr Quittner. Dr Telfer noted that the claimant had many stressors, especially, impending legal proceedings recently initiated by her estranged husband against a background of an acrimonious marital breakdown and a dispute over their daughter. Dr Telfer also noted that the claimant had suffered from dysthymia and anxiety fluctuating in intensity for several years that had not been relieved by various antidepressants. She suffered from insomnia for which she took Stilnox or drank up to a bottle of wine at night. She had not experienced suicidal ideas. The current situation and past history was marked by many adversities but Dr Telfer concluded that the claimant would cope with them better if she did not consume any alcohol and if she could take an effective antidepressant. Dr Telfer prescribed escitalopram 20mg to be augmented by olanzapine 1.25mg.[43]
21. On 23 March 2006, the claimant consulted Dr Kam reporting good results following the surgery and that she had been able to return to work almost full time. He noted that she was still quite stiff and tender around the paraspinal muscles adjacent to the incision. She underwent a plain X-ray of the lumbar spine (21 March 2006) that demonstrated the implants were in good position.[44]
22. On 7 September 2006, the claimant consulted Dr Kam reporting that shortly prior to the consultation, she developed increasing intense symptoms in her right leg. A repeat X-ray of her lumbar spine (5 September 2006) showed the implants to be in good position and the bone fusion across the interbody space had healed almost completely. He suggested that the claimant commence an exercise program to strengthen her lower back muscles as well as her abdominal muscles to try and "improve her work commitment."[45] Dr Kam advised the claimant to undergo a CT scan of her lumbar spine if she experienced any further problems.[46]
23. The last entry recorded in the claimant's Avenue Road Medical Practice clinical records was dated 7 January 2008.[47]
24. On 15 June 2009, the claimant consulted Dr Newman Harris, specialist in pain medicine and consultant psychiatrist, on the referral of Dr Susan Ridley, general practitioner, of Crows Nest Medical Practice. Dr Harris noted that, following the surgery to the claimant's lumbar spine by Dr Kam, her pain had reduced and she could do much more but had since developed sciatica on the right side which travelled down the lateral aspect of her right leg to the knee. The leg pain had a burning and throbbing quality. The claimant was not sleeping well. Dr Harris noted that the claimant's pain management was, essentially, passive. She did little exercise. She took six to eight tablets of digesic and tramadol per day. She consulted Ms Amanda Ferguson, psychologist, on a regular basis but it did not seem that the claimant put into practice the basic psycho-behavioural principles of pain management. Dr Harris opined that the first goal was to improve the claimant's sleep and ensure a review by Dr Kam.[48]
25. On 23 July 2009, the claimant consulted Dr Kam on the referral of Dr Ridley. Dr Kam noted that, over the last three years, the claimant's symptoms of right-sided leg pain and back pain had gradually increased in intensity and frequency. She was quite reliant on the use of Endep which caused her to gain almost 30kg in weight. Prior to the consultation, Dr Kam had arranged a number of investigations. The lumbar spine CT scan, MRI scan and plain X-rays showed the implants to be in good position with no evidence of movement or loosening. There were no new degenerative changes. The only positive finding was a positive bone scan in respect of the L4/5 facet joints bilaterally. However, this did not explain her severe right-sided leg symptoms. He recommended she undergo a bilateral L4/5 facet joint injection to ascertain whether there was a facet joint component to her current symptoms.[49]
26. On 28 July 2009, the claimant underwent a CT guided bilateral L4/5 facet joint injection.[50]
27. On 21 October 2009, the claimant consulted Dr Charles Brooker, senior staff specialist, at the Pain Management and Research Centre on the referral of Dr Harris. Dr Brooker noted that the claimant had abandoned several medications due to side-effects, namely, Lyrica causing hyperactivity; Endep causing weight gain; and OxyContin causing nausea. He observed that the claimant had low back pain and bilateral lower limb pain with a background of spinal fusion surgery for spondylolisthesis at L5/S1. He thought she may get some analgesia from medial branch blocks and subsequent radiofrequency. He indicated that the chance of the diagnostic blocks being positive was quite low because of her previous failure to respond to facet joint injections. He recommended that she consider entering the centre's ADAPT program.[51]
28. On 8 December 2009, the claimant attended the Pain Management and Research Centre for the medial branch blocks recommended by Dr Brooker. Dr Brooker noted that the claimant got good relief on the left side and little relief on the right. He tried to provoke pain by forward flexion and then left-sided pain was not significant but forward flexion was reduced to its normal level by right-sided pain. He opined that further diagnostic blocks would be just as confusing and suggested radiofrequency treatment.[52]
29. On 15 April 2014, the claimant consulted Dr Diana Merhi, general practitioner, of The Mosman Practice reporting that, on Sunday night, she was folding washing, bent down to pick up a sock and felt severe right sided lower back pain running down her right leg. Dr Merhi prescribed one temazepam 10mg tablet daily and referred her to a specialist.[53]
30. On 7 May 2014, the claimant consulted Dr Jonathan Ball, neurosurgeon and spinal surgeon, reporting the onset of severe pain as she bent and twisted to pick something up. She described the pain as extending through her buttock down the side of her right thigh and calf with some numbness and paraesthesia in the outside of the foot and some painful sensation on the sole of her foot. Dr Ball reviewed recent lumbar CT and MRI scans that demonstrated the presence of a fusion at the L5/S1 level; solid bony bridging at that level; no evidence of any hardware failure; no evidence of any recurrent residual compression of the nerves at that level; the L4/5 disc appeared relatively preserved; there were degenerative changes in the L2/3 and L3/4 discs; there were some small disc bulges presented at these levels but no significant nerve root compression in the canal or exit foramen. Dr Ball opined that it may be that she had degenerative changes above her previous fusion that could be giving her referred pain down her leg. He recommended bilateral facet joint injections at the L4/5 level as well as a nuclear medicine bone scan to look for any other possible source of pain.[54]
31. On 11 June 2014, the claimant consulted Dr Taylor on the referral of Dr Merhi. Dr Taylor noted that the claimant suffered back problems that dated back to an injury in April 2005, when she was moving luggage above her head on an aircraft. She had a sudden onset of back and left leg pain and was subsequently reviewed by Dr Kam, who performed an L5/S1 decompression and fusion. Although this relieved her symptoms tremendously, she still did suffer with some low back pain over the years. She was reviewed by Dr Brooker and underwent radiofrequency denervation with quite a good result. She had managed quite well over the years until Easter, when she had a severe onset of right-sided low back and leg pain. She was referred to Dr Ball, who commented that there was no significant nerve root impingement and he referred her for a facet joint injection and to have a SPECT scan. Dr Taylor observed that the SPECT scan demonstrated mild uptake around the L5 pedicle screw but no significant facet joint or discogenic uptake.[55]
32. Dr Taylor opined that the claimant presented with what appeared to be axial low back pain with possible axial referred pain extending down the leg. He observed that it was uncommon for the pain to extend so far down the leg but there was no obvious nerve root impingement at the L5 to account for her symptoms. He recommended diagnostic medial branch blocks to the right L4/5 facet joint with a view to radiofrequency denervation. He also strongly recommended follow-up with a pain specialist physiotherapist to work on graded activity pacing.[56]
33. On 29 July 2014, the claimant underwent diagnostic medial branch blocks to the right L4/5 facet joint. On 8 August 2014, she underwent radiofrequency denervation.
34. In evidence, are the claimant's clinical records provided by Synergy Medical Practice.[57] The first consultation entry in the clinical records is dated 7 December 2006 and the last entry is dated 13 August 2014. The last entry in the clinical records relating to the claimant's lower back condition was dated 22 May 2014.
35. In evidence, are the claimant's clinical records provided by Crows Nest Medical Practice.[58] The first consultation entry in the clinical records is dated 7 December 2006 and the last entry is dated 16 March 2012.
36. In evidence, are the claimant's clinical records provided by The Mosman Practice.[59] The first consultation entry in the clinical records is dated 25 August 1999 and the last entry is dated 14 March 2024. There were no entries in the clinical records referring to complaints of back pain by the claimant in 2015, 2016, 2017 or 2019 until the time of the motor accident. There were two entries in the clinical records in 2018 referring to complaints of back pain by the claimant. Particulars of those entries are referred to below.
37. On 21 March 2018, the claimant consulted Dr Ratna Neville, general practitioner. The entry in the clinical records of The Mosman Practice recorded the claimant's complaint of lower back pain and pain down the side of the right leg but not into the toes. Passing of urine was normal as were the bowels. Dr Neville noted that the claimant had undergone a fusion at L5/S1 and experienced a flare-up every few years. Dr Neville noted that she had attended the pain clinic in the past. The claimant was prescribed two gabapentin 100mg capsules three times per day and issued a referral to Dr Taylor.[60] This entry in the clinical records coincided with the claimant's evidence referred to in [97] above wherein she stated that the back pain resolved within a day or two, which was consistent with the next complaint of back pain not being recorded until 11 September 2018 despite numerous medical attendances at the medical practice in between.
38. On 19 September 2018, the claimant consulted Dr Linda Harris, general practitioner. The entry in the clinical records of The Mosman Practice noted current back pain with the change of weather, the history of a spinal fusion at L5/S1 and that the claimant occasionally experienced low back pain. Dr Harris noted that the claimant had been taking ibuprofen 400mg three to four times per day over the past few days and that it was not helping. The claimant requested a prescription for Mersyndol Forte. Dr Harris prescribed two gabapentin 100mg capsules three times per day and two Mersyndol Forte 450mg, 30mg, 5mg tablets four times per day as well as antidepressant medications.[61]
39. It was apparent from The Mosman Practice clinical records that the claimant was also taking Mersyndol Forte and Imigran for her migraines.
40. The claimant's psychiatric history that had commenced in about 2003 continued right up to the date of the motor accident. There was no dispute in this regard.
41. On 17 April 2015, the claimant was admitted to Royal North Shore Hospital following an intentional overdose of Mersyndol Forte and Normison. The claimant felt she had been in a black hole for six months and had been suicidal since Christmas 2014. She had no support network and was voluntarily admitted in the context of being made redundant in April 2014, damaging her spinal fusion at about the same time (April 2014), bullying claims in the workplace, recent relationship breakdown and the financial stress of starting her own business.[62]
42. On 20 April 2015, the claimant was admitted to Northside Clinic and came under the care of Dr Choudhary and was discharged on 8 May 2015.[63]
43. On 20 August 2017, the claimant was admitted to Royal North Shore Hospital following an overdose of Quetiapine for which she immediately sought help on a background of worsening depressive symptoms in the context of psychosocial stressors and medication non-adherence.[64]
44. On 31 August 2017, Dr Dillon Cheah, consultant psychiatrist, provided a report to Dr Nichola Dunn of The Mosman Practice.[65] Dr Cheah opined as follows:

"In my view [the claimant] has been suffering from a Major Depressive Disorder with Associated Anxiety. She has a very strong family history for depression indicating a key biological vulnerability to developing the same. [The claimant] has had a complicated relationship with her father and has sustained severe bullying as a young child both of which I feel I [sic] has contributed to a hindrance in her psychological development and affected the development of her self-worth. She also experienced pronounced interpersonal difficulties in her first marriage that appeared to play on her insecurities. [The claimant] has experienced a great deal of stress in recent years in her career; with workplace bullying, a redundancy and ongoing intense workplace stress that appear to be the major precipitants to this episode of depression. I feel she has prominent Cluster C personality features."[66]

1. On 25 September 2017, the claimant consulted Dr Cheah advising that her employment had been suddenly terminated because a number of clients allegedly refused to work with her. Dr Cheah noted that her mood had plummeted and recommended that the claimant be admitted as an inpatient at Northside Clinic to support her through the current crisis where clinic staff could be more responsive and address treatment goals more rapidly.[67]
2. On 29 September 2017, the claimant was admitted to Northside Clinic under the care of Dr Cross. The Northside Clinic medical admission form noted that the claimant had been in a stressful job since March 2017; was overworked; did not get on with a co-worker who was incompetent; had problems with clients; and had her employment terminated. The form also noted that the claimant had been in a low mood since mid-July after a sinus infection and had been unable to get on top of her work. Memory and concentration were gradually getting worse and she experienced poor sleep. The claimant was discharged from Northside Clinic on 27 October 2017.[68]
3. On 31 January 2018, the claimant consulted Dr Cross reporting nausea, vomiting and migraine issues. They spoke about how to best manage her sleep and anxiety. She reported feeling somewhat flat with some panic attacks over the Christmas period. The plan was for her to recommence walking her dogs and attending the gym and to reduce her Seroquel intake to 50mg.[69]
4. On 30 January 2019, Mr Mitchell Howarth, psychologist, reported to Dr Cross that he had been working together with the claimant since 2017. The focus of their work had been on mood management and specifically, anxiety management skills. They had discussed ways for her to improve and stabilise her mood. The present focus was on the stress management in the context of work stressors.[70]
5. On 27 March 2019, Dr Cross reported to Dr Neville that things were not going well for the claimant. A job had ended early and she had nothing to go to in its place. She had attended many interviews for employment without success. Her house was on the market and there was tension at home. She was not sleeping well and was using increased doses of Diazepam and Propranolol. He arranged for her to be admitted to Northside Clinic to reintroduce Seroquel and give her a break from her issues.[71]
6. On 28 March 2019, the claimant was admitted to Northside Clinic and was discharged on 5 April 2019.[72]
7. On 17 April 2019, the claimant consulted Mr Howarth, who provided a report to Dr Cross updating the claimant's progress in a report dated 29 July 2019. He confirmed that the claimant had presented to him for treatment of low mood and anxiety. He implemented cognitive behavioural therapy. He confirmed that they had been working together since September 2017 and that, since that time, the claimant's symptoms had fluctuated. At their last consultation, they discussed the possible benefit of the claimant consulting another psychologist as there had been a steady decline in her well-being across time that did not seem to be responding to the intervention he was providing. The claimant agreed that transferring to another psychologist was worth trialling. They were to discuss the handover at the scheduled session on 1 May 2019, but the claimant cancelled that appointment and he had not heard from her since. Accordingly, he closed his file.[73]
8. On 12 May 2019, the claimant presented to Royal North Shore Hospital with suicidal ideation and increased anxiety in the context of alcohol intoxication. The hospital's clinical records recorded a similar list of stressors to those provided to Dr Cross on 27 March 2019.[74]
9. On 21 May 2019, the claimant was admitted to Northside Clinic. The clinic's medical admission form indicated that the claimant's anxiety had increased over the past month and that she was experiencing almost daily panic attacks, felt very shaky and experienced palpitations and perspiration. She was discharged on 7 June 2019.[75]

1. On 2 July 2019, the claimant presented to Royal North Shore Hospital. The hospital's clinical records noted that the claimant had twisted whilst standing up on a bus which caused the onset of acute lumbar back pain with burning pain and pins and needles radiating down the posterior thigh on the right side and an inability to bear weight with her right foot. The spinal fusion for L5/S1 spondylosis 14 years earlier was noted, as were intermittent flare ups thereafter. It was noted that it was different with this episode. She had undergone radiofrequency a few years ago and had no issues with walking since the radiofrequency. She had been on gabapentin long-term and recently changed to Topamax. She was not often woken up by back pain. She was known to have right mild foot drop. The claimant was referred for an MRI scan of the lumbar spine to look for changes from her spinal surgery or any other spinal pathology and was also referred for physiotherapy.[76] The claimant was discharged from Royal North Shore Hospital on 5 July 2019.
2. The claimant was transferred to North Shore Private Hospital on 5 July 2019 and was discharged on 13 July 2019.
3. On 13 July 2019, the claimant consulted Dr Philip Greenfield, general practitioner, of The Mosman Practice advising that she had sustained an acute back strain 10 days earlier. She had been admitted to North Shore Private Hospital until she was discharged earlier that day. Dr Greenfield noted that she was on Panadeine Forte and Palexia and issued a medical certificate at her request to return to work in two days' time.[77]
4. On 16 July 2019, the claimant consulted Dr Dunn reporting that she had twisted her back on a bus three weeks ago and had spent 12 nights in hospital. Dr Rodger Laurent, rheumatologist, had administered a steroid injection. Dr Dunn referred the claimant to Dr Taylor and Dr Laurent. She prescribed two Panadeine Forte 500mg, 30mg tablets four times per day and one Tapentadol 100mg tablet twice per day. She ceased gabapentin.[78]
5. On 19 July 2019, the claimant consulted Dr Felicity Bidencope, general practitioner, of The Mosman Practice advising that she was now able to walk on her right leg, albeit in pain. Dr Bidencope requested Dr Nunn to expedite an appointment for the claimant with a pain clinic. She prescribed two Panadeine Forte 500mg, 30mg tablets four times per day.[79]
6. On 23 July 2019, Dr Laurent reported to The Mosman Practice that the claimant was a recent inpatient (Royal North Shore Hospital) for acute onset lower back pain, predominantly in the L4/5 region. There were also associated neurological symptoms including sensory impairment at the back of her calf muscle and probable mild weakness of dorsal and plantar flexion of the foot. Reflexes could not be elicited. MRI and CT scans of the lumbosacral spine indicated that the spinal fusion was stable and that there was mild degenerative change at the L4/5 level including the facet joint. A foraminal injection at the left L4/5 level did not improve leg pain although, injection of both L4/5 facet joints did result in some improvement.[80]
7. On 2 August 2019, Dr Taylor reported that the claimant was tender just above the spinal fusion and described pain extending down the back of the leg and under the foot, which was more neuropathic in nature. There was no neurological deficit. She was managing the pain with Palexia and Panadeine Forte. Dr Taylor decided to repeat the radiofrequency denervation and would combine this with a caudal epidural steroid injection that he hoped would impact the S1 nerve roots and reduce leg symptoms. He also planned on reducing her analgesia and upgrading her physical tolerances.[81]
8. On 2 August 2019, the claimant underwent radiofrequency denervation to L4/5 bilaterally and a caudal epidural steroid injection.[82]
9. On 5 August 2019, the claimant consulted Dr Bidencope advising that she had undergone a bilateral radiofrequency procedure and steroid injection on the previous Friday. The claimant advised that there had been no improvement so far. Dr Bidencope queried whether the claimant would benefit from a more structured inpatient rehabilitation program and issued a referral to Hunters Hill Private Hospital. She prescribed Panadeine Forte 500mg, 30mg per day. [83]
10. On 7 August 2019, the claimant was admitted to Hunters Hill Private Hospital under the care of Associate Professor Aggarwal. The hospital's discharge summary noted that the principal diagnosis was lumbar spondylosis. There was radiating L4/5 pain with sensory impairment and weakness of dorsi flexion. The claimant experienced a sudden flare-up of pain whilst travelling on a bus and was admitted to Royal North Shore Hospital. Treatment had involved steroid injections and radiofrequency neurolysis. The claimant also had secondary diagnoses of depression and anxiety as well as migraine. The claimant's mobility was limited by shooting, excruciating pain. She was gradually activated in the gym and slowly progressed. She was advised to avoid twisting movements and required increased amounts of analgesia. Issues of pain were addressed by increasing Fentanyl. The claimant was referred back to her general practitioner for further pain management.[84]
11. On 27 August 2019, the claimant consulted Dr Warren Lee, general practitioner, of The Mosman Practice complaining of ongoing lower back pain with some L4/5 radicular pain ever since twisting her back on a bus in early July 2019. It was noted that the claimant had been admitted to Hunters Hill Private Hospital for rehabilitation and that she was under the care of Dr Taylor and Associate Professor Aggarwal. She was also having physiotherapy. Dr Lee prescribed one to two Palexia IR 50mg tablets four times per day and one to two Panadeine Forte 500mg, 30mg tablets per day.[85]
12. On 2 September 2019, the claimant consulted Dr Bidencope for the purpose of completing the relevant compulsory third-party form. Dr Bidencope prescribed an increased strength of Fentanyl patches from 12mcg/hr to 25mcg/hr (one patch twice per week). She also prescribed one to two Palexia IR 50mg tablets four times per day.[86] The Fentanyl patches were ceased on 12 September 2019 due them causing the claimant severe nausea.[87]
13. On 13 September 2019, Dr Taylor reported that the claimant continued to struggle with lower back and leg pain. She had the expected post procedure flare-up following ablation but the pain continued this time. She remained on Palexia but felt that this was causing significant cognitive impairment. Despite the ongoing pain, the claimant made physical progress through a rehabilitation program at Hunters Hill Private Hospital.[88]
14. On 17 September 2019, Dr Laurent reported that the claimant continued to be troubled by lower back pain after having undergone two weeks of inpatient rehabilitation at Hunters Hill Private Hospital. She was now attending two days per week as a rehabilitation outpatient. She had commenced cannabinoid oil which she thought had helped and trialled a Fentanyl patch but the latter gave her significant side-effects. The pain was in the lower back and radiated down the right leg to the sole of the foot. There was also some pain down the left leg to the knee and occasionally, to the ankle. Dr Laurent encouraged the claimant to try to increase exercise so that her medication could be reduced.[89]
15. On 23 September 2019, the claimant was taken by ambulance to Royal North Shore Hospital with an acute flare-up of back pain. She had been walking in an Ikea store when the onset of back pain occurred. There had been a possible twisting movement. She had left-sided flank pain around the hip down the back of the leg into the knee together with tingling in the left foot. The pain did not settle with multiple medications. The claimant was discharged on 24 September 2019.[90]
16. On 14 October 2019, the claimant consulted Dr Bidencope advising that Dr Taylor had booked her in for another injection in early November 2019 and that she had an appointment with Dr Richard Parkinson, neurosurgeon, on Wednesday. It was noted that the claimant was using cannabinoid oil as instructed by one of the clinics and it had really improved her pain.[91]
17. On 16 October 2019, the claimant consulted Dr Parkinson who noted dramatically worsened back pain and bilateral lower limb pain after a twisting injury of her back whilst on a bus ride on 2 July 2019 on a background history of an L5/S1 posterior fusion performed by Dr Kam in 2005. He noted that the claimant had recently been admitted to Royal North Shore Hospital for pain control, cortisone injection and radiofrequency ablation. She described pain in the lower back that felt like it was in a vice and a crushing burning pain with a burning sciatica on the right buttock radiating into the hamstring, calf and lateral foot. Dr Parkinson recommended an interlaminar epidural at L4/5 with bilateral facet injections, a CT scan to assess the integrity of the fusion and a bone scan to rule out a stress fracture.[92]
18. On 17 October 2019, the claimant underwent a CT scan of her lumbar spine that demonstrated no complications post L5/S1 fusion and disc prosthesis.[93]
19. On 18 October 2019, the claimant underwent CT guided bilateral L4/5 facet joint injections and a CT guided L4/5 interlaminar injection on the referral of Dr Parkinson.[94]
20. On 19 October 2019, the claimant consulted Dr Bidencope advising that she had recently consulted Dr Parkinson and undergone injections in her back.[95]
21. On 23 October 2019, the claimant consulted Dr Nunn advising that she had consulted Dr Parkinson on 16 October 2019 and had injections which had helped.[96]
22. On 7 November 2019, the claimant underwent a bone scan with SPECT CT of the lumbar spine and pelvis on the referral of Dr Parkinson. The bone scan demonstrated left L4/5 facet joint arthritis and minimal bony reaction adjacent to the posterior superior edge of the left L5 screw; mild right L3/4 facet joint arthritis and minimal right L4/5 facet joint arthritis; mild bony reaction around the L5/S1 intervertebral device consistent with low-grade bone stress reaction but with no evidence of significant fracture; arthritis in the sacroiliac joints, maximal in the inferior posterior position of the left sacroiliac joint; and a small focus of uptake in the distal left femoral metaphysis just medial to the midline of uncertain aetiology. CT correlation was suggested.[97]
23. On 13 November 2019, the claimant consulted Dr Parkinson who discussed the recent lumbosacral CT scan. He observed that the claimant had reasonably significant facet joint osteoarthritis bilaterally at L4/5 and that he was reasonably comfortable that her current pain was coming from the adjacent level above the fusion. He noted that the cortisone injection including the epidural and L4/5 facet blocks had made a big difference to her back pain but not her leg pain. There was no evidence on MRI scan of nerve compression but the leg pain was now bothering her. He recommended a neurology opinion from Dr Jennifer Massey regarding the leg pain. He also arranged for the claimant to return to Dr Taylor for an opinion regarding pain management and possible radiofrequency rhizotomy at L4/5 and possibly L3/4 as well.[98]
24. On 19 November 2019, Dr Taylor reported that the claimant described some reduction in pain initially following the recent epidural steroid injections and facet joint blocks but stated that her leg pain had returned to baseline although, there had been some improvement in the lower back pain. She continued to manage her pain with Panadeine Forte and cannabis oil. She also took Palexia slow release and gabapentin. He recommended radiofrequency denervation to L3/4 in combination with L4/5 and pulsed radiofrequency treatment to the S1 nerve roots at the same time. If there was no response to this, the claimant had the option of the spinal cord stimulator. Dr Taylor recommended the involvement of a multidisciplinary team to work on pain management rather than just pain reduction.[99]
25. On 6 December 2019, Dr Taylor reported that the claimant underwent radiofrequency denervation to bilateral L3-L5 facet joints as well as pulsed radiofrequency treatment to bilateral S1 nerve roots.[100]
26. On 13 December 2019, the claimant consulted Dr Neville who observed that she was tearful and noted that she had lost her job, her partner had left, her house was on the market for sale and that she had a new job. She was counselled in respect of pain management and was prescribed one Palexia SR 100mg tablet every 12 hours and one Palexia SR 50mg tablet three times per day.[101]
27. On 18 December 2019, Dr Laurent reported that the claimant had ongoing back pain which was not adequately controlled with significant analgesia. She had recently undergone radiofrequency neurolysis of the L3/4 and L4/5 facet joints without any significant benefit. Due to the significant amount of analgesics she was taking, she had been unable to work which had caused her financial problems. She had not been able to manage an exercise program provided by the physiotherapist. She had a relatively mild lumbar spondylosis with significant amounts of pain without any neurological involvement. She had been unable to exercise for some time and was also unable to reduce analgesics. Dr Laurent opined that until the claimant was able to exercise regularly, she was not going to have any significant improvement in her back pain.[102]
28. On 20 December 2019, Associate Professor Aggarwal reported that the claimant described pain in the lower lumbar region radiating to both legs down to the ankles which was a constant burning sensation with occasional sharp, stabbing pain. The pain was worse at night and frequently woke her. There was occasional paraesthesia and numbness of her feet, worse on the right. Nerve conduction studies had indicated no evidence of peripheral nerve dysfunction. EMG studies had indicated no evidence of denervation. Associate Professor Aggarwal opined that the claimant had developed a chronic neuropathic pain syndrome associated with chronic pain behaviour following her recent exacerbation of pain secondary to the motor accident. He had performed bilateral L5/S1 and bilateral piriformis trigger point blocks with local anaesthetic to try to improve the pain. He recommended the claimant commence Epilim in place of gabapentin.[103]
29. On 31 December 2019, the claimant consulted Dr Bidencope reporting that her mood was much worse taking Epilim instead of gabapentin. It was noted that her interactions with insurance were extremely difficult and Dr Bidencope recommended seeking assistance.[104]
30. On 8 January 2020, Dr Laurent referred the claimant to Dr Alison Blazey for opinion and further management of her medication addiction.[105]
31. On 8 January 2020, the claimant presented to Royal North Shore Hospital with new faecal incontinence in the context of chronic lower back pain and right-sided sciatica. The hospital's discharge referral noted that there had been three episodes of diarrhoea in the past week with no warning and she was unable to get to the bathroom in time. She had normal bowel motions in between. Back pain had been bad recently. There were no features of cauda equina or of infection. She was advised to discuss her symptoms with Dr Laurent.[106]
32. On 14 January 2020, Dr Jennifer Massey, neurologist, noted that the claimant reported constant pain varying between a dull ache affecting the lumbar spine and then radiating down the lateral aspect of both legs through to throbbing pains and occasional electric shock sensation affecting both legs. She had pins and needles that extended on the left side to the calf and to the sole of the foot on the right side. Her main functional limitation was a feeling of weakness. Dr Massey opined that the claimant's injury in July 2019 had clearly triggered off a significant pain syndrome. In the absence of hard motor findings or sensory changes, she did not think that there was much to be gained from further investigations or nerve conduction studies. Dr Massey opined that the focus should probably be around rehabilitation and a pain management program.[107]
33. On 20 January 2020, Dr Taylor reported that the claimant did not notice any significant changes in her symptoms following the radiofrequency denervation. Medication remained stable but the claimant was aware that this was likely contributing to her recent cognitive decline. She had been struggling at work due to poor memory and her mood remained a major issue. Dr Taylor discussed the option of the spinal cord stimulator but noted that the claimant would need to wean down on her opioid medication before trialling the stimulator.[108]
34. On 23 January 2020, Dr Massey reported that the claimant's symptoms had been stable without evidence of additional pathology contributing to her symptoms. Dr Massey opined that the claimant's care would be best managed with ongoing pain specialist input given the complex mix of medications and her psychiatric history. The role of cannabinoid oil was discussed and the claimant was referred to Dr Yu, pain specialist.[109]
35. On 7 February 2020, the claimant was fitted with a trial spinal cord stimulator.[110]
36. On 24 February 2020, Dr Taylor reported that he had previously cared for the claimant for a short period in 2014 for lower back pain which was successfully treated with radiofrequency denervation. She had been managing well with a few symptoms up until the motor accident, which precipitated a new low back and right leg pain. She was extensively investigated and trialled on conservative management but her symptoms remained. The symptoms were severe and intrusive. She had been unable to work and was on significant amounts of medication. She failed to respond to injections and radiofrequency denervation and ended up having a spinal cord stimulator inserted. The symptoms were severe and could not be classed as minor.[111]
37. On 24 February 2020, the claimant had a spinal cord stimulator implanted for neuropathic back and leg pain at North Shore Private Hospital.[112]
38. On 26 February 2020, the claimant consulted Dr Bidencope reporting that she had a spinal cord stimulator inserted and that her sciatica had gone. She was just experiencing some localised post-operative pain.[113]
39. On 11 March 2020, the claimant consulted Dr Bidencope reporting issues with her spinal cord stimulator that was causing aches and pins and needles in her arms.[114]
40. On 1 April 2020, the claimant consulted Dr Cross advising that she had moved homes and was currently working from home. She felt that she was currently paranoid/manic. She was not sleeping well and had increasing pain during the night. The plan was for her to take increased doses of Palexia and Panadeine Forte to try and cope with the increased pain that she felt was linked to her fall on the bus, which was unfortunate because she had been making good progress. Dr Cross increased her dosage of Lovan to 60mg.[115]
41. On 2 April 2020, Dr Taylor reported that it had been a month since the claimant underwent the implant of the spinal cord stimulator. Initially, there was quite a good response with her back and leg pain. However, she started developing atypical pins and needles in her upper limbs. The device was turned down and the claimant was working through some other programs with the device technician. Dr Taylor was confident that they would be able to find the right balance in the stimulator settings to provide the claimant with relief without any pins and needles. He noted that the claimant continued on Palexia and was also taking Panadeine Forte and that he would reduce such medication once the claimant achieved relief through the stimulator without the sensation of pins and needles.[116]
42. On 19 April 2020, the claimant consulted Dr Cross reporting ongoing pain in her back and legs. She had to decrease the spinal stimulator settings due to an issue with pain in her hands. The spinal stimulator had really helped her with pain and allowed her to decrease her need for medications. She reported that she was still struggling to find regular work and the ongoing pain was, obviously, having a negative effect on her mood. Dr Cross recommended a pain/rehabilitation review, possibly as an inpatient.[117]
43. On 28 April 2020, the claimant consulted Dr Cross reporting that she was currently doing some work on site but had been unable to obtain a full-time job, which was causing her stress. She reported her mood to be up and down. The spinal cord stimulator settings were being increased weekly but caused some pain in her hands. She felt that she needed a fresh approach to work and would consult a career counsellor.[118]
44. On 30 April 2020, Dr Taylor reported that the claimant was gradually becoming more active and had managed to come off all her analgesia. She felt confident to start to look for work. However, with the adjusted increases in her spinal stimulator, she experienced atypical pins and needles in her arms and hands resulting in the intensity of the stimulator being reduced.
45. On 18 June 2020, Dr Taylor reported that the claimant was making some progress but had continued to struggle with back and leg pain. Leg symptoms flared throughout the day and she struggled to sleep. Sitting tolerance was 20 minutes and walking tolerance was 200m.[119]
46. The discharge summary of Hunters Hill Private Hospital dated 12 August 2020 reported that the claimant was admitted to the hospital on 29 July 2020 following an admission to Royal North Shore Hospital for the onset of acute and chronic lower back pain on 20 July 2020. She came under the care of Associate Professor Aggarwal. The claimant required adjustment of pain medications including increased cannabis oil and gabapentin. She ceased Panadeine Forte. She reported improvement with inpatient treatment and felt stronger with an improved balance. Tremor of the limbs significantly improved. She continued to complain of nearly continuous right leg pain from hip to heel but her left leg pain had eased and presented only intermittently. Lower back pain was also intermittent.[120] The claimant was discharged on 12 August 2020.
47. On 24 August 2020, Dr Taylor reported that the claimant had been a patient of his since 2014. She had a history of spinal pain and had previously undergone a spinal fusion. She was quite active and employed following the procedures she underwent in 2014. Due to the motor accident, the claimant suffered a flare-up in her pain and the development of new symptoms. These symptoms had been extensively investigated and required significant treatment and numerous admissions to hospital. Given the claimant had very few symptoms prior to the motor accident and significant symptoms post-accident, Dr Taylor opined that it would be reasonable to assume that the current symptoms were related to the motor accident.[121]
48. On 28 October 2020, the claimant presented to The Mosman Practice complaining of severe back pain and right-sided sciatica after driving to Parramatta for a client meeting. The claimant's spinal cord stimulator was reprogrammed on 3 November 2020.[122]
49. On 8 December 2020, the claimant underwent an MRI scan of her lumbar spine on the referral of Dr Parkinson. The MRI scan demonstrated some mild facet joint arthrosis most notable at L4/L5. At the L5/S1 level, the exiting L5 nerve roots were contacted by prominent disc osteophyte. No focal disc protrusion or extrusion was seen.[123]
50. On 1 December 2020, Dr Taylor reported that the claimant continued to struggle with lower back and leg pain. He noted that after a recent change of her stimulator program, she experienced more symptoms on the left but hopefully, those symptoms would settle after the program was changed. She tried to keep active each day but struggled to walk more than 200m.[124]
51. On 4 December 2020, the claimant underwent an MRI scan of her lumbar spine that demonstrated some mild facet joint arthrosis, most notably at L4/5. At L5/S1, the exiting L5 nerve roots were contacted by a prominent disc osteophyte. There was no focal disc protrusion or extrusion.[125]
52. On 8 December 2020, the claimant consulted Dr Parkinson who noted that her spinal stimulator was not really working all that well. Repeat MRI scanning seemed to show some preferential deterioration in the L3/4 disc and so, he organised for the claimant to undergo an interlaminar epidural at that level.[126]
53. On 17 December 2020, the claimant underwent a CT guided epidural injection at L3/4.[127]
54. On 3 February 2021, the claimant consulted Dr Parkinson who noted that the recent cortisone injection had not helped her a great deal. He also noted that she was to consult Dr Taylor the following week.[128]
55. On 17 February 2021, the claimant consulted Dr Parkinson complaining of progressive weakness in the right leg. Dr Parkinson could not find anything objective on examination but preferred a second opinion from Dr Massey prior to proceeding with lumbar spinal surgery.[129] He also referred the claimant to Dr Elisheva Vissel, neurologist.
56. On 2 March 2021, Dr Vissel opined that the claimant had clinical signs and symptoms of right L5 radiculopathy although, those symptoms may reflect chronic changes from her injury in 2005. The recent lumbar MRI scan identified L5 nerve root contact bilaterally at the site of her previous surgery. In order to distinguish the chronic pain from the more acute changes, Dr Vissel arranged lower limb nerve conduction studies and suggested that, in the interim, a trial of localised L5 steroid injection might assist.[130]
57. The Royal North Shore Hospital discharge summary reported that the claimant presented on 11 March 2021 with increasing left leg pain and back pain over the past week. She described a two week history of bladder and bowel symptoms. The claimant reported bladder and faecal incontinence. The spinal surgical team was consulted. The gastroenterological team was also consulted due to severe constipation.[131] The claimant was then transferred to North Shore Private Hospital where she came under the care of and Dr Sandanayake and Dr Parratt.
58. On 29 March 2021, the claimant underwent motor nerve conduction studies, F wave studies, sensory nerve conduction studies and a needle EMG examination at North Shore Private Hospital that demonstrated no electrophysiological evidence for a large fibre neuropathy or myopathy affecting the lower limbs. The needle EMG revealed chronic denervation changes in L5 innervated muscles without any evidence of active denervation. The study was largely within normal limits except for L5 root chronic denervation changes.[132]
59. On 7 April 2021, Dr Taylor reported that the claimant was finding it difficult to manage her pain. She was started on a Norspan patch and Palexia was increased. She was also using Endone. Although the pain was quite significant, Dr Taylor was reluctant to increase her opiates.[133]
60. On 8 April 2021, the claimant consulted Dr Parkinson who noted that she had gone through a rough time with faecal incontinence and an admission to North Shore Private Hospital for pain management. He noted that she was due for a further gastroenterological review and that her lumbar puncture results were negative.[134]
61. On 21 April 2021, Dr Taylor reported that the claimant continued to struggle with significant pain despite extensive medication. She also suffered from nausea and cognitive impairment which he suspected was medication related. He did not make any changes to the claimant's medication but encouraged her to reduce her use of Palexia. He noted that she had trialled and failed numerous other medications, most of which, had led to significant side-effects.[135]
62. On 28 April 2021, Dr Parratt opined that the claimant did not have a central nervous system disease, such as, multiple sclerosis causing pain. He was uncertain as to whether there was a right sciatica lesion and had asked an expert to review the radiology films to advise whether this had been inflammatory sciatic neuritis as reported or nerve root abrasion from the piriformis or whether it was, in fact, normal. If there was evidence of piriformis syndrome, he would arrange for a corticosteroid injection. If it was neuritis, he would arrange a high dose of intravenous steroids. If it was neither, he recommended the claimant return to Dr Parkinson for consideration of surgery to replace the hardware in her lumbar spine.[136]
63. On 29 April 2021, the claimant consulted Dr Parkinson complaining that her pain had continued unabated. Dr Parkinson referred her to Dr James Yu for pain management and diagnosis.[137]
64. On 30 April 2021, Dr Yu reported that the claimant presented with persistent lower back pain and bilateral lower limb pain. The lower back pain had been ongoing since the motor accident. Dr Yu referred to the complexity of the claimant's ongoing pain and possible management options. He left the claimant's pharmacological management with analgesics and antidepressant medication to Dr Taylor and Dr Cross respectively. Dr Yu recommended increasing the claimant's cannabis oil dose. He also referred to a trial of intrathecal morphine by a catheter for three days at a hospital. If there was significant improvement with the trial, he could implant an intrathecal morphine pump.[138]
65. On 4 May 2021, Dr Parkinson referred the claimant to Associate Professor Steven Faux, rehabilitation and pain specialist, for a second opinion regarding her severe lower back pain with right-sided sciatica.[139]
66. On 21 May 2021, Dr Laurent opined that, although the claimant had a long history of chronic lower back pain prior to the motor accident, the accident would have exacerbated this pain such that she required a spinal stimulator for pain control. The claimant's depression and anxiety also contributed to the problems caused by back pain and made management more difficult but not impossible. The claimant would improve slowly over the next few years but she was unlikely to be able to return to her normal occupation for several years.[140]
67. On 8 June 2021, the claimant underwent an MRI scan of her right sciatic nerve.
68. On 9 June 2021, Dr Parkinson reported that the MRI scan of the sciatic nerve confirmed increased signal in the right sciatic nerve. However, the claimant was not really getting pain from that area as her main issue was left-sided lumbar paraspinal and mid-lumbar pain rather than any pain in the right leg. The MRI scan of 6 April 2021 indicated that there was dehydration and some retrolisthesis at L3/4 and some decrease signal on L4/5. He recommended an interlaminar epidural at those two levels.[141]
69. On 16 June 2021, the claimant presented to Northside Clinic with mixed depression, anxiety, chronic pain and multiple stressors. She reported panic attacks and an inability to sleep due to anxiety. She felt overwhelmed, confused and forgetful. She had difficulties with concentration and memory. She had difficulty sitting for extended periods. Appetite was poor and she had gained weight on gabapentin. She had low self-esteem and felt like a burden. She had difficulties with chores and activities of daily living. Suicidal ideation was passive and there was no intent or plan. She was engaged in safety planning and felt safe on the wards.[142]
70. On 22 June 2021, Dr Taylor reported that the claimant had undergone an L3/4 translaminar steroid injection the previous week and reported some improvement in pain. She was able to reduce her medication but had not made an improvement overall. Despite this, she still described fairly significant residual pain, significant mood disturbance, ongoing faecal incontinence and high disability.[143]
71. On 30 June 2021, Dr Parkinson reported that the recent L3/4 epidural injection had resulted in a dramatic improvement in the claimant's pain.[144]
72. On 2 July 2021, Associate Professor Aggarwal opined that the claimant had signs and symptoms of Parkinsonism and given that she had been off antipsychotic medications for over six months, he was concerned that she may have early-onset Parkinson's disease. He commenced the claimant on Sifrol.[145]
73. On 28 July 2021, Dr Parkinson reported that the claimant was doing reasonably well but that her back pain was starting to flare-up.[146]
74. On 23 August 2021, Dr Stephanie Barnes, neurologist, opined that it was possible that the claimant had drug induced Parkinsonism related to Quetiapine and Metoclopramide use. However, early-onset idiopathic Parkinson's disease remained a possibility and would require close monitoring. At that point, Dr Barnes opined that this did not change the claimant's current management.[147]
75. On 20 September 2021, Dr Parratt reported that, on examination, the claimant had a postural upper limb tremor. There was bilateral senile ptosis. There were very few Parkinsonian signs. Sensation was intact and the claimant walked slowly with a limp and a walking stick. There was evidence of a high signal change in the sciatic nerve that could not be piriformis syndrome. This was usually an inflammatory neuritis or vasculitis and could be remarkably painful. Dr Parratt recommended consideration of a trial of Lignocaine infusions for acute pain. If there was evidence of dynamic neurological changes in the lower limbs, this could lead to a trial of treatment or perhaps a sural nerve biopsy.[148]
76. On 21 September 2021, Dr Taylor reported that the claimant's pain had reduced compared to symptoms in July 2021 but that she was still struggling. She remained quite inactive and her sleep was terrible.[149]
77. On 13 October 2021, the claimant underwent a lumbar plexus MRI scan which, when compared with the MRI scan dated 8 June 2021, demonstrated significant progression in inflammatory changes involving the piriformis, sciatic nerves and adjacent muscles. The cause was unclear. It was recommended that the claimant undergo a CT venogram of the pelvis to assess for thrombosis.[150]
78. On 12 October 2021, the claimant underwent a lignocaine infusion for chronic pain at North Shore Private Hospital.[151]
79. On 15 October 2021, the claimant underwent a CT scan of her pelvis that revealed no features of venous thrombosis and inflammatory change in the region of the sciatic notch and a relative enlargement of a vein extending through the notch.[152]
80. On 25 October 2021, the claimant underwent a whole body bone scan which was compared with the pelvic CT scan with contrast dated 15 October 2021. There was no evidence of infection involving the bone. Uptake corresponding with internal fixation at L5, indicated ongoing bone remodelling.[153]
81. On 26 October 2021, the claimant underwent a CT guided fine needle aspiration biopsy of the right piriformis muscle region that revealed no immediate complications. On the same date, she underwent an 18F FDG PET/CT scan that showed no evidence of lymphoma or malignancy. There was low-grade uptake in the right piriformis muscle, most likely inflammatory, consistent with the recent MRI finding. There was low-grade uptake along and adjacent vein that could also be inflammatory.[154]
82. On 10 January 2022, Dr Barnes reported that the claimant had been doing reasonably well. There was a sensation of internal tremulousness throughout the body that occurred fairly frequently but the hand tremor was not particularly prominent. Walking was limited due to right lower limb and lower back pain. There was no stiffness in the lower limbs with walking. The claimant was struggling with bladder control and there had been small amounts of urinary incontinence. The claimant continued to have only mild Parkinsonian features on a background of long-term Quetiapine use, which was mostly drug-related. She was tolerating Sifrol and he discussed the possibility of increasing her dose to assist with her symptoms.[155]
83. On 9 February 2022, Professor Paul Glare, pain specialist, reported that he had discussed the claimant's case in a multidisciplinary team meeting and they had agreed on a diagnosis of chronic back pain following back surgery aggravated by trauma. This was in the context of major psychosocial issues and a reliance on biomedical treatments to relieve the pain. The multidisciplinary team felt that the claimant was a candidate for pain self-management training and would benefit from the ADAPT program. However, he opined that she needed a lot of preparation to shift away from her reliance on biomedical approaches.[156]
84. On 15 March 2022, Dr Parratt reported a recurrence of pain in the claimant's hands and that the lignocaine infusion had helped but it had gradually worn off. There was also increasing pain in the left leg since the last infusion in October 2021 and this neuralgic pain was the same as before. If she stood for too long, this could occur in the soles of both feet as well as bilateral shooting pain. She had an unusually high signal in the sciatic nerve which was difficult to explain as an injury. He queried vasculitis and arranged nerve conduction studies of the upper limbs and an MRI scan of the median nerve to investigate whether there were any focal lesions consistent with vasculitis. At the same time, the claimant would undergo lignocaine infusion to improve her pain. Dr Parratt noted some psychosocial stressors, including a falling out with her daughter.[157]
85. On 26 April 2022, the claimant was admitted to North Shore Private Hospital for treatment of lower limb pain by way of lignocaine infusion.[158]
86. An entry in The Mosman Practice clinical records dated 9 May 2022 noted that the recent lignocaine infusions had reduced the claimant's pain level.[159]
87. The Royal Melbourne Hospital emergency treatment summary dated 10 June 2022 noted that the claimant presented with a one week history of left leg pain starting in the foot radiating up into the lateral thigh. An ultrasound Doppler demonstrated no evidence of a deep vein thrombosis or superficial venous thrombophlebitis. There was extensive subcutaneous oedema extending through the calf into the left foot.[160]
88. On 20 June 2022, Dr Barnes reported that the claimant's tremor was currently well-controlled and she was happy with the current dose of Sifrol. She had continued with a biofeedback program through Royal North Shore Hospital for the bowel and there had been a significant impact. Lignocaine infusion had also improved her pain control and she was part of the ADAPT program. Dr Parratt had arranged a number of further investigations but there was no evidence of any ongoing vasculitic process. Dr Barnes reduced the Sifrol because of the significant oedema in her leg to assess the response.[161]
89. On 15 July 2022, the claimant consulted Dr Bidencope reporting that her psychiatrist had recommended admission to Northside Clinic under the care of Dr Kumar. Dr Bidencope provided a referral.[162]
90. On 6 September 2022, the claimant consulted Dr Dunn reporting that she had been feeling unwell since the end of July. The pain in her lower back and right leg was similar as before but was now worse. Sweats started at around the same time. She felt exhausted.[163]
91. On 26 November 2022, the claimant consulted Dr Bidencope reporting that she was now off all analgesic medications and would be consulting a psychologist, neurologist and a pain clinic in December 2022.[164]
92. On 20 December 2022, the claimant consulted Dr Bidencope reporting that she was quite despondent but was now not using much analgesia. She was much more mobile than before. She really needed some type of work.[165]
93. On 2 January 2024, the claimant consulted Dr Neville reporting poor sleep over the past month and that pain in her lower back and lower legs was keeping her awake. When she moved, she woke up.[166]

1. On 15 November 2021, the claimant consulted Dr Greggory Burrow, orthopaedic surgeon, at the request of the insurer's lawyer. Dr Burrow prepared a report dated 15 November 2021.[167] I will refer to the relevant parts of that report.
2. Dr Burrow took a personal history, past medical history, educational history, work history and a history of the motor accident from the claimant that were, in the main, consistent with the evidence. He noted the claimant's current symptoms and capabilities.
3. Dr Burrow conducted a clinical examination of the claimant and summarised the documents and investigations provided to him.
4. Dr Burrow opined that the claimant's recall of the motor accident, her injuries and her complex history tended to under-report the pre-accident severe chronic recurrent back and leg pain.
5. In respect of diagnosis, Dr Burrow opined as follows:

"[The claimant] suffered a work-related injury whilst lifting luggage into an aeroplane overhead locker in 2005, developing marked lumbar back pain which did not respond to extensive nonoperative treatment and Dr Kam subsequently performed posterior interbody fusion with disc replacement. There was some improvement in symptoms, but she had chronic ongoing back and leg pain through to 2015, with intermittent use of significant analgesia and centrally-acting drugs, under the care of Consultant Pain Physician, Dr Taylor.

There were increased symptoms after a twisting incident as she was standing on a bus going home on the second day of her employment on 2 July 2019. She attended Royal North Shore Hospital with marked back and right leg pain, a recurrence of her previous complaint, and since then has had recurrent, ongoing and increasing symptoms."[168]

1. Dr Burrow opined that the motor accident had aggravated pre-existing low back pain and radicular symptoms into the right leg. However, he was of the view that the claimant's current pain "would most likely be from more proximal disease to the intact fusion"[169] and as such, represented the natural history of fusion surgery in the lumbar spine at a relatively young age. He explained that the proximal (to the fusion surgery) mobile segments deteriorate in the medium to long-term and become increasingly symptomatic and disabling.
2. In respect of prognosis, Dr Burrow opined that it was poor. He was of the view that the claimant would see no improvement in her symptoms with continued non-operative treatment and he suspected that, with the chronicity and severity of her symptoms, she would not see significant improvement with surgical intervention either.
3. In respect of work capacity, Dr Burrow opined that the claimant was unfit for office duties or light duties on a permanent basis, partly due to her back condition, which itself was partly due to the motor accident and partly due to the natural history of degeneration of the

pre-existing back condition but also the recent diagnosis of a Parkinsonian type condition and other serious health issues. He also opined that she was unfit for any other positions. 4. Dr Burrow opined that the relative contribution of the motor accident would be one quarter, given the significant past medical history.

1. On 22 November 2021, the claimant consulted Dr John O'Neill, consultant neurologist, at the request of the insurer's lawyer. Dr O'Neill prepared a report dated 22 November 2021.[170] I will refer to the relevant parts of that report.
2. Dr O'Neill took a past medical history and a history of the motor accident from the claimant that were, in the main, consistent with the evidence. He summarised the documents and investigations provided to him. He noted the claimant's current symptoms and conducted an examination.
3. In respect of causation and diagnosis, Dr O'Neill opined that the claimant experienced an aggravation of pre-existing back and right leg pain as a direct consequence of the motor accident. There were no new abnormalities on neurological examination or on radiological studies, particularly on the MRI scan of the lumbar spine. The incident occurred in the setting of chronic psychiatric illness and stress. He noted that the claimant currently had chronic low back pain and non-verifiable radicular type pain in the right leg without any focal neurological signs and with no substrate for pain on recurrent imaging studies. The claimant currently required large doses of analgesic and anticonvulsant medication for her pain. Dr O'Neill noted that, at one point in the setting of heavy Quetiapine usage for the chronic psychiatric illness, it was postulated that the claimant might have Parkinsonism. He opined that, on today's examination, the claimant showed no symptoms or sign of Parkinson's disease or Parkinsonism.
4. In respect of prognosis, Dr O'Neill opined that it was poor because the claimant had entrenched chronic illness behaviour.

1. On 1 December 2021, the claimant consulted Dr Thomas Newlyn, consultant family and child psychiatrist, at the request of the insurer's lawyer. Dr Newlyn prepared a report dated 10 February 2022.[171] I will refer to the relevant parts of that report.
2. Dr Newlyn took a detailed history from the claimant that was, in the main, consistent with the evidence and he provided a summary of the relevant material provided to him.
3. Based on the combination of history, background material provided and the claimant's psychiatric mental status examination, Dr Newlyn opined that the claimant met the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5) diagnostic criteria for the principal diagnosis of persistent depressive disorder.
4. Dr Newlyn opined that the motor accident had exacerbated the claimant's persistent depressive disorder.
5. Dr Newlyn described the nature and extent of the claimant's injuries as sadness, emptiness, feeling down, tiredness and lack of energy, which resulted in a mild impairment in functioning.
6. In respect of prognosis, Dr Newlyn opined that having had a persistent depressive disorder dating from 2005, the claimant was likely to have symptoms for her lifetime.
7. In respect of employability, Dr Newlyn opined that from a mental health viewpoint, the claimant would be fit to undertake full pre-accident work duties until normal retirement age. He observed that the claimant asserted she worked full-time in the period before the motor accident despite her difficulties with her partner, alcohol and her psychiatric admissions. The documents supported her assertion of full-time work in the year before the motor accident but show that there had been mental health difficulties in life beginning in 2005 that interfered with her ability to work.
8. Dr Newlyn observed that the history obtained from the claimant was reliable and consistent with his psychiatric mental status examination.

1. Dr Burrow prepared a supplementary report at the request of the insurer's lawyers dated 23 June 2022.[172] I will refer to the relevant parts of that report.
2. Dr Burrow opined that the claimant's increased low back pain and radicular-like right leg pain were related to both her pre-existing back condition and the motor accident. On reviewing her past history, the claimant had severe pre-existing chronic low back pain which was debilitating and required extensive treatment including significant analgesia, central acting drugs and pain team management in the years prior to the motor accident.
3. Dr Burrow apportioned two thirds of the claimant's current symptoms and disabilities to the pre-existing back condition and one third due to the motor accident. He acknowledged that in his earlier report he apportioned one quarter as being due to the motor accident but apologetically explained that it somewhat reflected the claimant's complex medical history and multiple debilitating medical conditions.
4. Dr Burrow opined that, had the motor accident not occurred, the claimant would have continued to have chronic pain and could quite reasonably have expected to see increasing symptoms of disability for more proximal lumbar disease. It was possible that her symptoms and disabilities would have deteriorated to the current level but it was clear that the motor accident did contribute in some portion to her current presentation. However, such portion was relatively minor when compared to other conditions including the pre-existing back condition, mental health conditions (including self-harm) as well as a recent potential diagnosis of a Parkinsonian type condition. The natural history of the background

pre-existing condition of isolated lumbar fusion is the development of more proximal disease as has been reported in her radiological studies.

1. On 30 August 2022, the claimant consulted Dr James Bodel, orthopaedic surgeon, at the request of her lawyer. Dr Bodel prepared a report dated 30 August 2022.[173] I will refer to the relevant parts of that report.
2. Dr Bodel took a brief history from the claimant and conducted a physical examination. He had no X-rays or other tests available for review. He stated that he had carefully perused the documentation provided and briefly commented on documents.
3. Dr Bodel opined that the claimant had sustained a disc rupture at the lumbosacral junction causing sciatic radiation of pain as a result of the motor accident.
4. Dr Bodel acknowledged that the claimant had undergone previous surgery in the form of a spinal fusion but that there was new evidence of radiculopathy involving the right leg. He opined that the injury was not an exacerbation of her pre-existing condition but was new pathology with new radiculopathy.
5. Dr Bodel opined that the claimant's prognosis was guarded.
6. In respect of earning capacity, Dr Bodel opined that the claimant had suffered a significant restriction in her earning capacity. He noted that she was working casually in legal activities at the time of her injury and had not been able to return to this work, both from a physical and a psychological point of view. He added that the claimant needed to be formally assessed by psychiatrist and possibly, an occupational physician, to determine her earning capacity in the future.
7. Dr Bodel opined there was a probability that the claimant would need to consider surgery in the form of a decompressive laminectomy for the nerve root irritability that had been seen clinically. Surgery had not yet been recommended. The need for surgery would arise as a consequence of the effects of the injury caused by the motor accident. If surgery were to be undertaken, then hopefully, it would improve the chances of returning to work, but that would also depend on the status of the claimant's psychological condition.

1. On 25 August 2022, the claimant consulted Dr Timothy Siu, neurosurgeon, at the request of her lawyer. Dr Siu prepared a report dated 5 September 2022.[174] I will refer to the relevant parts of that report.
2. Dr Siu took a history of the injury, a medical history and a social history. He conducted a physical examination. He identified and summarised the investigations made available to him.
3. Dr Siu provided the following summary and assessment:

"[The claimant] is a chronic low back and right leg pain sufferer. Her pain could date back to at least 2006 [sic: 2005] when she underwent an L5/S1 fusion for her L5/S1 isthmic spondylolisthesis. She continued to suffer from considerable residual pain requiring treatment with a pain specialist, Dr Taylor. She was noted by Dr Taylor to have responded very well to radiofrequency treatment.

Her symptoms then increased after the index incident in 2019. She then underwent further percutaneous treatment and eventually placement of a spinal cord stimulator, which failed to provide her sustained relief.

In addition to severe chronic low back pain, [the claimant's] condition is also characterised by very marked right lower limb pain. This is non-radicular unrelated to any lumbar stenosis.

The cause of [the claimant's] persistent low back and right leg pain remains unclear. There is no converging evidence to pinpoint a specific underlying structural pain generator.

Collectively the mainstay of treatment for her condition is non-operative."[175]

1. Dr Siu stated that he agreed with the following opinions expressed by Dr Burrow:

(a) the claimant did have an extensive history of chronic low back and leg pain with extensive treatment prior to the motor accident;

(b) the claimant does not suffer from radiculopathy;

(c) the motor accident caused an aggravation of the claimant's pre-existing condition and she will require continued non-operative management;

(d) the claimant's prognosis is very guarded given her chronic pain status and history of extensive treatment compounded by a significant psychiatric history and,

(e) the claimant is permanently unfit for work including office work.

1. Dr Siu disagreed with Dr Burrow's opinion that the claimant was under-reporting her previous lumbar spine history. The reporting reflected the gravity of the sequelae of the motor accident rather than an under-reporting. The claimant gave a clear account that the motor accident had been a watershed event leading to a severe aggravation of her previous symptoms and the symptoms have persisted causing a marked deterioration of her overall functional status. He opined that the refractory nature of her pain was correlated by subsequent escalation of treatment from pharmacological means to invasive neuromodulation with spinal cord stimulation.
2. Dr Siu agreed with Dr O'Neill's assessment that the claimant was suffering from chronic low back pain with non-verifiable radicular type pain in the right leg and that there was no

clear-cut pain generator identified. He also agreed that the claimant was unfit for work, that her current symptoms were stable and that her impairment was unlikely to change. 3. Dr Siu disagreed with Dr O'Neill, in that, it was evident that the claimant had suffered from marked deterioration of her lumbar spine condition following the motor accident and that, therefore, an impairment had arisen from the motor accident.

1. On 5 September 2022, the claimant consulted Dr Nicholas Argyle, consultant psychiatrist, at the request of her lawyer. Dr Argyle prepared a report dated 12 September 2022.[176] I will refer to the relevant parts of that report.
2. Dr Argyle took a history of the motor accident, a family/personal history, a family history of mental illness, the claimant's past psychiatric history, the claimant's medical/surgical history, the claimant's drug and alcohol history, the claimant's history of psychological therapy and listed the claimant's current medications. He also noted the claimant's current symptoms and current functioning under the areas of functioning in accordance with the psychiatric impairment rating scale (PIRS) as set out in cl 6.219 the Motor Accident Guidelines (the Guidelines).
3. Dr Argyle conducted a mental state examination of the claimant and then provided the following diagnosis:

"[The claimant] clearly has a major depressive episode in progress at present with severely reduced mood every day, reduced enjoyment of life, reduced concentration and mental drive and poor sleep. Her depression is largely related to her pain and fluctuates with this. In the past, she has been diagnosed with dysthymia, which is now called in DSM-5 Persistent Depressive Disorder. Anxiety features have been noted along with this. Some prior reports suggest that she may have had dysthymia or persistent depressive disorder dating back as far as 2004 or 2005 but from her account today, she has had significant periods of time in the decade prior to 2015 when life was going well for her and she would not have met criteria for dysthymia. Since then, she has had some symptoms of depression most days and would qualify for dysthymia or persistent depressive disorder. In addition, she has had several episodes of Major Depression where she has had consistent episodes of depression on a daily basis and of a more severe nature including attempts to end her life."[177]

1. Dr Argyle opined that the claimant was suffering from a chronic depressive condition prior to the motor accident which, at times, fluctuated to be severe enough to warrant admission to hospital. This interrupted her enjoyment of life and her ability to maintain relationships. However, she continued to work generally at a full-time level as a commercial lawyer prior to the motor accident.
2. In respect of the claimant's likely prognosis for any pre-existing psychological/psychiatric conditions if the motor accident had not occurred, Dr Argyle opined:

"If her accident had not occurred and she had retained mobility and a lower level of pain, she would very likely have been able to continue working and this would have been a significant strength to her and she would, in all likelihood, have recovered from the loss of relationship that she suffered in 2019. It is probable that she would have continued with some level of dysthymia for a year or two but may well have been able to make a full recovery from this though remaining vulnerable to future episodes of major depression, if future stressors arrived."[178]

1. Dr Argyle observed that the motor accident had clearly been followed by excruciating pain which prevented the claimant from working. Although she had tried to return to work

part-time, she had actually not worked since the motor accident for more than a few days. The extent to which her impairment will continue rested predominately with her pain rather than with her psychological impairment which is to a large extent in reaction to the pain.

1. On 18 November 2022, Ms Chantelle Turner, pharmacist and medicine review specialist, prepared an initial pharmacy review and treating doctor contact report at the request of the insurer's lawyers.[179]
2. Ms Turner identified and listed the documents she had reviewed for the purposes of her report. She provided a detailed claim background and a medication summary as she understood it based on the documentation provided to her.
3. After thoroughly reviewing the file notes provided, Ms Turner was concerned about the effects that multiple sedating medications were having on the claimant's cognitive and physical function.
4. Ms Turner opined that, whilst it seemed that the number of the claimant's treating doctors had reduced over the preceding 12 months to possibly seven treating doctors or health practitioners caring for her, it was highly likely that communication and a cohesive approach to care would be negatively impacted.
5. On completing her file review, Ms Turner summarised her findings as follows:

(a) the claimant's opioid usage had significantly reduced over the past almost 18 months;

(b) the claimant remains in severe pain;

(c) Dr Bidencope felt that there was a lack of congruence in the management of the claimant's pain;

(d) Dr Bidencope was not receiving regular correspondence from Dr Taylor which may have been negatively impacting the continuity of care;

(e) the use of opioids, gabapentin, topiramate and baclofen may all have been contributing to the claimant's mental obfuscation;

(f) baclofen and gabapentin may, in theory, exacerbate the claimant's tremor;

(g) the indication of topiramate was unclear;

(h) query whether Lasix was related to the claimable injury, and

(i) symmetrel is not related to the claimable injury.

"1. For either Temgesic or Palexia IR be prescribed, not both for now. Immediate release should be reviewed and ceased if possible because as per best practice guidelines, it has no place in the management of chronic non-cancer pain.

1. The use of of [sic] opioids, Gabapentin, Topiramate and Baclofen may all be contributing to [the claimant's] mental obfuscation. I recommend that Gabapentin be weaned first and then the ongoing necessity of Baclofen and Topiramate be considered.
2. For the indication of Topiramate to be confirmed to verify if the medication is in fact related to the claim.
3. For it to be determined if secondary nausea and secondary constipation are a [sic] compensable conditions.
4. For the treating Doctor to monitor [the claimant] for prolonged QT interval while [the claimant] continues to take Motilium.
5. For the treating Doctor to consider the possibility that Prucalopride may be contributing to [the claimant's] decreased appetite.
6. For a case conference be completed with the treating Doctors, specifically Dr Bidencope, Dr Parratt, Dr Taylor and any other active treating Doctor who is guiding treatment to decide on an appropriate treatment plan moving forward."[180]

1. Dr Siu prepared a report dated 28 December 2022.[181] I will refer to the relevant parts of that report. It appears that the report was based on Dr Siu's consultation with the claimant on 25 August 2022 and that its first four pages of this report were identical to his report dated 5 September 2022. Thereafter, Dr Siu responded to specific questions put to him by the claimant's lawyer.
2. Dr Siu noted that the claimant stated that she was very active socially. She was involved in sailing and playing tennis with her friends. She could drive long distances and would travel overseas several times per year. She could walk a dog, make beds, cook and clean her home. Dr Siu opined that the claimant had a good functioning status with no significant disability at the time of the motor accident.
3. Dr Siu opined that the claimant's outlook would be difficult to predict if the motor accident had not occurred. The claimant's chronic pain status had been subject to flare-ups. Considering the severe impact of the motor accident despite the low energy nature of her injuries, the claimant may develop similar prolonged severe aggravation due to other day-to-day physical events.
4. Dr Siu opined that the motor accident had caused an exacerbation of the claimant's chronic low back and right leg pain, leading to a severe persistent worsening of her pain status. The claimant's worsened pain status and declining physical functioning since the motor accident were largely caused by the accident.

Associate Professor David Champion: 28 February 2023

1. On 8 February 2023, the claimant consulted Associate Professor David Champion, pain specialist, at the request of her lawyer. Associate Professor Champion prepared a report dated 28 February 2023.[182] I will refer to the relevant parts of that report.
2. Associate Professor Champion obtained a detailed pre-accident medical, occupational and social history. He also took a detailed history of the motor accident and the medical treatment the claimant received thereafter. These histories were, in the main, consistent with the evidence.
3. Associate Professor Champion conducted a clinical examination and set out his observations. He then identified and summarised the imaging investigations provided to him. He was impressed by the lack of generalised lumbar spondylosis, the changes being essentially in the L5/S1 (post-surgical) with minor facet joint changes in the two levels above.
4. Associate Professor Champion found evidence of radiculopathy in the right lower limb and referred to the definition of radiculopathy in the Guidelines supporting his findings in this regard.[183]
5. Associate Professor Champion referred to and commented on the parties' medico-legal reports.
6. In respect of the prognosis for the claimant's pre-existing lumbosacral related condition, Associate Professor Champion opined:

"It is appropriate to state that there was a high probability that [BRY] would have been subject to recurring lumbosacral and spinal and referred pain, potentially including radiculopathy throughout the remainder of her potential working life and remainder of her life generally, such was the degree of vulnerability. The fact is however that the accident in the bus induced acute severe back and radicular pain leading to severe pain-related disability and the need for a concerning array of requirements for procedural interventions for pain relief. The prognosis, already somewhat concerning, was substantially worsened by the subject incident/injury."[184]

1. Associate Professor Champion provided the following diagnosis:

"[The claimant's] primary diagnosis is chronic lumbosacral spinal pain syndrome with deep somatic referred pain and nociplastic extensions into the right lower limb (also a probable contribution from right trochanteric bursitis) and sensorimotor signs of radiculopathy involving right L5 and probable S1 nerve roots. I refer you to my examination findings on page 10 including the distribution of sensory impairment and responses to straight leg raising. It is difficult to know to what extent the motor deficits are the result of radiculopathy or are centrally mediated. The underlying spinal pathology includes the previous L5/S1 decompression and posterior fusion with L5/S1 discectomy (stable) and some degenerative changes which have probably gradually progressed in recent years. The L5 nerve roots are contacted by prominent disc osteophytes at L5/S1. None of this pathology has been a direct consequence of the subject bus injury but the injury certainly induced hyperexcitability and reduced sensory processing of right L5 and probably S1 nerve roots.

Secondary diagnoses include aggravation of previous impaired sleep, and of mental health, particularly depression of mood. One might also reasonably add requirement for drug therapy, major increase in disability, reduced income and social isolation.

The prognosis is very concerning. She will not and cannot recover effectively from her present condition which includes substantial exacerbation and progression caused by the subject injury. Life will be forever complicated while she maintains a spinal cord stimulator. I do not expect substantial improvement although there is potential for some maintenance of the recent improvement by the ketamine infusion, and prospect for future infusions."[185]

1. Associate Professor Champion opined that he was confident, based on all the information provided, that the motor accident did cause or contribute to the worsening of the claimant's impairment.
2. Associate Professor Champion opined that had the motor accident not occurred, there would have been a relatively high risk of ongoing symptoms and risk of exacerbation from biomechanical stresses to the claimant's lumbosacral spine but it would have required a similar kind of stress and severity of stress to have induced an experience such as that as has occurred.
3. In respect of the apportionment of the current level of disability between the claimant's injury caused by the motor accident and her pre-existing condition, Associate Professor Champion stated:

"I cannot imagine that, in the natural history without such causal influence as the bus injury, your client would have required such extensive pain management including multiple interventions leading up to the extreme intervention of the spinal cord stimulator. On that basis, I consider it reasonable to conclude that the proportion (percentage of symptoms, disability and impairments) related to the bus incident would be of the order of two-thirds (66%) to three-quarters (75%). I will make a cautious conclusion at two-thirds (66%)."[186]

1. In respect of the claimant's earning capacity, Associate Professor Champion noted that the claimant was working long hours as a solicitor in various roles prior to the motor accident. Since the accident, she had not been able to work as a solicitor or in any other capacity and that was likely to be permanent for the following reasons:

(a) the severity of the claimant's exacerbated back and right leg pain has been such as to require continual medical management at a high level of expertise and that will continue;

(b) the claimant will continue to be impaired into the future throughout her potential working life and beyond;

(c) the claimant experiences distressing chronic pain, major mental health problems, seriously impaired sleep, physical disability, effects of medications, social isolation and the need to continue multiple medical appointments and treatments; all of which are unlikely to resolve in the foreseeable future and so, she has long term restrictions with respect to the nature of required duties and work hours which will continue through her potential work life and beyond.

1. On 9 June 2023, the claimant consulted Professor Bruce Brew, neurologist, at the request of her lawyer. Professor Brew prepared a report dated 4 August 2023.[187] I will refer to the relevant parts of that report.
2. Professor Brew listed the documents he had considered in preparing his report. He took a history of the motor accident and the treatment the claimant received thereafter.
3. Professor Brew diagnosed the claimant as having suffered a severe exacerbation of her long-standing low back pain in the motor accident. Prior to the accident the low back pain had been minor. He observed that the pain did have some radicular features, particularly on the right, suggestive of L5/S1 nerve root irritation. Further, he noted that Dr Laurent's examination on 23 July 2019 had shown evidence of mild weakness of dorsi flexion and plantar flexion as well as sensory change in the posterior calf on the right.
4. Professor Brew opined that as the claimant had refractory pain subsequent to the motor accident and failed numerous interventions, it was not unreasonable to consider the insertion of a spinal cord stimulator in an attempt to give her some relief from pain.
5. Professor Brew opined that the claimant had drug induced Parkinsonism which had now completely resolved. Seroquel, the likely cause of the Parkinsonism, was indirectly related to the motor accident. However, because of the claimant's psychological symptoms, including depression and anxiety, that medication was used for a time and was the most likely cause of the drug induced Parkinsonism.
6. Professor Brew noted that he took a history from the claimant that her bladder and bowel dysfunction began many months after the spinal cord stimulator was inserted. The cause of her double incontinence was unclear. It had significantly improved with biofeedback training which suggested that there may well have been psychological factors at play, which were intermixed with her severe chronic pain. Therefore, the claimant's double incontinence was indirectly related to the motor accident.
7. Professor Brew did not consider that the claimant would require any further surgery in respect of her motor accident-related conditions.
8. Professor Brew opined that the claimant's prognosis was poor because she had a chronic pain syndrome which was likely to remain with her indefinitely.
9. In respect of work capacity, Professor Brew opined that the claimant could not work because she is in chronic pain with an impaired ability to sit for periods longer than 20 minutes and to stand for periods longer than 10 minutes. She had essentially been unable to work at all since January 2022. She is not able to work in any capacity and the impairment of her incapacity is likely to be indefinite.

1. On 11 September 2023, Professor Brew provided a supplementary report at the request of the claimant's lawyer.[188] I will refer to the relevant parts of that report.
2. The supplementary report focused on Professor Brew's assessment of WPI in his earlier report and requesting an assessment of WPI in respect of the Claimant's ulnar neuropathy that he had opined was indirectly caused by the motor accident. That matter was addressed in the supplementary report.
3. In respect of the claimant's lumbar spine, Professor Brew maintained his assessment of 10% WPI without any deduction for pre-existing impairment and explained as follows:

"[The claimant] did have pre-existing lumbosacral spine disease. Indeed she had low grade L5/S1 spondylolisthesis requiring spinal fusion in November 2005 because of ongoing pain. This was partially effective. Then there was a recurrence of pain leading to radiofrequency ablation by Dr Turner in 2014 which led to significant improvement. However, she was still having intermittent minor pain in the back prior to the accident.

Given that she was only complaining of minor pain in the back prior to the accident and was not disabled in any way, I consider the impact, according to the Motor Accident Guidelines, to be minimal at best and for practical purposes, given that there was no impact on her function and the pain was intermittent and minor, I do not consider a deduction for pre-existing injury (according to the Guidelines) to be appropriate.

To be clear, this is based on the fact that there were no particular symptoms related to her back prior to the accident, save for intermittent minor back pain. There was certainly pre-existing disease in the back, but this was not in any way significant prior to the accident and, indeed, did not lead to physical impairment."[189]

1. On 21 May 2024, the claimant again consulted Dr Burrow at the request of the insurer's lawyer. Dr Burrow prepared a report dated 21 May 2024.[190] I will refer to the relevant parts of that report.
2. Dr Burrow listed the documents he reviewed in preparing this report. He took an updated history and noted that the claimant's symptoms had basically continued since his last report. He conducted a clinical examination of the claimant and reported his observations.
3. Dr Burrow diagnosed the claimant with an aggravation of pre-existing degenerative changes associated with intact previous spinal fusion of the lumbar spine and pre-existing chronic pain. She experienced increased pain after the motor accident without a specific structural injury to the lumbar spine. Whilst there was no specific structural injury as a result of the motor accident, she had increased levels of chronic pain which had not significantly responded to pain management to date. However, she did note some slight improvement in symptoms with lignocaine and ketamine infusion.
4. Dr Burrow opined that there was no prospect of resolution of symptoms or even significant improvement and therefore, the prognosis is relatively poor. He noted that an isolated fusion at L5/S1 at a relatively young age can lead to more proximal disease in the medium to

long-term. There was evidence of this on the claimant's imaging and it was unrelated to the motor accident. The proximal disease only related to the natural history of the previous fusion surgery and condition. 5. Dr Burrow opined that the claimant required ongoing chronic pain management to some extent due to the motor accident. Potentially, she may require further lumbar surgery for more proximal disease as a result of the previous lumbar fusion surgery. There was no evidence that the motor accident had accelerated that process or contributed to that disease. It was pre-existent as evidenced by the degenerative changes demonstrated on the imaging studies immediately after the motor accident. 6. In respect of the claimant's earning capacity, Dr Burrow opined that the aggravation of pain she sustained in the motor accident had not precluded her from resumption of part-time office type work. He was of the opinion that the claimant is fit for part-time work, five hours a day, five days per week. Following the motor accident, she would have been unfit for work for two months as there was an aggravation of pre-existing chronic pain but no significant or acute new structural injury. Thereafter, she was fit to resume part-time restricted duties until the normal retirement age. With increased symptoms and disability over time as the more proximal disease develops and the potential for more proximal surgery approaches, such increased symptoms and disability may have an effect on her ability to work until the normal retirement age. Such a circumstance would not be influenced by the aggravation of pain caused by the motor accident. 7. Dr Burrow then proceeded to comment on the findings made by Dr Bodel, Dr Siu, Professor Brew and Dr O'Neill.

1. On 17 June 2024, the claimant again consulted Dr O'Neill at the request of the insurer's lawyer. Dr O'Neill prepared a report dated 17 June 2024.[191] I will refer to the relevant parts of that report.
2. Dr O'Neill discussed the progress of the claimant's back and right leg pain since his last consultation with her and discussed her psychiatric status. He reviewed the history of her right ulnar neuropathy, diagnosis of Parkinson's disease and diagnosis of widespread neuropathic pain.
3. Dr O'Neill conducted a clinical examination of the claimant and reported his observations.
4. Dr O'Neill opined that the claimant had experienced an aggravation of pre-existing back and right leg pain caused by the motor accident. This aggravation was not associated with any new abnormalities on neurological examination or on radiological studies. There were no signs of a persisting radiculopathy. Further, her symptoms are aggravated by her chronic and pre-existing psychiatric illness. He doubted that the claimant ever had a clinically definite right ulnar neuropathy. Dr O'Neill stated that he had never been convinced of the presence of Parkinsonism and that there were certainly no signs of that condition at this consultation. He opined that, in any event, the development of a Parkinsonian syndrome, even if it were present, could not be explained by the motor accident.
5. Dr O'Neill opined that he could not see anything that could be done to help the claimant with the chronic low back and right leg pain. There had been no substantive benefit from the spinal cord stimulator and perhaps, it should be removed as it seemed to have resulted in intermittent, more widespread pain symptoms. He suspected that there had been a significant psychosomatic basis for that more widespread pain. He saw no role for continued immunomodulation with intravenous steroids or mycophenolate. He believed that the claimant should be taken off Sifrol and in the interim period, she should be monitored by Dr Barnes.
6. Dr O'Neill opined that the claimant was clearly not fit to return to work in any capacity in her current state. The aggravated low back and right leg pain was now playing only a minor role in her inability to return to work.

1. On 8 May 2024, the claimant again consulted Dr Newlyn at the request of the insurer's lawyer. Dr Newlyn prepared a report dated 12 July 2024.[192] I will refer to the relevant parts of that report.
2. Dr Newlyn listed the material provided to him for the purpose of his consultation with the claimant. He took an updated psychiatric history from the claimant and updated her treatment history, including medications.
3. Dr Newlyn conducted a mental status examination. He opined that the history he obtained from the claimant was reliable and consistent with his psychiatric mental status examination.
4. Dr Newlyn opined that the claimant met DSM-5-TR diagnostic criteria for the principal diagnosis of persistent depressive disorder. He opined that the motor accident had exacerbated a persistent depressive disorder that began in 2005 and was symptomatic at the time of the motor accident. Symptoms were likely to persist for the claimant's lifetime.
5. Dr Newlyn opined that psychiatric consultations and the prescription of psychotropic medications were no longer related to the motor accident.
6. In respect of her mental health, Dr Newlyn opined that the claimant was fit for full

pre-accident work duties until normal retirement age. 7. Dr Newlyn made the following concluding comment:

"[The claimant] asserts she worked full-time in the period before the accident despite her difficulties with her partner, alcohol and her psychiatric admissions. The documents support her assertion of full-time work in the year before the accident but show there had been mental health difficulties in her life beginning in 2005 that interfered with her ability to work."[193]

1. A brief outline of the insurer's submissions is provided below.
2. In its oral submissions, the insurer submitted that the claimant had exaggerated the mechanism of injury.
3. In its written submissions, the insurer noted that the claimant alleged injuries to her lower back and a psychiatric injury caused by the motor accident and made a substantial claim in excess of $3 million for economic loss on the basis that she is unable to practice or advance her career as a solicitor. However, the claimant's submissions in her case did not take into account her very significant pre-existing physical disabilities and paid insufficient attention to the legal principles that address the reasonable assessment of damages based in such cases or the weight of expert opinion in the matter.
4. The insurer referred to the claimant's pre-existing physical conditions that it extracted from her treating medical records in evidence.[194]
5. Contrary to the claimant's submission that her back pain eventually settled, the claimant continued to report chronic back pain to Avenue Road Medical Practice, Synergy Medical Practice, Crows Nest Medical Practice and The Mosman Practice. She had also attended multiple specialists for treatment.
6. The psychiatric records in evidence revealed that the claimant continued to take Mersyndol (a strong pain reliever) and reported chronic pain after August 2014.
7. The insurer relied on the opinions expressed by Dr Burrow in his reports and highlighted those opinions.[195] The insurer also relied on the opinions expressed by Dr O'Neill in his reports and highlighted those opinions.[196]
8. The insurer referred to the claimant's pre-existing psychiatric/psychological conditions that it extracted from her treating medical records in evidence.[197]
9. The insurer relied on the opinions expressed by Dr Thomas Newlyn in his reports and highlighted those opinions.[198]

1. A brief outline of the claimant's submissions is provided below.
2. In her written submissions, the claimant acknowledged that she had a pre-accident history of physical and psychological conditions and referred to episodes extracted from her evidentiary statement and the medical records in evidence.[199]
3. The claimant submitted that there were only intermittent lower back symptoms after late 2014/early 2015 and highlighted the medical evidence in support of that submission.[200]
4. The claimant submitted that the evidence supported that she had suffered an injury to her lower back and a psychological injury caused by the motor accident.
5. The claimant referred to her post-accident medical treatment that she extracted from her treating medical records in evidence and submitted that her back pain had continued unabated since the motor accident.[201]
6. The claimant relied on the opinions expressed by Dr Argyle, Dr Bodel, Dr Siu, Associate Professor Champion and Professor Brew in their reports and highlighted those opinions.[202]
7. The claimant has established that the motor accident caused some physical and psychological injury. The onus, therefore, rested on the insurer to show that the claimant's current impairments would have arisen even if the motor accident had not occurred. The insurer has not discharged this onus.
8. The insurer's evidence, as a whole, proceeded on the incorrect assumption that the claimant's back pain was already "chronic" and "debilitating" prior to the motor accident. Such assumption cannot be proven on the evidence. The insurer's doctors do not even attempt to explain why they make that assumption in circumstances where the pre-accident evidence on which they relied to demonstrate prior back pain that dated back several years before the motor accident. The claimant's functioning had quite obviously improved since that time.
9. Dr Burrow accepted that, although the motor accident did not cause a specific structural injury, the claimant had increased levels of chronic pain that have not significantly responded to pain management to date, and that there is no prospect of resolution of symptoms or even of any significant improvement.
10. Dr O'Neill accepted that a "direct consequence" of the motor accident was an aggravation of pre-existing back and right leg pain. He also accepted that the claimant has chronic low back pain and non-verifiable radicular-type pain in the right leg. He suspected that there is a significant psychological element to the claimant's widespread pain (which the claimant does not cavil with, but which does not make her experience of pain any less valid).
11. Dr Newlyn accepted that the motor accident exacerbated the claimant's persistent depressive disorder that had begun in 2005. He considered that the claimant was likely to have symptoms for her lifetime.
12. Accordingly, there is no dispute that the claimant sustained an injury with aggravation of her pre-existing conditions as a result of the motor accident. The insurer accepts that Dr Burrow diagnosed an aggravation of pre-existing degenerative changes. The insurer accepts that Dr Newlyn diagnosed an aggravation of a pre-existing psychiatric condition.
13. There is clearly a difference of opinion between the respective medico-legal experts for the parties as to the extent to which the claimant's pre-existing conditions were aggravated and the extent to which new injuries were superimposed on existing conditions.
14. Despite the claimant's medical history, she had made good recoveries from each of her past setbacks. There is no doubt that the claimant had pre-existing lumbar pathology and a history of psychological conditions that had previously flared-up on several occasions. However, the insurer is required to take the claimant as it finds her.
15. At the time of the motor accident, the claimant was functioning extremely well and working full time and for long hours. Her medical history may have made her vulnerable to sustaining more severe injury in the motor accident, but that was not a discounting factor.
16. In respect of her oral evidence at the assessment conference, the claimant's memory was affected by the medication she was taking. By and large, she conceded the entries in the clinical records drawn to her attention by Mr Kelleher SC. The contemporaneous clinical records are the best objective evidence.
17. The claimant only had one or two instances of back pain after aggravating her lower back in 2014. After March 2018, there were no references to back pain in the clinical records. At the time of the motor accident, she had no problems with her lower back and had secured and commenced full-time employment.

1. The onus of establishing injury falls on the claimant and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction.
2. I accept the claimant's unchallenged evidence that, at 6.30am on the morning of the assessment conference, she applied a Norspan 5mg patch and took two Temgesic tablets and two gabapentin tablets.
3. The claimant's oral evidence at the assessment conference was given in a forthright manner. At times, she appeared to experience difficulty concentrating on the questions being put to her and appeared confused. On other occasions, her response was that she could not recall. On the occasions that her responses were inconsistent with the contemporaneous documentary evidence she made the appropriate concessions. I am firmly of the view that the claimant was doing her best to respond to the questions put to her in her oral evidence and that she was not being deliberately evasive or misleading.
4. I accept the claimant as a witness of truth, who did her best to provide a history of her medical conditions, injuries, treatment, complaints of symptoms and descriptions of ongoing disabilities to her treating doctors, the medico-legal specialists and the Commission over a long period of time, that is, from about 2005 to date. The histories she provided were, in the main, consistent.
5. There can be no dispute that the claimant had a long and complex pre-accident medical history. The details of her medical conditions preceding the motor accident can be found in the voluminous clinical records, treating doctors' reports and the records of allied health professionals in evidence. From time to time, she underwent extensive treatment.
6. Likewise, there can be no dispute that the claimant had pre-existing lumbar pathology and a history of psychological conditions that had flared-up from time to time prior to the motor accident on a number of occasions. However, as the claimant correctly submitted, the insurer is required to take the claimant as it finds her.
7. The claimant's case was that her pre-existing lower back and right leg pain and her

pre-existing psychological/psychiatric condition had been made worse by the motor accident. I find such proposition supported by the claimant's evidence and the preponderance of the medical evidence for the reasons set out below.

1. On 25 April 2005, the claimant injured her lower back and suffered sudden back and leg pain. She was initially diagnosed with mechanical back pain by her general practitioner. About two weeks later, she attended on her general practitioner complaining of worsening low back pain radiating down her right leg into her foot. She underwent medical imaging that demonstrated chronic L5/S1 spondylolisthesis and bilateral L5/S1 foraminal narrowing. She was referred to Dr Halpern. She underwent a lumbar spine MRI scan that demonstrated a grade II spondylolisthesis at the lumbosacral junction with right foraminal stenosis. She underwent CT guided bilateral facet joint injections and a right periradicular injection and was referred to Dr Kam. She underwent a repeat CT guided interlaminar epidural injection at L5/S1 on the right side and bilateral L5 pars blocks as recommended by Dr Kam. She underwent a CT guided right L5/S1 periradicular injection, a right L5/S1 pars block, a left L5/S1 periradicular injection and pars block. The injections were of little to no assistance in relieving the pain.
2. Having failed all conservative treatment, on 30 November 2005, the claimant underwent a posterior lumbar interbody fusion and pedicle screw fixation involving the L5/S1 by Dr Kam. On 23 March 2006, the claimant reported to Dr Kam good results following the surgery and that she had been able to return to work almost full time.
3. On 23 July 2009, the claimant reported to Dr Kam that, over the last three years, her symptoms of right-sided neck pain and back pain had gradually increased in intensity and frequency. She was reliant on potent pain relieving medication. She underwent a lumbar spine CT scan, MRI scan and plain X-rays all of which showed the surgical implants to be in good position with no evidence of movement or loosening and no evidence of new degenerative changes. She underwent a CT guided bilateral L4/5 facet joint injection. She underwent medial branch blocks on the recommendation of Dr Brooker, which gave her good relief on the left side and little relief on the right side. Dr Brooker recommended radiofrequency treatment.
4. The next flare-up of low back pain with referred pain into the right leg occurred on 7 May 2014 when the claimant bent and twisted to pick something up off the floor. She was referred to Dr Ball who reviewed recent lumbar spine CT scan and MRI scan and opined that she may have degenerative changes above her previous fusion causing the referred pain down her right leg. On the recommendation of Dr Taylor, she underwent diagnostic medial branch blocks to the right L4/5 facet joint and radiofrequency denervation on 29 July 2014 and 8 August 2014 respectively.
5. There were no entries in the clinical records referring to complaints of back and/or leg pain by the claimant in 2015, 2016, 2017 or 2019 until the time of the motor accident. There were two entries in the clinical records in 2018 referring to complaints of back pain by the claimant which I have referred to at [186] and [187] above.
6. Accordingly, I reject the insurer's submission that the claimant continued to report chronic back pain up to the time of the motor accident after 2014. I accept the claimant's evidence that her back and leg pain had settled after radiofrequency denervation in 2014 and that any symptoms from time to time thereafter were not significant and did not worry her.
7. I accept the claimant's evidence that, immediately after the motor accident, she was "in absolute agony" in her lower back and legs, especially the right leg.
8. The claimant underwent extensive medical treatment and medical investigations following the motor accident.
9. On the day of the motor accident, the claimant was admitted to Royal North Shore Hospital from 2 July 2019 to 5 July 2019. She was provided with pain relieving medication and underwent medical imaging and a foraminal injection at the left L4/5 and an injection of both L4/5 facet joints. She was transferred to North Shore Private Hospital for rehabilitation and was discharged on 13 July 2019. Thereafter, she came under the care of various general practitioners at The Mosman Practice.
10. Following her discharge from North Shore Private Hospital, the claimant came under the care of numerous medical specialists including, Dr Taylor, Dr Laurent, Dr Parkinson, Dr Massey, Associate Professor Aggarwal, Dr Parratt, Dr Vissel, Dr Yu and others for her ongoing severe lower back and lower limb pain.
11. The claimant underwent the medical imaging and other studies set out in the detailed analysis of the medical evidence referred to above including, CT scans, SPECT CT scans, PET CT scans; MRI scans, bone scans; nerve conduction studies; and EMG studies.
12. The claimant underwent the numerous procedures set out in the detailed analysis of the medical evidence referred to above including, the implant of a spinal cord stimulator; radiofrequency denervation to L4/5 bilaterally; a caudal epidural steroid injection; radiofrequency denervation to bilateral L3-L5 facet joints; pulsed radiofrequency treatment to bilateral S1 nerve roots; bilateral L5/S1 piriformis trigger point blocks; a CT guided epidural injection at L3/4; an L3/4 translaminar steroid injection; lignocaine infusions; ketamine infusions and a CT guided fine needle aspiration biopsy of the right piriformis muscle region.
13. The claimant presented to Royal North Shore Hospital with the severe flare-ups of her lower back and lower limb pain set out in the detailed analysis of the medical evidence referred to above.
14. The claimant underwent inpatient and outpatient rehabilitation at Hunters Hill Private Hospital and participated in the ADAPT rehabilitation program.
15. The claimant took the various potent pain-relieving medication set out in the detailed analysis of the medical evidence referred to above and also in the pharmacy review report by Ms Turner.
16. At best, some of the treatment the claimant received and the medications she took provided temporary relief for her pain, which has now become chronic.
17. The preponderance of the medical evidence set out in the detailed analysis of the same referred to above supported the finding that the claimant had suffered an aggravation of a pre-existing condition in her lumbosacral spine. What was in issue was the extent of the injury and aggravation of the claimant's pre-existing condition caused by the motor accident.
18. On 15 November 2021, Dr Burrow opined that the motor accident had aggravated the claimant's pre-existing low back pain and radicular symptoms into the right leg but was of the view that her current pain was most likely from the proximal disease to the intact fusion surgery because mobile segments deteriorate in the medium to long-term and become increasingly symptomatic and disabling. He went on to apportion the relative contribution of the motor accident and the natural history of degeneration of the claimant's pre-existing back condition as one quarter and three quarters respectively.
19. Dr Burrow did not adequately explain the actual path of reasoning by which he arrived at his opinion that the claimant's current pain was most likely the natural history of degeneration in her pre-existing back condition (from the proximal disease to the intact fusion surgery). Whilst I acknowledge that, in providing an expert opinion, medical experts often use their experience and medical intuition and that such opinion cannot always be elaborated and explained at length, it must be more than a mere assertion without proof. Further, it seemed to contradict his opinion in apportioning the contribution of the claimant's condition to the motor accident at one quarter. Accordingly, I have given Dr Burrow's report little weight in this regard.
20. On 22 November 2021, Dr O'Neill opined that the claimant experienced an aggravation of pre-existing back and right leg pain as a direct consequence of the motor accident. He noted that there were no new abnormalities on neurological examination or on radiological studies and that the claimant currently had chronic low back pain and non-verifiable radicular type pain in the right leg without any focal neurological signs. Dr O'Neill opined that the claimant's prognosis was poor because she had an entrenched chronic illness behaviour.
21. Unlike Dr Burrow, Dr O'Neill did not express the view that the claimant's current pain was most likely the natural history of degeneration in her pre-existing back condition.
22. On 23 June 2022, Dr Burrow revised his opinion as to apportionment. He opined that the claimant's increased low back pain and radicular-like right leg pain were related to both her pre-existing back condition and the motor accident. He now apportioned two thirds of her current symptoms and disabilities to the pre-existing back condition and one third due to the motor accident.
23. In arriving at the opinion referred to above, Dr Burrow reviewed the claimant's pre-accident medical history. He based his opinion on the claimant having had severe pre-existing chronic low back pain that was debilitating and required extensive treatment including significant analgesic, central acting drugs and pain team management in the years prior to the motor accident. Dr Burrow's assumption was not consistent with the medical evidence. The claimant's last severe flare-up of low back pain occurred in 2014. Thereafter, she was managing reasonably well physically as referred to in [432] above. I have given Dr Burrow's report little weight in this regard.
24. On 30 August 2022, Dr Bodel opined that the claimant had sustained a disc rupture at the lumbosacral junction causing sciatic radiation of pain as a result of the motor accident. He opined that there was new evidence of radiculopathy involving the right leg and that the claimant's injury was not an exacerbation of her pre-existing condition but was new pathology with new radiculopathy. Dr Bodel acknowledged that he had no X-rays or other tests available for review. None of the other medical or medico-legal evidence supported Dr Bodel's opinion. Accordingly, I give Dr Bodel's opinion no weight.
25. On 5 September 2022, Dr Siu opined that the motor accident caused an aggravation of the claimant's pre-existing condition and that she would require continued non-operative management. He opined that she did not suffer from radiculopathy. He opined that the claimant's prognosis was very guarded given her chronic pain status and history of extensive treatment compounded by a significant psychiatric history. Dr Siu observed that it was evident that the claimant had suffered from a marked deterioration of her lumbar spine condition following the motor accident and that, therefore, an impairment had arisen from the motor accident.
26. On 28 December 2022, Dr Siu confirmed his opinion that the motor accident caused an exacerbation of the claimant's chronic low back and right leg pain, leading to a severe persistent worsening of her pain status. Her worsened pain status and declining physical functioning since the motor accident were largely caused by the accident.
27. On 28 February 2023, Associate Professor Champion diagnosed the claimant with chronic lumbosacral spinal pain syndrome with deep somatic referred pain and nociplastic extensions into the right lower limb and sensorimotor signs of radiculopathy involving the right L5 and probable S1 nerve roots. He acknowledged that had the motor accident not occurred there would have been a relatively high risk of ongoing symptoms and risk of exacerbation from biomechanical stresses to the claimant's lumbosacral spine but that it would have required a similar kind of stress and severity of stress to have induced an experience such as that which has occurred. Associate Professor Champion assessed the contribution of the motor accident to the claimant's current level of disability at two thirds.
28. On 4 August 2023, Professor Brew diagnosed the claimant as having suffered a severe exacerbation of her long-standing low back pain in the motor accident, noting that, prior to the accident, her low back pain had been minor. He observed a right L5 S1 nerve root irritation. He opined that the claimant's prognosis was poor because she had a chronic pain syndrome which was likely to remain indefinitely.
29. On 21 May 2024, Dr Burrow confirmed his diagnosis of an aggravation of pre-existing degenerative changes associated with intact previous spinal fusion of the lumbar spine and pre-existing chronic pain. He observed that, whilst there was no specific structural injury as a result of the motor accident, the claimant had increased levels of chronic pain which had not significantly responded to pain management to date. He opined that there was no prospect of resolution of symptoms or even significant improvement. Dr Burrow opined that there was no evidence that the motor accident had accelerated the pre-existing disease process or contributed to that disease.
30. On 17 June 2024, Dr O'Neill confirmed his opinion that the claimant had experienced an aggravation of pre-existing back and right leg pain caused by the motor accident and that the aggravation was not associated with any new abnormalities on neurological examination or on radiological studies. He opined that there were no signs of persisting radiculopathy. Symptoms were aggravated by her chronic and pre-existing psychiatric illness. He could not see anything that could be done to help the claimant with chronic low back pain and right leg pain. He suspected a significant psychosomatic basis for her widespread pain.
31. I prefer the opinions expressed by Dr Siu, Associate Professor Champion, Professor Brew and Dr O'Neill over those expressed by Dr Burrows and Dr Bodel for the reasons already stated.
32. I am satisfied and find, on the balance of probabilities, that the claimant suffered a severe and ongoing aggravation of a pre-existing condition in her lumbosacral spine that was caused and/or materially contributed to by the motor accident for the following reasons:

(a) the mechanism of the incident, that is, the bus unexpectedly swinging one way and then the other way causing the claimant to be thrown violently one way and then violently back the other way, leaving her dangling from the strap she was holding onto and twisting her back;

(b) the acute and immediate onset of symptoms with the injury;

(c) the absence of any significant lower back or lower limb symptoms since about 2014, acknowledging the two flare-ups referred to above in 2018 which were of short duration and relieved by medication, and

(d) an unbroken chain of causation, with continuous pain since the onset.

The claimant's psychological/psychiatric injuries

1. There was no issue that the claimant's psychiatric history had commenced in about 2003 and had continued right up to the date of the motor accident.
2. The claimant's pre-accident psychiatric history is set out in the detailed analysis of the medical evidence referred to above and included a number of admissions to Northside Clinic, one of which occurred between 21 May 2019 and 7 June 2019, shortly before the motor accident.
3. On 10 February 2022, Dr Newlyn opined that the motor accident had exacerbated the claimant's persistent depressive disorder that had dated back to 2005. He opined that the claimant was likely to have symptoms for her lifetime. On 12 July 2024, Dr Newlyn confirmed the opinions expressed above.
4. On 12 September 2022, Dr Argyle opined that the claimant was suffering from a chronic depressive condition prior to the motor accident which, at times, fluctuated to be severe enough to warrant admission to hospital. He opined that the claimant had a major depressive episode in progress at present which was largely related to her pain and fluctuated with it.
5. I am satisfied and find, on the balance of probabilities, that the claimant suffered an aggravation of a pre-existing psychological/psychiatric condition that was caused and/or materially contributed to by the motor accident

1. I find that the claimant suffered the following injuries in the motor accident for the reasons stated above:

(a) a severe aggravation of a pre-existing condition in the lumbosacral spine with referred pain into both lower limbs, especially on the right that is ongoing and has become chronic, and

(b) aggravation of a pre-existing psychological/psychiatric condition that is ongoing.

1. I find that the claimant suffers the following ongoing increased pain, symptoms, difficulties, disabilities and restrictions as a result of the injuries she sustained in the motor accident:

(a) back pain;

(b) bilateral leg pain, particularly in the right leg;

(c) unsteadiness when walking, resulting in having to use a walking stick;

(d) frequent falls;

(e) difficulty standing for more than 10 minutes;

(f) difficulty sitting for more than 30 minutes;

(g) difficulty walking for more than 200m;

(h) difficulty driving for more than 20 minutes;

(i) difficulty with household tasks, such as cooking, cleaning, washing, gardening, shopping and caring for her two dogs and two cats;

(j) loss of earning capacity;

(k) depressed mood;

(l) anxiety;

(m) irritability;

(n) memory issues;

(o) difficulty concentrating;

(p) bouts of confusion;

(q) insomnia;

(r) fatigue;

(s) nausea;

(t) isolation from family and friends, and

(u) loneliness.

DAMAGES FOR PAST AND FUTURE LOSS OF EARNINGS OR LOSS OF EARNING CAPACITY

1. As the motor accident occurred whilst the claimant was travelling on a New South Wales government bus, s 121(1) of the Transport Administration Act 1988 (as amended in 2017) is relevant when it comes to the assessment of damages in this matter for the reasons stated below.
2. Section 121(1) of the Transport Administration Act 1988 provides:

"Chapter 5 (Award of damages) of the Motor Accidents Compensation Act 1999 applies to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of a public transport accident, not being an award of damages to which that Chapter applies. That Chapter so applies even though the public transport accident occurred after the commencement of the Motor Accidents Injuries Act 2017."

1. In McTye v Ching Yu Chang by his Tutor Leo Alexander Birch,[203] the issue for determination before the Court of Appeal was whether the injured person's damages (sustained on a government bus) were to be assessed under Chapter 5 of the Motor Accidents Compensation Act 1999 (MAC Act) or under Part 4 of the MAI Act in circumstances where the motor accident occurred after the commencement of the MAI Act. The Court of Appeal determined that damages were to be assessed under Chapter 5 of the MAC Act pursuant to the operation of s 121 of the Transport Administration Act 1988.
2. At the assessment conference, the claimant advised that she was only pursuing damages for past and future economic loss including superannuation in these proceedings. Accordingly, for the reasons stated above, the claimed damages in this matter will be assessed under the MAC Act.
3. In cases such as Medlin v State Government Insurance Commission[204] (Medlin) and Husher v Husher[205] (Husher), the High Court of Australia confirmed that the fundamental questions to be determined in a case such as this are whether the claimant has sustained a loss or diminution in her earning capacity and if so, whether that loss or diminution will result in economic loss.
4. In calculating any economic loss into the future, I must have regard to the provisions of s 126 of the MAC Act, which provides as follows:

"126 Future economic loss - claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

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

1. Section 127(1)(a) of the MAC Act provides that where an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referrable to deprivation or impairment of earning capacity, the present value of

the future economic loss is to be qualified by adopting the prescribed discount rate. Section 127(2) of the MAC Act prescribes a discount rate of 5%. 2. Section 126 of the MAC Act does not preclude the awarding of a buffer for future economic loss. The occasion for a buffer in accordance with the principles enunciated in Penrith City Council v Parks (Parks)[206] is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine. The use of a buffer to assess economic loss in this matter is not appropriate.

1. A brief outline of the insurer's submissions in respect of the claim for economic loss is provided below.
2. The insurer provided a pre-accident chronology that it submitted is relevant to the claimant's economic loss claim and her most likely circumstances but for the motor accident. The chronology commenced on 17 April 2015 and ended on 21 May 2019 and included admissions to Royal North Shore Hospital and Northside clinic; presentations to Royal North Shore Hospital due to stress, adjustment reaction, suicidal ideation and increased anxiety; the sudden termination of her employment with DC Strategy Lawyers; and the early end to her employment with Roads and Maritime Services.[207]
3. The insurer submitted that the opinion in relation to the claimant's "but for" earnings in the report of Furzer Crestani Forensic Chartered Accountants dated 3 April 2023 authored by Mr Chris Katehos and Ms Leanne Marks (the Furzer Crestani report) were not based on any evidence. The accountants did not offer any analysis and simply accepted the assumptions put to them, that is, that the claimant would have obtained a partner position at a small or mid-sized firm or continued working at Bell Partners until retirement at the age of, at least, 70. The Furzer Crestani opinion is completely speculative and the report and its underlying assumptions ought not to be accepted.
4. The Furzer Crestani report assumptions ignore the fact that, by the time of the motor accident, the claimant had already spent 25 years in the legal profession in varying jobs without ever approaching the quite significant levels of success that were now said to have been just around the corner. Such an outcome was inconsistent with the evidence of the most likely future circumstances of the claimant but for the motor accident.
5. The insurer relied on the report of Ms Belinda Fisher, legal recruiter. Ms Fisher noted that the claimant worked in a niche area and mostly acted for automative vehicle clients in commercial and franchise matters. In Ms Fisher's opinion, a niche practice in the Sydney market would be difficult to find and she provided her reasons for this opinion. Ms Fisher concluded that it would have been improbable for the claimant to identify existing legal practices in her area of expertise for purchase. Ms Fisher expected that the claimant's most likely circumstances but for the motor accident would have been to continue part-time contract roles via recruiters.
6. The insurer referred to Luntz H and Harder S, Assessment of Damages for Personal Injury and Death (LexisNexis Australia, 5th ed, 2021[208] (Luntz), Watts v Rake[209] (Watts), Purkiss v Crittenden[210] (Purkiss), Wilson v Peisley[211] (Peisley), Malec v Hutton Pty Ltd_[212]_ (Malec) and Medlin and submitted that it had clearly discharged its onus referred to in these cases.
7. Whilst the claimant was a vulnerable person and the insurer must take her as found, the fact that such a relatively minor event, not unlikely to occur in day-to-day life, is said to have caused such serious and permanent disability demonstrates the level of likelihood that a similar quotidian event could have resulted in the same outcome.
8. The claimant's pre-accident orthopaedic and psychiatric history was significant and warranted a greater reduction for vicissitudes to reflect the likelihood that she will experience ongoing difficulties from non-compensable factors.
9. There was a real chance the claimant would have developed similar symptoms due to the natural progression of the lumbar fusion in 2005. That is, there was a real chance a non-compensable condition would have brought the claimant to the same state and the claimant's damages must be discounted accordingly. The insurer relied on the opinions of Dr O'Neill, Dr Burrow and Associate Professor Champion. There should be a discount of 75%, which was supported by Dr Burrow.
10. The claimant's work history was inconsistent prior to the motor accident as demonstrated in the evidence. The insurer calculated a $1,564.11 net per week past loss of earnings based on 39 weeks' worth of payslips earned on secondments from Lawyers On Demand from 1 July 2018 to 31 March 2019. The insurer then applied a 75% discount that resulted in a weekly loss of earnings of $391.03 plus superannuation.
11. In respect of future loss of earnings, the insurer submitted that it be calculated on the basis of $391.03 net per week to the age of 67 years plus superannuation.

1. The claimant had a long history of working as a legal practitioner. Since her admission as a legal practitioner, she had largely remained in full-time employment. Despite her pre-existing physical and psychological conditions, she had largely worked consistently and to a high level as an employed solicitor, as a sole practitioner, as an in-house lawyer and as a contractor.
2. The claimant's employment history is outlined in her statement and in her curriculum vitae.
3. The claimant's strong history of employment and earnings is demonstrated unequivocally by the financial records which were analysed in the Furzer Crestani report and produced in a table reflecting calculations of the claimant's true earnings for the financial years 2014 to 2019 inclusive.
4. Except for one year of uncharacteristically lower earnings in 2018, explained by reference to the events set out in the claimant's evidentiary statement, she had earned over $200,000 for several years leading up to the motor accident.
5. The claimant's goal was to obtain equity partnership in an established firm and she had been working towards that goal in the period leading up to the motor accident.
6. On the day before the motor accident, she commenced a new role as head of commercial law with Bell Partners. Despite looking for a role with a pathway to equity partnership, she took the Bell Partners role because she was looking to refinance a home and required a stable employment position with a salary sufficient to satisfy the lender's criteria. She intended to remain in that position until she found a role more suited to her longer term goals. At Bell Partners, the claimant was on a salary of $210,000 per annum plus superannuation, which accorded with a proven history of earning capacity of over $200,000 per year as demonstrated in the Furzer Crestani report table referred to above.
7. Since the motor accident, the claimant made a number of attempts to return to work as set out in her evidentiary statement. She last worked in January 2022 for six days in a call centre.
8. The claimant referred to the medical evidence and submitted that, as a result of the motor accident, she has no retained earning capacity.
9. Even if the evidence was capable of supporting a finding that the pre-existing pathology may have deteriorated and caused some increased symptoms in the future, absent the motor accident, there is no evidence that the claimant's level of pain and disability would have been as significant as it is now, as a result of the motor accident.
10. If the evidence is capable of establishing that the claimant may have experienced increased disability and impairment in the future even if the accident had not occurred, the appropriate way to deal with that issue is not by way of apportionment of the current loss but rather by a discount for vicissitudes to account for the possibility of such further deterioration, but for the motor accident (Malec).
11. The insurer has not submitted that the claimant's psychiatric history is a relevant factor in its suggested discount for vicissitudes. Even if this were to be suggested, the claimant had carried on working throughout psychiatric exacerbations in the past, and there is no suggestion that her psychiatric condition would have worsened to the extent of affecting her earning capacity, had the motor accident not occurred. Indeed, the insurer's expert (Dr Newlyn) considered that, even since the accident, the claimant's earning capacity is not impaired from a psychiatric perspective. There should be no additional discount for vicissitudes for the claimant's psychiatric condition.
12. The claimant relied on the Furzer Crestani report.
13. The report of Ms Fisher should be given little weight for the reasons set out in the claimant's written submissions dated 11 November 2024.[213]
14. The figures set out in the Furzer Crestani report (based on the actual earnings that the claimant would have received in her employment at Bell Partners) are the appropriate measure of the minimum the claimant would have earned, if the accident had not occurred. The claimant maintains that an allowance should be made for career progression as set out in her primary submissions at $3,737 net per week.
15. The motor accident may have been the straw that broke the camel's back, but even if that is so, the insurer is liable for the complete destruction of the claimant's earning capacity caused by that final straw.

Damages for past loss of earnings or loss of earning capacity

1. The claimant's unchallenged evidence was that she completed her law degree at the end of 1995 and was admitted as a legal practitioner in New South Wales in August 1996.
2. The claimant provided a detailed pre-accident employment history from about 1995 to the date of the commencement of her employment with Bell Partners on 1 July 2019.[214] The claimant's work history demonstrated that she had worked reasonably consistently as an employed solicitor, a sole practitioner, an in-house lawyer and a contractor over about 23 years to the date of the motor accident.
3. The claimant's evidence was that, in May 2014, she started up her own legal firm performing legal work for one client initially. In late 2014, she was engaged by CLL Lawyers to carry out commercial litigation on a contract basis. In late 2014, she commenced looking for a general commercial legal firm to purchase and in February 2015, she was involved in negotiations to purchase such a firm in Parramatta. In February 2015, she commenced work as an employee of CLL Lawyers on a full-time basis in general commercial, automotive and commercial litigation as a salaried partner. Her father also performed contract work at the firm as special counsel. In August 2016, she commenced a one day per week secondment with SAIC Motor, a client of CLL Lawyers.
4. The claimant's evidence was that, in September 2016, she began looking for a position in a legal firm that would provide a fast track to becoming an equity partner within 12 to 18 months.[215] The claimant had discussions with Russell Kennedy Aiken Lawyers for a special counsel position, William Roberts Lawyers for a special counsel position and DC Strategy Group for the role of managing partner of its legal division. Each of these prospective employers advised her that the roles on offer would be fast tracked to equity partner within 12 to 18 months.[216] She accepted the DC Strategy Group offer and commenced her employment with them in March 2017. The claimant encountered issues in her employment with DC Strategy Group and provided details in her evidentiary statement.[217] She was given a month's notice of the termination of her employment in September 2017.
5. The claimant's evidence was that, in September 2017, she decided to return working for herself and set up an incorporated legal practice. As she had insufficient work to sustain her, she commenced working part-time for Lawyers on Demand where she was sent out for

in-house senior legal counsel roles with various companies who required assistance from a senior lawyer for short periods of time. 6. The claimant's evidence was that, from August 2018, she recommenced looking for senior roles in law firms with a fast track to equity partner. She engaged a number of recruiters, including Ms Belinda Fisher of Burgess Paluch to help her find roles. In late 2018, she began to consider other senior roles in law firms that did not have a fast track to partnership so that she could refinance the mortgage on her home. She received two job offers, the first of which fell through (February 2019) and the second, she did not accept because she did not believe it was the right fit for her (April 2019). 7. Between January and April 2019, the claimant was psychologically unwell. Dr Cross noted that he was focusing on stress management in the context of her work stressors. He also noted that a work contract had ended early and that she had nothing to go to in its place despite having attended many interviews without success. Further, her house was on the market and there was tension at home. The claimant was admitted to Northside Clinic at the referral of Dr Cross on 28 March 2019 and discharged on 5 April 2019. 8. On 12 May 2019, the claimant presented to Royal North Shore Hospital with suicidal ideation and increased anxiety in the context of alcohol intoxication. On 21 May 2019, she was admitted to Northside Clinic with increasing anxiety over the past month and almost daily panic attacks. She was discharged on 7 June 2019. 9. The unchallenged evidence is that, on 1 July 2019, the claimant commenced employment with Bell Partners as head of commercial law at a salary of $210,000 per annum plus superannuation.[218] The motor accident occurred the following day. 10. On 15 July 2019, the claimant returned to work at Bell Partners with difficulty as she was significantly affected by lower back and leg pain. She struggled with work performance because of her pain. On 1 August 2019, her employment was terminated. She then started to take steps to start up her own firm again, which took about one week to 10 days. She still had some clients and was trying to retain others. She found herself struggling to get through the work and was taking too long to perform the work. She was making more mistakes than usual. She ultimately realised that she was not going to be able to continue. 11. In December 2019, the claimant worked on a casual basis for a period of five weeks at two days per week with Aspect Legal. 12. On 24 February 2020 the claimant had a spinal cord stimulator implanted and started to feel physically better. On 23 March 2020, she commenced a casual contract organised by recruiter with Onsite Rental Group as a senior lawyer. The contract finished in about early May 2020. The claimant's evidence was that by mid-April 2020, her back and leg pain was slowly getting worse, leaving her constantly fatigued. 13. In January 2022, the claimant worked in a call centre for six days and has not worked since that time. 14. Despite experiencing flare-ups of her long-standing pre-accident lower back and leg, psychiatric conditions and other comorbidities, the claimant managed to continue working as a lawyer until the time of the motor accident. Thereafter, came the limited unsuccessful attempts to return to her pre-injury work referred to above. 15. The claimant's evidence was that, but for the injuries sustained in the motor accident, she would have worked full-time until the age of 70 years and thereafter, worked part-time for another 5 to 10 years. There was no corroborative evidence in this regard. 16. Dr Bodel opined that the claimant had suffered a significant reduction in her earning capacity from both a physical and psychological point of view but deferred to formal assessments by a psychiatrist and possibly, an occupational physician to determine her earning capacity in the future. I give little weight to Dr Bodel's opinion in this regard for the reasons already expressed. 17. Dr Burrow opined that the aggravation of pain the claimant sustained in the motor accident had not precluded her from resumption of part time office type work five hours per day, five days per week until normal retirement age following an initial post-accident two month period of total incapacity for work. I give little weight to Dr Burrow's opinion in this regard for the reasons already expressed. 18. Dr O'Neill opined that he could not see anything that could be done to help the claimant with her chronic low back pain and right leg pain. He further opined that she was clearly not fit to return to work in any capacity in her current state but opined that the aggravated low back and right leg pain was now playing only a minor role in her inability to return to work. 19. Dr Siu opined that the claimant was permanently unfit for work, including office work. 20. Associate Professor Champion opined that the claimant's inability to work as a solicitor or in any other capacity was likely to be permanent and provided his reasons as set out in [361] above. 21. Professor Brew opined that, due to her chronic lower back and leg pain and related restrictions, the claimant is not able to work in any capacity and that such impairment is likely to be indefinite. 22. I prefer the opinions of Dr Siu, Associate Professor Champion and Professor Brew over the opinions of Dr Burrow and Dr O'Neill in respect of the claimant's work capacity. In accordance with the findings I have made in respect of the claimant's motor accident-related injuries, I do not accept the minor role the aggravation to the claimant's low back and leg pain that Dr Burrow and Dr O'Neill attributed to the motor accident. They failed to adequately explain their paths of reasoning. Their opinions in this regard appear to be mere assertions without proof. 23. Dr Argyle opined that the extent to which the claimant's work impairment would continue rested predominantly with her pain rather than with her psychological impairment which was, to a large extent, in reaction to the pain. 24. Dr Newlyn opined that, from a mental health viewpoint, the claimant would be fit to undertake full pre-accident work duties until normal retirement age. In this regard, he observed that the claimant asserted she worked full-time in the period before the motor accident despite difficulties with her partner, alcohol and psychiatric admissions. He also observed that the documents supported her assertion of full-time work in the year before the motor accident but showed that there had been mental health difficulties in life beginning in 2005 that interfered with her ability to work. 25. The opinions of Dr Argyle and Dr Newlyn were not greatly inconsistent, except that, the latter did not take into account that part of the claimant's psychological impairment that was related to the chronic low back and leg pain that had developed and continued following the motor accident. Accordingly, I prefer the opinion of Dr Argyle in respect of the claimant's work capacity. 26. I reject the insurer's submission that the mechanism of injury in the motor accident was a relatively minor event for reasons I have already stated. 27. I am satisfied that, as a result of the injuries and restrictions I have found were caused by the motor accident, the claimant has sustained a loss or diminution in her earning capacity and that such loss or diminution has resulted in economic loss. 28. I find that, as a result of the injuries I have found caused by the motor accident, the claimant does not have the capacity to return to her pre-injury work of a solicitor or in any other capacity. The combination of her motor accident-related injuries and increased restrictions result in her having no realistic residual earning capacity on the open labour market in the future. 29. I now turn to the calculation of the claimant's economic loss. 30. In evidence, is the Furzer Crestani report.[219] The Furzer Crestani report purported to assess the claimant's economic loss following the motor accident. It assessed the claimant's past and future income loss and superannuation loss due to her inability to work following the motor accident. 31. The Furzer Crestani report noted by way of background that the claimant was a qualified solicitor with extensive experience in legal practice, including roles as a principal solicitor and managing partner. On 1 July 2019, she began employment with Bell Partners on a salary of $210,000 plus superannuation. The claimant viewed this role as an interim one whilst seeking equity partnership opportunities within the legal profession elsewhere. The motor accident caused injuries to the claimant's lumbar spine and caused a persistent depressive disorder that rendered her unable to work in any capacity. 32. In respect of the claimant's pre-accident career, the Furzer Crestani report noted that she had consistently worked full-time despite pre-existing health issues, including migraines, psychological challenges and a history of back injury. It noted that she intended to work

full-time until the age of 70 years, followed by part-time work for 5 to 10 years. 33. In respect of the claimant's post-accident career, the Furzer Crestani report noted that the claimant returned to work briefly at Bell Partners. However, she remained in considerable pain and her employment was terminated on 1 August 2019. The report noted that subsequent employment included initially operating her own practice in a limited capacity, casual roles (Aspect Legal and Onsite Rental Group) and call centre work. However, the claimant was unable to sustain consistent employment and was unable to return to work in any capacity. 34. The Furzer Crestani report provided a schedule of the sources that were reviewed and relied on in preparing the assessment of the claimant's economic loss.[220] 35. The Furzer Crestani report provided an assessment of the claimant's economic loss into two scenarios. Scenario 1: where the claimant continued to work as a solicitor for Bell Partners from 2 July 2019 until she was able to attain a partner's position on 1 July 2020 with either a small sized legal firm as option A or alternatively, a mid-sized legal firm as option B. Scenario 2: where the claimant continued to work as a solicitor for Bell Partners until her retirement on attaining the age of 70 years and thereafter, part-time until either 75 years of age or, alternatively, 80 years of age. All calculations assumed that the claimant had no residual earning capacity. 36. Table 2 of the Furzer Crestani report set out calculations of what was referred to as the claimant's "true earnings" for the financial years 2014 to 2021 inclusive. It did not include the claimant's six days work in a call centre in early 2022 as that information was not available at the time of the preparation of the report. In respect of the claimant's true earnings in the four years prior to the motor accident, the authors of the Furzer Crestani report calculated that her average true earnings were $195,920 per annum. 37. The calculations of the claimant's past and future economic loss in the two case scenarios and the options therein were set out in schedules D to L of the Furzer Crestani report.[221] 38. In evidence, there is a report from Burgess Paluch Legal Recruitment by Ms Belinda Fisher, legal recruiter, dated 16 September 2024.[222] 39. Ms Fisher set out her employment history and her qualifications as an expert. She is a partner in a national legal recruitment agency, Burgess Paluch, and undertakes legal recruitment for lawyers in both private practice and in-house, including general counsel roles. She has been involved in legal recruitment on a full-time basis since April 2006. 40. At the beginning of her report, Ms Fisher provided a brief summary of her opinion. Ms Fisher opined that it would be improbable for the claimant, but for her injury, to have obtained and sustained a role as a partner in a small law firm or in a mid-tier law firm by 1 July 2020. She further opined that the career opportunities available to the claimant would now include

part-time contract in-house roles similar to the roles she had obtained prior to the motor accident. 41. Ms Fisher listed the documentation she had reviewed in preparing her report. She also listed what she referred to as the relevant facts, matters and assumptions in respect of the claimant. She listed the claimant's employment history.[223] 42. Ms Fisher provided her opinion on the claimant's prospects of obtaining and sustaining a role as a partner in a small law firm and in a mid-tier law firm by 1 July 2020 and her reasons for concluding that it would be improbable for her, but for her injury, to have obtained and sustained such roles. Such reasons included the COVID-19 pandemic and its effect on the legal industry; the claimant's failure in starting her own business in about April 2015; the long hours and stress involved in being a salaried partner in a law firm due to the claimant's response to stress and pressure; the claimant's attempts at suicide and psychiatric admissions; the claimant's history of part-time and contract work prior to the motor accident; and the claimant's history of terminations and redundancies from employment prior to the motor accident. 43. Ms Fisher opined that the claimant's likely career trajectory until retirement was very limited due to her experience including lengthy broken periods of time in her father's niche legal practice and having worked part-time and in contract roles prior to the motor accident. Further, many of her roles had ended due to the employment periods being terminated or being made redundant. 44. Ms Fisher opined that it was doubtful that the claimant would have many opportunities to continue her career other than in contract roles for the reasons already stated. She opined that the claimant's work history had been drastically affected by her mental health. She referred to the reports of Dr Burrow. 45. Ms Fisher also referred to the "current economic slowdown"[224] as a further consideration in the conclusions she had reached. She also opined that the claimant would have difficulty obtaining references given her recent work history, namely, redundancies and numerous terminations, and that a reference from her father would be considered to be biased. 46. I find that Ms Fisher strayed outside her area of expertise when she opined that the claimant's work history had been drastically affected by her mental health and I have taken this into consideration when considering her expert opinion. Further, the evidence is that the claimant, to her credit, did not cease working for any significant periods of time as a result of intermittent flare-ups of her psychological condition, her lower back condition or other comorbidities. 47. I reject the insurer's methodology in calculating the claimant's past loss of earnings and suggesting that it should form the basis for her most likely future earnings but for the motor accident. It is misconceived. I agree with the claimant's submission that "cherry picking" the claimant's 39 weeks employment with Lawyers On Demand and ignoring her earnings in the four years leading up to the motor accident was inappropriate. 48. I now turn to a consideration of the claimant's most likely future circumstances but for her injuries sustained in the motor accident and her level of earnings. 49. Whilst I accept that the claimant may have had a desire to become an equity partner in a small to mid-tier legal firm, the pattern and nature of her work history in the legal profession in the 23 years prior to the motor accident does not satisfy me that such desire would have been her most likely future circumstance but for her injuries. 50. I find that the claimant's most likely future circumstances but for the injuries and resultant restrictions caused by the motor accident, would have seen her continue as either an employed solicitor, a sole practitioner, an in-house lawyer or a contractor or, as evidenced in the past, a combination of some of these. 51. The claimant's employment with Bell Partners on a salary of $210,000 per annum was short lived due to the motor accident and as such, was not the perfect measuring stick in respect of an annual salary or whether that type of employment suited her. However, there was evidence in the four years preceding the motor accident that the claimant was averaging close to $200,000 gross per annum as an employed solicitor, a sole practitioner, an in-house lawyer and a contractor. In such circumstances, I find the figure of $210,000 gross plus superannuation per annum as an appropriate starting point when calculating her past loss of earnings. 52. I assess the claimant's entitlement to past loss of earnings from 3 July 2019 to 28 May 2025 as follows:

$210,000 gross per annum = $4,038.46, rounded down to $4,038 gross per week being $138,191 net per annum = $2,657.52, rounded up to $2,658 net per week.

3 July 2019 to 30 June 2020 = say, 52 weeks x $2,658 net per week = $138,216.

Less actual income after tax as calculated by Furzer Crestani Forensic Chartered Accountants on the claimant's records of $63,718 = $74,498.

Sydney consumer price index (CPI) percentage = 0%. $210,000 gross per annum = $4,038.46, rounded down to $4,038 gross per week being $140,621 net per annum = $2,704.25, rounded down to $2,704 net per week.

1 July 2020 to 30 June 2021 = say, 52 weeks x $2,704 net per week = $140,608.

Less actual income after tax as calculated by Furzer Crestani Forensic Chartered Accountants on the claimant's records of $8,814 = $131,794.

$210,000 gross per annum and add CPI percentage increase 3.02% = $6,342 = $216,342 gross per annum = $4,160.42, rounded down to $4,160 gross per week being $143,983 net per annum = $2,768.90, rounded up to $2,769 net per week.

1 July 2021 to 30 June 2022 = say, 52 weeks x $2,769 net per week = $143,988.

Less actual income after tax as calculated by Furzer Crestani Forensic Chartered Accountants on the claimant's records of $8,814 = $135,174.

$216,342 gross per annum and add Sydney CPI percentage increase 5.28% = $11,422.86, rounded up to $11,423 = $227,765 gross per annum = $4,380.10, rounded down to $4,380 gross per week being $150,046 net per annum = $2,885.50, rounded up to $2,886 net per week.

1 July 2022 to 30 June 2023 = say, 52 weeks x $2,886 net per week = $150,072.

$227,765 gross per annum and add Sydney CPI percentage increase 3.8% = $8,655.07, rounded down to $8,655 = $236,420 gross per annum = $4,546.54, rounded up to $4,547 gross per week being $154,046 net per annum = $2,962.42, rounded down to $2,962 net per week.

1 July 2023 to 30 June 2024 = say, 52 weeks x $2,962 net per week = $154,024.

$236,420 gross per annum and add Sydney CPI percentage increase 2.3% = $5,437.66, rounded up to $5,438 = $241,858 gross per annum = $4,651.12, rounded down to $4,651 gross per week being $162,044 net per annum = $3,116.23, rounded down to $3,116 net per week.

1 July 2024 to 28 May 2025 = say, 47 weeks x $3,116 net per week = $146,452.

1. The claimant's total past loss of earnings comes to $792,014.
2. I calculate the claimant's entitlement to past superannuation as follows:

Superannuation guarantee percentage (SGP) for 3 July 2019 to 30 June 2020 = 9.5% on gross of $210,000 per annum = $19,950.

SGP for 1 July 2020 to 30 June 2021 = 9.5% on gross of $210,000 per annum = $19,950.

SGP for 1 July 2021 to 30 June 2022 = 10% on gross of $216,342 per annum = $21,634.20, rounded down to $21,634.

SGP for 1 July 2022 to 30 June 2023 = 10.5% on gross of $227,765 per annum = $23,915.33, rounded down to $23,915.

SGP for 1 July 2023 to 30 June 2024 = 11% on gross of $236,420 per annum = $26,006.20, rounded down to $26,006.

SGP for 1 July 2024 to 28 May 2025 = 11.5%. Gross of $241,858 per annum = $4,651 gross per week x 11.5% = $534.87 superannuation per week x 47 weeks =$591.78 = $27,813.66, rounded down to $27,813.

1. The claimant's total entitlement to past superannuation comes to $139,268.
2. Accordingly, I assess the claimant's entitlement to past loss of earnings at $931,282, inclusive of superannuation.

Damages for future loss of earnings or loss of earning capacity

1. Whilst I accept that the claimant may have believed that she would have worked to age 70 and on a part-time basis for some years thereafter, I am not satisfied, on the available evidence and in the absence of corroborative evidence, that she would have done so.
2. Having found that the motor accident caused and/or materially contributed to the claimant suffering a severe and ongoing aggravation of a pre-existing condition in her lumbosacral spine and an ongoing aggravation of a pre-existing psychological/psychiatric condition, the evidential onus is on the insurer of proving that the alleged pre-existing conditions did exist and that these conditions in their natural progression would have produced similar symptoms.
3. The insurer submitted that there was a real chance the claimant would have developed similar symptoms due to the natural progression of the lumbar fusion she underwent in 2005. That is, there was a real chance that a non-compensable condition would have brought the claimant to the same state. Therefore, the claimant's damages must be discounted accordingly.
4. There is no dispute that the claimant had long-standing lower back and psychological conditions. The insurer has failed to discharge its onus of proving that the claimant's

pre-existing lower back condition in its natural progression would have produced similar symptoms as those that have continued since the motor accident for the reasons I have already stated in the review of the medical evidence. The insurer relied on Dr Burrow in this regard whose evidence I did not prefer over the evidence of Dr Siu, Professor Brew and Associate Professor Champion. 5. The insurer also submitted that a similar daily event as the mechanism of injury that occurred in the subject bus incident could have resulted in the same outcome. However, Associate Professor Champion, whose evidence I have preferred, opined that it would have taken another event of a similar kind of stress and severity to that which occurred to the claimant on the bus to have induced the experience that had in fact occurred. It was nothing more than a possibility which is ordinarily covered by the vicissitudes allowed in the ordinary case. 6. I have found that the loss of the claimant's earning capacity as a result of her motor accident related injuries and restrictions is currently $3,116 net per week. I find that such loss will continue until her retirement at the age of 67, that is, another, say 15 years. 7. I assess the claimant's entitlement to future loss of earnings as follows:

$3,116 net per week x 555.0 (Multiplier for 15 years): $1,729,380

total future net loss of earnings: **$**1,469,973

1. I calculate the claimant's future loss of superannuation entitlements as follows:

$1,469,973 future net loss of earnings x 14.63% (15 years) =

1. Accordingly, I assess the claimant's entitlement to future loss of earnings at $1,685,030 inclusive of superannuation.

1. Under s 7.36(1)(b) of the 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:

• Past loss of earnings: $792,014
• Fox v Wood damages (s 4.5(1)(d) of the MAI Act): $70,837
• Past loss of superannuation: $139,268
• Future loss of earnings: $1,469,973
• Future loss of superannuation: $215,057

Total of economic losses and non-economic loss: $2,687,149

The claimant's economic loss is to be reduced by, and the insurer is to have credit for, the following payments:

• Payments made under section 3.40(1)(b) of the MAI Act: $460,155.10.

1. The claimant's lawyers provided a schedule of claimed costs and disbursements dated 12 November 2024.[225] The insurer's lawyers provided a schedule of costs and disbursements in response dated 20 November 2024.[226]
2. The insurer's schedule of costs and disbursements set out the maximum fees payable in respect of the medical report fees claimed by the claimant. At the assessment conference, the claimant accepted the insurer's schedule in respect of the claimed medical report fees.
3. The insurer disputed the unregulated disbursement of the Furzer Crestani forensic accounting report dated 3 April 2023. The insurer submitted that the Furzer Crestani report was of no assistance to the Commission. It contained a simple series of calculations derived from untested assumptions in the claimant's letter of instruction. The report did not offer an expert analysis and it did not involve an independent exercise of expertise. Therefore, the claimant should not be awarded the cost of the Furzer Crestani report.
4. The claimant submitted that the insurer's submissions overlooked the fact that a dominant purpose of the report was to analyse her financial records to derive her true earnings so that a baseline could be set for her claim for loss of earnings. The claimant was self-employed for some periods and calculating her actual income was not a straight forward process.
5. The claimant further submitted that she was also plainly entitled to obtain evidence as to what her earnings may have been if she had attained the position that she intended to obtain, had the motor accident not occurred. The Furzer Crestani report provided this evidence, based on Mahlab reports, and provided the necessary calculations. The reasonableness of a party obtaining evidence does not depend on that party's claim ultimately being accepted.
6. I find the insurer's submissions unpersuasive. The claimant's claim for economic loss was somewhat complicated and involved not only an analysis of her actual income but also an analysis of three possible scenarios and the relevant calculations pertaining thereto in respect of her future earnings. The insurer made no submissions in respect of the cost of the report. Accordingly, I award the claimant the cost of the Furzer Crestani report as claimed, that is, $8,360.
7. As indicated at the preliminary conference and at the assessment conference, I will not calculate the claimant's costs and disbursements but rather, I make an order that the insurer is to pay the claimant's legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 as agreed between the parties and as assessed by me in respect of the unregulated fees for the forensic accounting report of Furzer Crestani dated 3 April 2023 in the sum of $8,360.

1. On the issue of liability for the claim, it was agreed that the motor accident was a "no fault accident" within the meaning of the MAI Act. The claimant sustained injury, loss and damage as a result of the motor accident. There was no contributory negligence on the part of the claimant.
2. Under ss 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim, applying the MAC Act, as $2,687,149.
3. The insurer is to pay claimant's legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 as agreed and as assessed by me in respect of the unregulated fee for the forensic accounting report of Furzer Crestani dated 3 April 2023 in the sum of $8,360.

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

(a) Personal Injury Commission Act 2020;

(b) Personal Injury Commission Rules 2021;

(c) the MAI Act;

(d) the MAC Act, and

(e) Motor Accidents Injuries Regulation 2017.

[1] Chang v McTye [2024] NSWDC 218.

[2] McTye v Ching Yu Chang by his tutor Leo Alexander Birch [2025] NSWCA 3.

[3] Claimant's documents at pages 243-258.

[5] Claimant's submissions in reply at pages 1-7.

[8] Insurer's documents at pages 94-102.

[9] Insurer's documents at page 98 at [32].

[11] Insurer's documents at pages 103-117.

[12] Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 at [83]- [85].

[16] Insurer's documents at pages 94-102.

[17] Claimant's documents at pages 25-47.

[18] Claimant's documents at pages 25-26 at [5]-[12].

[19] Claimant's documents at page 27 at [27].

[20] Claimant's documents at page 28 at [48].

[21] Claimant's documents at page 29 at [56].

[22] Claimant's documents at page 30 at [66].

[23] Claimant's documents at page 31 at [70].

[24] Claimant's documents at page 31 at [71].

[25] Claimant's documents at pages 31-38 at [76]-[141].

[26] Claimant's documents at pages 39-40 at [156].

[27] Claimant's documents at page 41 at [171].

[28] Claimant's documents at page 46 at [247].

[29] Insurer's documents at pages 385-386.

[32] Insurer's documents at pages 386-387.

[33] Insurer's documents at pages 387-393.

[34] Insurer's documents at pages 393-394.

[38] Insurer's documents at pages 702-703.

[42] Insurer's documents at pages 694-695.

[48] Insurer's documents at pages 679-680.

[51] Insurer's documents at pages 685-690.

[54] Insurer's documents at pages 705-706.

[55] Insurer's documents at pages 708-709.

[57] Insurer's documents at pages 439-470.

[58] Insurer's documents at pages 471-483.

[59] Insurer's documents at pages 484-674.

[60] Insurer's documents at pages 575-576.

[63] Insurer's documents at pages 807-810.

[65] Insurer's documents at pages 825-827.

[67] Insurer's documents at pages 828-829.

[68] Insurer's documents at pages 811-814.

[72] Insurer's documents at pages 815-819.

[75] Insurer's documents at pages 820-824.

[76] Insurer's supplementary documents at pages 877-879.

[84] Insurer's documents at pages 52-53.

[85] Insurer's documents at pages 586-587.

[89] Insurer's documents at pages 53-54.

[92] Insurer's documents at pages 731-732.

[97] Insurer's documents at pages 710-711.

[101] Insurer's documents at pages 596-597.

[103] Insurer's documents at pages 57-58.

[104] Insurer's documents at page 597.

[106] Insurer's documents at pages 58-59.

[108] Insurer's documents at pages 59-60.

[113] Insurer's documents at page 599.

[114] Insurer's documents at page 600.

[115] Insurer's documents at page 874.

[117] Insurer's documents at page 875.

[118] Insurer's documents at page 876.

[121] Insurer's documents at pages 64-65

[122] Insurer's documents at pages 65.

[123] Insurer's documents at pages 748-749.

[126] Insurer's documents at page 728.

[127] Insurer's documents at page 736.

[128] Insurer's documents at page 726.

[129] Insurer's documents at page 733.

[132] Insurer's documents at pages 751-752.

[134] Insurer's documents at page 727.

[136] Insurer's documents at pages 74-75.

[137] Insurer's documents at page 735.

[139] Insurer's documents at page 745.

[142] Insurer's documents at pages 77-78.

[143] Insurer's documents at pages 78-79.

[147] Insurer's documents at pages 81-82.

[155] Insurer's documents at pages 87-88.

[157] Insurer's documents at pages 88-89.

[162] Insurer's documents at page 658.

[163] Insurer's documents at page 660.

[164] Insurer's documents at page 663.

[165] Insurer's documents at page 664.

[166] Insurer's documents at page 670.

[167] Insurer's documents at pages 118-134.

[168] Insurer's documents at page 127.

[169] Insurer's documents at page 129 at [2.2].

[170] Insurer's documents at pages 151-158.

[171] Insurer's documents at pages 165-189.

[172] Insurer's documents at pages 135-137.

[173] Claimant's documents at pages 48-55.

[174] Claimant's documents at pages 75-80.

[175] Claimant's documents at page 78.

[176] Claimant's documents at pages 56-74.

[177] Claimant's documents at page 62.

[178] Claimant's documents at page 63.

[179] Insurer's documents at pages 211-231.

[180] Insurer's documents at pages 230-231.

[181] Claimant's documents at pages 81-88.

[182] Claimant's documents at pages 89-126.

[183] Claimant's documents at pages 105-106 at [9].

[184] Claimant's documents at page 104 at [3].

[185] Claimant's documents at pages 104-105 at [6].

[186] Claimant's documents at page 105 at [8].

[187] Claimant's documents at pages 127-136.

[188] Claimant's documents at pages 137-140.

[189] Claimant's documents at page 139 at [1].

[190] Insurer's documents at pages 138-150.

[191] Insurer's documents at pages 159-164.

[192] Insurer's documents at pages 190-210.

[193] Claimant's documents at page 209 at [6.2].

[194] Insurer's documents at pages 3-4 at [31]-[44].

[195] Insurer's documents at pages 4-5 at [45]-[51].

[196] Insurer's documents at page 5 at {52]-[56].

[197] Insurer's documents at pages 5-6 at [57]-[70].

[198] Insurer's documents at pages 6-7 at [71]-73].

[199] Claimant's documents at pages 244-245 at [3]-[26].

[200] Claimant's submissions in reply at pages 2-4 at [13]-[21].

[201] Claimant's documents at pages 246-247 at [46]-[51]

[202] Claimant's documents at page 248 at [1]-[10].

[203] McTye v Ching Yu Chang by his Tutor Leo Alexander Birch [2025] NSWCA 3.

[204] Medlin v State Government Insurance Commission [1995] HCA 5.

[205] Husher v Husher [1999] HCA 47.

[206] Penrith City Council v Parks [2004] NSWCA 201.

[207] Insurer's documents at page 7 at [75].

[208] Fifth edition, 2021 at [1.11.20].

[209] Watts v Rake [1960] HCA 58; (1960) 108 CLR 158.

[210] Purkiss v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

[211] Wilson v Peisley (1975) 7 ALR 571.

[212] Malec v Hutton Pty Ltd [1989] HCA 30; (1990) 169 CLR 1.

[213] Claimant's documents at pages 256-257.

[214] Claimant's documents at pages 31-38.

[215] Claimant's documents at page 36 at [114].

[216] Claimant's documents at page 36 at [115].

[217] Claimant's documents at pages 28-30.

[218] Insurer's documents at pages 278-297.

[219] Claimant's documents at pages 141-242.

[220] Claimant's documents at page 158.

[221] Claimant's documents at pages 165-173.

[222] Insurer's documents at pages 232-249.

[223] Insurer's documents at pages 233-235.

[224] Insurer's documents at pages 238 and 239.

[225] Claimant's documents at pages 259-260.

[226] Insurer's documents at pages 12-13.