Chappell v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 419 | Case summary

Chappell v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 419 | Case summary | Zoe

At the time of the assessment, the claimant lived near the hamlet of Gol Gol, NSW in the Sunraysia with her family.
Sunraysia is a region located in northwestern Victoria and southwestern New South Wales, towards the South Australia border.
The region is known for its consistently fine weather and intensive horticulture with irrigation including grapes and oranges. The centre is Mildura, Victoria, which is almost directly across the Murray River from Gol Gol. Entry to Mildura (c .8km) is via a bridge over the river. The closest alternative river crossing is 28 km away. The NSW side consists of more hamlets, apart from the village of Wentworth more than 30 km away.
Mildura is located at long distances from the three respective state capitals, Adelaide. (400km), Melbourne (540km), and Sydney (1,000km). Based on recent ABS data the Sunraysia population is around 90,000 with most people on the Victorian side. The nearest comparable Victorian town is Bendigo (400 km). The nearest comparable NSW towns are Wagga Wagga (560 km) or Griffith (441 km).
Before the accident, the claimant and her husband had a long uninterrupted history of employment at the Mildura Fruit Company.[1]
At the time of the accident the claimant worked as a control room operator during the harvest season between May to November. She usually worked night shifts between 4.30pm to 3.00am sometimes seven days a week, as the company operated 24/7 during the season.
Outside of the harvest season the company employed her in maintenance work from December to April. The hours during the off-season were less than the seasonal work. Evidence from the insurer showed that this work could be episodic, and the claimant could choose how much of that work she did. This left her free to take holidays with her husband and concentrate on family needs.
The claimant's statement disclosed health problems before the accident with her neck, ankles, and both shoulders. In most cases the condition resolved or were not impacting her continuing work capacity.
The claimant's main recreation was riding her Harley-Davidson motorcycle with her husband and friends. She also enjoyed camping, fishing and boating, and caring for her grandchildren.
On Saturday 10 July 2021, while enjoying her motorcycle club group ride on the Sturt Highway between Gol Gol and Trentham Cliffs in NSW, the claimant was involved in an accident.
Several of the group overtook a vehicle which was driving to the far left of the lane, and when the claimant thought it was safe to follow, she indicated right and began overtaking. During the overtaking the insured driver, being an aged man, turned on his right indicator and veered right across her path.
She moved away from the insured driver to avoid him, but he continued veering until he struck the claimant's bike. She remained upright but unstable. The insured driver still veering right hit her again causing her to fall off her motorcycle.
From the description, it appears the driver was unaware he had hit the claimant's bike the first time but he realised his path right was obstructed. Accordingly, he pressed to turn right tipping the claimant from her bike.
This apparent lack of awareness became relevant as the insured driver was involved in an identical accident near the same site the following year. The motorcyclist in that incident died.
The claimant's memory is patchy after the point of impact but she recollects becoming aware soon after that she was in excruciating pain.
Although the accident happened in NSW the local police did not attend. A search of local stations shows the nearest 24 hour station is in Broken Hill over 300 km north of the accident site.
The Victorian ambulance service attended and took her to Mildura Base Hospital.
After various scans she was diagnosed with a fractured left humerus. On 11 July 2022 she underwent surgery, being open reduction and internal fixation of the left proximal humerus. On 9 September 2022 the claimant underwent further surgery to remove the left shoulder hardware, but that surgery was unsuccessful so screws remain in her shoulder. Her surgeon also tried a manipulation under anaesthetic to relieve adhesive capsulitis, but that had limited success.
The accident was during the COVID-19 shutdown with border crossing restrictions between New South Wales and Victoria. During the claimant's oral evidence, she disclosed that after she was discharged from hospital to home it was difficult for her to obtain pain relief and in person medical assistance.
The claimant turned 50 later that year.

[6]

The claimant's statement reports that she experiences constant severe pain, particularly in the left shoulder, which has required two surgeries which have not led to the claimant's shoulder condition completely recovering.
It has been four years since the accident and the claimant has a life expectancy of 34 years and during which she will continue to experience significant physical symptoms.
The accident has impacted her recreational activities in particular, the loss of her capacity to engage in her passion, motorbike riding in the company of friends and Club members.
The claimant had been a motorcyclist since she was 13 years old. The claimant and her husband were members of the Mildura Harley Owners Group. This included trips to Wagga Wagga and Adelaide.
The claimant had just bought a new bike before the pandemic.
She has sold that bike. Her disabilities cause her to feel unsafe to herself and other road users. She was not confident she could be a pillion passenger, although that has recently improved. It is "heartbreaking" she cannot ride any more.
Her other hobbies, fishing and camping have been curtailed. Before the accident she could carry out all aspects of camping, including setting up and packing up campsites, which was part of the enjoyment. She can camp, but she is an observer, not a participant.
Her limitations were obvious for three months travelling in northern Australia in July 2024 for her husband's long service leave. She only attempted to drive once; she could not set up camp; getting in and out of the boat was troublesome; she had to hand her rod to others to reel in fish; she could not view aboriginal artwork located in isolated areas; she could not hang out clothes and she could not undress herself when her clothes became sticky in humidity.
Riding in a boat or bumpy roads meant she had to hold her arm because the bumps would hurt her. She could not play pool in a pub.
The claimant has a husband, two adult children and two grandchildren. The accident has negatively impacted these relationships.
The constant left upper limb pain constantly reminds her that she is restricted in her sleep, personal care and playing with her grandchildren.
The claimant's pain consists of burning and shooting with restricted movement in the left upper limb. This pain, particularly when she rolls onto her left side, and ruminating about the accident disturb her sleep.
Overuse of her right arm compensating for a left arm has made that limb painful. She has gained weight because she is less active since the accident. She sees a general practitioner (GP) once a month and a psychologist fortnightly.
An orthopaedic surgeon advised that platelet rich plasma injections could help, but she has declined that treatment because of the risk of infection. The original treating orthopaedic surgeon can do nothing more for her.
She is in a cycle of extending herself physically, realising her frustration and this leads to embarrassment and sorrow. She loses hope; but starts again.
Before the accident the claimant says she was active and happy; she and her husband were a team, but now she feels useless.
The claimant is restricted in her work capacity and experiences negative financial consequences.
After the accident the claimant attempted to return to work soon after her initial surgery. It was the middle of the harvest. At the end of the season, she was not able to do maintenance work because of her injuries.
The claimant worked solely as a control room operator during each harvest up until May 2024. Before the accident she was able to pitch in with physical tasks on the factory floor.
Before the accident the claimant was resilient and could manage high-pressure environments. After the accident she found she became upset and unable to cope in those situations. Her GP prescribed antidepressants to help her.
In December 2023 she found out about the insured driver causing a further accident which was fatal to that motorcyclist. The distress and guilt she felt as a survivor made it harder to continue to work, and her emotional state and ability to cope diminished. She sought help and was referred to a psychologist who she continues to see.
However, in May 2024 she encountered a work situation which she could not handle. Her evidence was that it was an event she had encountered many times before the accident without her losing her self-control. This time it led to her resigning without notice, and at the time of the assessment she had not returned to MFC.
In late 2024 Zilzie Winery offered the claimant work (via a friend employed by Zilzie) as a Cellar Hand past Red Cliffs in Victoria being approximately 31 km from Gol Gol, with the job to commence in January 2025, which is the beginning of the vintage in Sunraysia. That role required attending before dawn.
Accepting that employment offer was contingent upon her prospective work colleague driving the claimant to and from Red Cliffs, because after the accident she no longer had the confidence to drive in the dark. His employment was terminated, and the claimant's opportunity to test her work capacity was lost.
The claimant is frightened and anxious for what the future holds.
The claimant's ability is diminished in attending her garden and the domestic work tasks.
The claimant completed up to year 10 at Red Cliffs High School and she has no secondary, tertiary or trade qualifications. Aside from the industry specific computer system she used at Mildura Fruit Company, her computer and language skills are rudimentary.
The claimant claims she has no practical capacity for work.
The claimant's medical evidence confirms that she cannot perform physically demanding work or work where she has to move her upper extremities constantly, work above shoulder/head height or lift heavy items weighing more than 2-5kg. She has been psychiatrically incapacitated for work since May 2024.
The insurer's counsel's questioning related to her reported losses, which were inconsistent with the earnings demonstrated in her pay slips, which she had provided in support of her claim.
I noted that she had told her treating psychologist on 7 December 2023 before the accident she and her husband had been planning to work around Australia during his long service leave. She had stated to her psychologist that this was less likely because of the accident.
The insurer's barrister put to the claimant there were some inconsistencies about when the insured driver's next collision happened and when she learned about it. She said she was not sure herself, but she learned about it at work.
He also put to her that the claimant was more capable of doing physical work than she claims. He referred to her helping carry out renovations at rental properties she owns with her husband. She said she could do what she could, but she was restricted.
About her abrupt resignation at MFC he proposed that it was not related to the accident, but rather it was due to being angry with the MFC engineers' boss being unwilling get his people to respond to her requests for technical help. She said that was part of it, but she had dealt with that before the accident without reacting as she did.
Further questions were about her telling her psychologist that she had looked at obtaining work as a bus driver at Port Hedland where her friend was moving to, and the cellar hand role which did not eventuate.
The insurer's counsel put it to her that she could not be too incapacitated if she was willing to attempt to manage a 60 hour week. She said she was willing to try, but in re-examination she said that she would not drive past Red Cliffs in the dark because she was too scared to do so.
The claimant said she had been looking for work including registry on Seek an engaging with an employment agency. Significantly, she was asked about whether she could do her old job in the MFC control room. She admitted she had applied to work that season.
She also said the husband does not want her to return to MFC because of the problems she was having. She would prefer work where she does not have to do deal with the public face-to-face.

[7]

The claimant's husband Craig Chappell provided a statement dated 27 March 2025, which corroborates the claimant's statement.
The husband confirms the claimant after the accident experienced a lot of pain. Initially further up to seven weeks after the accident she had to sleep upright with pillows propping her up on the couch because she could not lie down.
He observed that after the claimant attended physiotherapy, she suffered a lot of pain and needed heat packs and painkillers.
He sees her moving about guarding her arm and shoulder, because she shows pain on her face when she has to move suddenly or unexpectedly. He sees her cry frequently over her inability to ride a motorcycle. Both of them have left the motorcycle club since the accident because the claimant cannot ride.
She is a changed person, as before the accident she was social and outgoing and now she is withdrawn. The intimacy in their married life and conversation has deteriorated.
The claimant depends on her husband to help with her personal care and dress, as well as taking up domestic duties she used to do such as hanging out wet clothing.
Before the accident the claimant was a confident driver and passenger. Now she is nervous doing either.
The couple enjoyed camping and fishing trips together before the accident. The claimant still comes on camping trips, but she is limited in what she can do.
In the second half of 2024 the husband observed during their three month camping and driving holiday in northern Australia how limited she had become. She would become emotional when she could not do these tasks.
The claimant is less active at home since the accident, including reduced capacity for household tasks and gardening. Her friendships and connections with family have been adversely affected because she has withdrawn. Her physical interaction with her four grandchildren is limited since the accident.
At MFC, he was in a position of management, and he heard that the claimant was known as a dedicated worker with a can-do attitude. Her reputation was that she was able to cope with all the physical aspects of the work in and out of season. She was also able to cope with high pressure situations calmly. After the accident the claimant's husband noticed she was "short fused and seem to always stress out about things that would not have bothered her before the accident."
Her husband could not imagine that his wife as he knew her before the accident would have resigned on the spot as she did. MFC does not have a retirement age, and the claimant intended to keep working on a seasonal basis.
Leigh Legg, the claimant's manager, provided a statement dated 30 October 2024. He had been working with the claimant since 1991.
He describes the claimant performing complex and responsible duties, involving seasonally long hours, data entry, problem-solving, and communications in a noisy environment with large teams on different levels. She would also leave the control office when required to assist workers with manual tasks on the floor of the plant.
Before the accident the claimant predominantly worked nightshift but elected to only work day shift after the accident. Mr Legg noticed after the accident that the claimant was physically restricted, which affected data entry and emotionally fragile. She no longer pitched in with manual tasks and was short tempered and unable to cope as she had before.
Mr Legg corroborates the ongoing emotional impact of the accident and the insured driver's subsequent accident. The police had never taken action against that driver for the first accident and the claimant felt guilty because she should have done more to ensure he could not continue to drive. Mr Legg describes it as compounding everything and opines she would have continued in her role at MFC but for the accident.

[9]

16 August 2024. 2. Early records show that he is confident about the claimant's recovery. 3. In most recent report the claimant reported aching pain with wasting, weakness and stiffness in the left shoulder particularly over the left AC joint. This is worse in the mornings and she needs exercises to relieve that pain. 4. She has difficulty lifting her arm above head height. She is unable to lift objects greater than 5kg - 10kg, with the left upper limb. 5. Mr Din opined the claimant had done poorly after the accident and surgery. She still requires physiotherapy to improve her range of motion and reduce pain. She has permanent stiffness, but he opined it would not affect her work capacity or ADLs. His report does not address whether he considered what her work or ADLs involve. 6. The physiotherapy reports from James Huckson describes the exercises for the claimant's rehabilitation, with a first appointment on 14 September 2021. 7. Physiotherapist Denise Krklec's letter to Mr Din confirmed on 10 June 2022 that the claimant was diligent with rehabilitation exercises, but she could not sleep on the left shoulder. There was scar tethering from surgery. She sought advice on what exercises the claimant should avoid addressing that. 8. Ms Krklec's letter to the claimant's solicitors dated 12 December 2023 provided a detailed rehabilitation history since 31 March 2022. The claimant's earliest goals were to return to work and motorcycle riding. Despite Mr Din performing a manipulation under anaesthetic to free the adhesive capsulitis the physiotherapist did not see the claimant's range of movement improve despite her attention to her exercises. 9. The claimant was referred to exercise physiology for a period in late 2022, but she was referred back to physiotherapy when her range of motion and pain did not improve. 10. Ms Krklec's observations were that the claimant was suffering noticeable mental health issues related to her pain and loss of functional capacity. The physiotherapist described the impact the claimant's loss of function was having on her usual ADLs. The claimant required sleeping tablets and "she has lost a significant amount of range and function compared to her previous lifestyle". In her opinion the effect would be permanent. 11. Treating clinical psychologist Dr Mirabel McConchie's letter to the claimant's GP dated

[10]

6 May 2024 confirms the claimant's depression was secondary to post-traumatic stress from the accident. 12. This included the effect of the continuing pain, impact on ADLs and ruminating over the necessities of her compensation claim. There was anger against the insured driver. She has begun "hyperventilating to potential threats to safety of her loved ones, and this can cause issues at times". Her thinking was negative and hopeless, with suicidal ideation. 13. The letter refers to the claimant impulsively resigning from work after 26 years as being the outcome of intense frustration at her job. 14. The psychologist's report dated 24 June 2024 refers to the claimant's history, which involved the impact of her father's drinking on her early family life. This also impacted her connection with her mother. In recent years those connections had healed. 15. The report sets out that the claimant was proud of her job and capacity "to provide efficient and high output effort at all times". Being confined to the control room after the accident led to higher levels of frustration which triggered the sudden resignation. 16. The claimant spoke with the psychologist about how much she enjoyed caring for her grandchildren. 17. Regarding motorbike riding the report confirms that this was a large part of the claimant's personal identity. She describes the pain of losing that capacity. It appears the claimant can be a pillion passenger now. 18. The claimant often presented in tears during counselling, fidgeted when describing the accident, with low mood and her frequent themes were of fear, avoidance and distress about the sequelae of the accident. She was pervasively and intensely fearful of injury to herself and others. She frequently relived the accident. She is hypervigilant almost all the time, which is expressed in physical symptoms. She feels shame experiencing these reactions and symptoms. 19. Dr McConchie opines the claimant still needs treatment including CBT. The ongoing low mood, anxiety and post-traumatic stress disorder makes it hard for the claimant to be away from home, deal with stress and interact with people for long periods. 20. The claimant identifies as a person who is eager to work, but the psychological symptoms will persist and impact her work. This is partly due to pain and her reduced ability to cope with the high-pressure harvest season work she performed at MFC. 21. The parties jointly instructed orthopaedic surgeon Mr Thomas Kossmann to provide a report dated 30 March 2023. 22. He confirmed the claimant has trouble performing acts of self-care including "elimination" which I take to mean cleaning herself after the toilet. She is restricted in all left upper body physical activity, which impacts on her travel, sexual activity, sleep and social and recreational activities. 23. At the time of this examination the claimant was still working, but this specialist raised the possibility that the claimant may become 100% incapacitated in the future, but he could not predict a timeframe. 24. On the claimant's instructions Mr Kossmann reassessed the claimant to provide a report dated 20 March 2024. Her functioning had not improved and was impacting every aspect of her life. He recommended the claimant "abstain from any physically demanding work". 25. Psychiatrist Dr David Weissman provided a joint report dated 3 April 2023 to assess permanent impairment. It details the accident's circumstance. Part of her shock at the accident is that she had commenced to overtake when the claimant had his vehicle well to the left of the road as if he was going to turn left. 26. This report confirms the impacts on ADLs and work capacity. The doctor noted that the claimant overestimated her self-esteem and confidence as high compared to how she appeared to him. She reported diminished libido. At the time of this report the claimant had not had counselling or psychological treatment and the psychiatrist diagnosed chronic adjustment disorder with depressed and anxious mood of mild to moderate intensity associated with mild traumatisation features. 27. Paraphrasing this doctor's opinion, it appears that before the accident the claimant had a good outlook on her life and after the accident her psychiatric prognosis had become uncertain and guarded, but he was optimistic. 28. Dr Weissman provided a second report dated 9 September 2024 solely for the claimant's solicitors. Since the earlier report the claimant had abruptly resigned from her job and she had learned that the insured driver had collided fatally with another cyclist in November 2022. 29. The claimant had commenced psychological treatment, because she was so distressed at this development. However, at this time she was looking forward to starting the cellar hand position in January 2025, which did not eventuate. 30. Dr Weissman's opinion was the claimant withdrew from the MFC job due to work related issues and partly due to the accident - related deterioration in her psychiatric state. The claimant told him that before the accident the work-related issues would not have overwhelmed her. 31. Aspects of her personal life had improved. She also said there was some improvement in her ADLs. She still felt unsafe as a passenger in a car and could not return to motorbike riding. She still had flashbacks to the accident. 32. Dr Weissman noted that the claimant is stoic and downplays her symptoms and she found it difficult to articulate emotional distress. He saw her as depressed, tearful, emotional and distressed. 33. The claimant's insight and judgement is characterised by hypervigilance as well as diminished self-esteem and confidence. He considered her accident related prognosis for post-traumatic symptoms to be poor to fair and fair to moderate for her mixed anxiety and depression.

[13]

The claimant submitted during the assessment after the insurer's questioning that the claim for past economic loss submissions filed before the assessment had not been correctly calculated and sought leave to provide updated submissions after the assessment.
There had been time away from work that was not related to the accident and it appeared the claimant's original economic loss schedule had relied on a generalised idea of the claimant's income before the accident; I gave leave to provide those updated submissions on quantum calculations. The insurer was given time to respond. The following summaries are based those updated submissions.
Based on analysis of the pay records from 2014 until 2020 the claimant worked on average, between 20 - 26 weeks during the season, earning an average of $1,009.07 net per week. A summary of the claimant's pre-accident "seasonal" earnings was provided.
The claimant worked on average between 10-15 weeks during the "off-season" earning an average of $366.17 per week summary of the claimant's pre-accident "off-season" earnings.
After the accident on 10 July 2021, the claimant worked two more days soon after but could not continue; she worked 13.5 hours in the pay week ending 25 July 2021 and 6.9 hours in the pay week ending 8 August 2021. The claimant returned to work in the pay week ending 22 August 2021 and remained at work until the end of the season in mid-November 2021. During the entire six week period after the accident to returning to duties in the pay week ending 22 August 2021, the claimant earned $568.23 net.
After the 2021 season ended, the claimant was unable to perform the maintenance duties that she would previously have performed during the off-season.
The claimant returned to work again for the season in the third week of May 2022. She did data entry and no physical duties, which continued. She worked to around October 2022.
The claimant returned to work again for the season in the third week of May 2023 until the end of the season in or around October 2023.
The claimant's psychiatric injuries worsened in late 2023. She returned to train her "replacement" in April 2024 but continued working for only a short period of time and resigned on or about 7 May 2024.
After the accident, the claimant worked on average, 26 weeks during the season, earning an average of $1,108.30 (excluding 2024) net per week. A summary of the claimant's pre-accident "seasonal" earnings was provided.
The claimant's off-season earnings since the accident were confined to three weeks in late 2021 totalling $349.09 ($116.36 per week).
The claimant submits that in the period between July 2021 and July 2024, but for the accident, the claimant would have continued to work an average of 26 weeks in the "season" earning an average of $1,108.30 and an average of 13 weeks in the "off-season" performing maintenance work at the average rate of $366.17 net per week.
From approximately 8 July 2024 to 1 November 2024, the claimant and her husband undertook a three month holiday, so no claim for past economic loss is made for this period.
From 1 November 2024, the claimant's capacity for work and employment prospects must be "practically" assessed on the basis of the suitable work available in the geographic area in which it was reasonable for her to seek full-time work. The claimant submits that at all times since 1 November 2024 she has had no practical capacity to engage in work.
The claimant's past economic loss is quantified as follows:

[19]

Before the accident the claimant had worked for over 20 years for the MFC during the harvest between May and October in any given year.
The tax information shows the claimant's income varied each year. The claimant's employer records show this variability related to the length of the season and the availability of overtime.
After the accident the claimant took about eight weeks off work and then returned performing administrative duties. The TAC paid her during that period.
The claimant worked 2022 and 2023 seasons and earned an income commensurate with her pre-accident earnings.
In respect to the claimant's resignation in or about April 2024, from MFC the Lime Medical Clinic's records on 6 May 2024 and Dr Weissman's report indicate that the claimant's resignation was referrable to difficulties she had with a supervisor and not related to her accident-related injuries.
Whilst the claimant maintains she resigned from work because of psychiatric injuries caused by the accident, the insurer submits it was because the claimant was frustrated by work politics and elected to join her husband on a trip around Australia. That trip was planned as early as December 2023.
These plans were formulated before any workplace acrimony and the insurer submits the trip, was the main reason for her absence from work in 2024.
Dr McConchie noted on two occasions that the claimant planned to work around Australia but she was not confident she would do this because of her arm pain. The psychologist did not note whether the claimant told her whether she had any psychiatric inability to work.
The insurer submits that the claimant's present unemployment is not accident related.
The claimant claims she was earning $1,200 net before the accident and claims losses associated with her alleged, reduced hours following the accident.
The insurer accepts that the claimant was unable to perform maintenance work after the accident. However, there is no evidence that the claimant's earnings decreased because of her moving solely into the control room.
Whilst the insurer acknowledges the claimant did not commence with Zilzie Wines, the claimant indicated that this was due to being unable to travel to the location and not due to any psychiatric injury.
Based on the pay records the insurer assesses the claimant's losses at $750 per week or $6,000 for the eight-week period only.
In response to the claimant's updated submissions on economic loss, the insurer maintains that it is most appropriate to assess any losses with respect to the claimant's annual income rather than comparing seasons.
The claimant earned more after the accident than she did in the year before the accident with the claimant confirming the accuracy of her tax returns and wage material during the assessment conference.
When the claimant's seasonal and off-season income (for each calendar year) is combined it reveals the following pattern of income which does not demonstrate a loss:

[20]

This demonstrated there was no loss after the first few weeks after the accident.
The claimant's fails to consider that a longer on-season correspondingly shortened the off-season and the amount of money the claimant could earn during an off-season.
The 2022 season was longer than other pre-accident seasons. The claimant's performed more harvest work than before.
The insurer calculates the correct average net earnings was $991.27 per week for seasonal work.
Therefore, the initial six weeks loss should be compensated at that rate.
The claimant's average earnings in the 2020 season were less than the 2019 season despite working the same number of weeks.
The insurer disputes allowing loss from April to 7 July 2024, because the claimant worked before that season started to train her control room replacement. The claimant resigned because she was frustrated with her workplace, but the insurer acknowledges that there is evidence she was previously able to manage those situations.
The insurer submits that the claimant could tolerate the behaviour throughout 2021, 2022 and 2023 so it was not accident related. It is relevant that in 2024 she was in the position for the first time; to elect not to continue working as she had trained her replacement.
The claimant did not always perform off- season work, such as in 2017 for family reasons and in 2018 for travelling.
The off-season work availability would vary due to climate and business requirements. There could be large scale projects or basic off-season cleaning tasks.
When she worked off-season, it was 11.5 weeks on average rather than the claimant's 13 weeks.
The insurer's net earnings schedule shows during the off-season variability in the amount of weekly earnings; between $71.65 to $864.03.
The year before the accident the claimant only worked seven weeks off-season and earned an average of $47.15 per week. The claimant did not explain this income reduction in her evidence. The insurer submits that this is the best evidence of the claimant's off season earning capacity before the accident.
The insurer submits that averaging the claimant's income over the weeks actually worked artificially inflates her income. The insurer submits that the appropriate approach is to average the claimant's capacity to earn during the off-season generally, over the number of weeks available in the off-season.
The insurer submits that at its highest the claimant could have earned $150.11 per week in the off-season. This represents the claimant's average off-season income divided by all weeks of the off-season that the claimant could have worked.
The claimant did not provide any evidence that the work she performed in the 2021 season was an outlier or any specific reason the claimant performed less work during that period. The claimant confirmed that she was permitted to work during COVID-19.

[29]

The law recognises that an award for non-economic loss cannot be perfect because it cannot be calculated precisely like other forms of damages.[2]
The NSW Judicial Commission's bench book on damages summarising the authorities on compensation for non-economic loss[3] and Luntz[4] are helpful in assessing these damages.
There is a statutory cap of $645,000 that limits the amount of non-economic loss damages. However, a tribunal does not calculate the entitlement based on a percentage of that maximum amount, and there is no proportionality.[5] The percentage of impairment is irrelevant to assessing non-economic loss damages quantum.
Mrs Chappell submitted the appropriate assessment is $500,000, and the insurer submitted $250,000.
Four years have passed since the accident. I accept the accident injured Mrs Chappell in frightening and painful circumstances. Since then, she has experienced flashbacks and loss of enjoyment of life coupled with continuing physical pain and loss of utility.
Apart from her physical injuries I consider the fear created and suddenness of the events, and the subsequent fatality carries weight in respect of the emotional traumatic stemming from the accident.
There has been considerable and continuing physical pain and suffering from the claimant's bodily injuries, which leads to frustration and emotional self-admonishment. The claimant alleges she suffers mental anguish and unwelcome intrusions arising from post-traumatic stress disorder symptoms, anxiety, and depression. In addition, there is evidence of a significant loss of amenities and enjoyment. Her husband says her personality is diminished since the accident.
The insurer disputes that the claimant's psychological condition is serious.
The claimant has sought psychological treatment and medication from psychiatrists since the accident. The counselling continues. The psychiatrist's opinions are supportive.
The lay witness statements described the claimant exhibiting a change of personality, anguish and emotional turmoil since the accident. The claimant speaks of her loss of her dreams.
Before the accident the claimant lived in Sunraysia all her life, leading a thriving and uncomplicated life where she worked hard as much as she could, raised her family, socialised with family and friends and enjoyed her hobbies. She was close to her family and partner; enjoying her friendships and work.
I accept her and the lay witnesses' evidence that her pre-accident life was mostly happy and active before the accident. The accident has taken that away in large parts. The insurer speaks of the claimant being able to still go on camping and fishing trips, but I find she is now an observer on those trips, not a participant. Mrs Chappell no longer camps or fishes; i.e. she cannot carry out the minutiae of camping and fishing that make those trips enjoyable.
Regarding the emotional and psychological sequelae along with the anxiety about her future and when on the road the preponderance of medical evidence supports that this is connected with the accident.
During the assessment Mrs Chappell genuinely appeared sad and desolated about the state of her life. She expresses that she feels cut off from people because she is scared of reinjuring herself on the roads and others, being fearful for her family and cannot sexually connect with her husband as she could before.
The medical evidence and her presentation also supports anxiety about her future.

[30]

Dr Weissman's consistent opinion was the claimant was playing down her emotional loss. He opined that she had lost her self-esteem since the accident, but she was not able to express that adequately. 16. In terms of the claimant's physical pain, she consistently records high and continuing levels of left shoulder pain. 17. There were no suggestions in any evidence on how she could mitigate the elimination problem. 18. Being unable to sleep soundly due to this accident is a severe disability. It interferes with repairing the body and mind, impairs brain development, cardiac function and body metabolism, learning, and memory and mood. Mrs Chappell will find it hard to mitigate her daytime condition, manage personal relationships or exercise residual work capacity if she cannot achieve optimal sleep due to the accident. 19. The claimant is still taking strong pain and psychotropic medication and has sought counselling and therapy. It appears she is managing, as far she can, her pain and anxiety with frequent rests, relying on help from others and reduced activity. 20. There was no evidence about whether pain medication was affecting her digestive system. 21. The lay witness statements confirm before the accident that people thought of Mrs Chappell as resilient, unflappable, energetic and engaged with people. She was optimistic about her life before this accident, but now she is chronically tired, in pain, sleep deprived, withdrawn, anxious and pessimistic. 22. I recognise that the accident cost her owning and riding her Harley Davidson, her and her husband's membership of a club and the opportunity to travel with the sport she has loved since she was a girl. 23. Disfigurement is relevant to Mrs Chappell's case. Her photos, and reference to scarring showing it is disfiguring including puckering of muscle tissue under the post operative scar, which was tethering her movements, was noticeable, colour differentiation, visible sutures, but mitigated if she covered the scarring up. 24. I assess the appropriate past and future damages for the claimant at $338,000 for non-economic loss.

[31]

I find Mrs Chappell sustained an impairment to her work capacity. I rely on the claimant's husband and Mr Legg's observations of her limitations and on Dr Kossmann's opinion that the claimant may become 100% physically incapacitated in the future and his recommendation the claimant "abstain from any physically demanding work".
I also accept the claimant worked to rehabilitate herself and mitigate her losses, but despite that she has permanent physical and psychological restrictions. She is still being treated for her pain and psychological conditions more than four years after the accident.
In respect of the claimant's psychological condition and its impact on her work capacity I rely on Dr Weissman's second report dated 9 September 2024, when the claimant had abruptly resigned from her job. The claimant's uncontradicted evidence supports the claimant enjoying a reputation before the accident as a consistently calm presence in the high-pressure environment of the harvest season at MFC.
Dr Weissman's opinion was the claimant withdrew from the MFC job due to work related issues and partly due to the accident - related deterioration in her psychiatric state. I also rely on Mr Chappell's and Mr Legg's statements when they say that the situation that led to the claimant resigning would not have worried the claimant before the accident.
I note the insurer submitted the claimant managed her psychological state at work for three seasons after the accident, so it could not relate to the accident, but I prefer Dr Weissman's and Mr Legg's opinions that the accident sequelae - which includes her own accident related experience reaction to the insured driver's second accident - materially contributed to her loss of self-control and resignation.
I also note the claimant's treating psychologist considers her psychological condition to be pervasive and persistent. Dr Weissman notes in both reports that the claimant's description of herself as confident with high self-esteem is inauthentic belied by her presentation. That evidence enables me to find that the claimant's psychological condition probably could adversely affect her conduct in the workplace, when she faces high-pressure situations and the secondary impact of accident related pain.
I have reviewed the parties' submissions setting out the claimant's earnings before and since the accident.
I accept, based on the insurer's calculations that overall, the claimant has consistently earned more per annum since the accident than she did before the accident.
She did not work every off-season for various reasons, so it would be artificial to calculate the loss of off season work separately. I prefer the insurer's annualised approach.
I accept that the accident caused her to lose the opportunity to work the 2025 vintage at the Red Cliffs' winery, because the accident caused her to be fearful of driving longer distances and in the dark. It is also probable that her physical injuries would have prevented her from doing any tasks outside of data entry in that role. That loss is not quantified, but it can be considered when considering future compensation.
The assessment hearing ended with the claimant possibly returning to work at MFC for the 2025 season. I accept the insurer's proposition there is a good chance that the claimant would be given an opportunity to return to the MFC control room, albeit she would be barred from doing any physical work, in line with medical recommendations.
There is no supporting evidence to establish an actual loss of earnings caused by the accident other than what the insurer concedes is her past economic loss being $6,690.

[33]

In cases such as Medlin v State Government Insurance Commission[6] and Husher v Husher,[7] the High Court 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 earning capacity and, if so, whether that loss or diminution will result in economic loss.
Based on the opinions of Drs Weissman, Kossman and McConchie I accept the claimant will be impaired in her future earning capacity. I also accept based on her husband's evidence about retirement at MFC that the claimant would have worked as long as she wished at MFC each harvest season.
The insurer makes no allowance for future economic loss, except for a small buffer for having occasional time off work. The insurer submits the claimant's most likely circumstances, but for the accident was to continue seasonally with MFC until her husband elected to retire. I do not recall any evidence supporting that proposition.
The claimant has submitted her claim for future economic loss on the basis she has no practical capacity for full-time employment. This submission cannot be maintained as there is no supporting evidence to suggest she has no practical full-time capacity to work due to her experiential and educational background.
The claimant is seeking future economic loss to age 70 at the average 52 work week rate of $1,100 net per week. Therefore $1,100 x 602.8 - 15% being $563,618 plus superannuation. The insurer submits that the claimant could be awarded a small buffer.
This submission is at odds with the claimant's evidence that she could return to work at MFC.
The claimant's submission does not satisfy me the most likely future circumstance is that the claimant would have no practicable work capacity.[8]
The most likely future circumstance but for the accident is that Mrs Chappell could continue in work that suited her past experience. However, Mrs Chappell has high expectations of herself to perform her roles with her previous levels of concentration, commitment and responsibility, including being able to pitch in to help with physically demanding tasks.
The evidence is consistent that she believes she is not doing her job unless she can do all of what she used to do. Due to her efforts aggravating her levels of pain and psychological symptoms this led to frustration, loss of temper, frayed relationships and diminished resilience. The medical evidence supports this continuing.
I accept her injuries and related disabilities will continue to cause her difficulties with her employment even if she fits back in at MFC. It is likely that she will need to take more time away from work, reject opportunities for overtime and be vulnerable to retrenchment.
I reject the insurer's proposition that the claimant could fit into the roles it has suggested. The claimant would be prejudiced on the open labour market, which is restricted to Sunraysia, and probably to Mildura because she is reluctant to travel independently more than a short distance away from home.
That prejudice is due to her age, lack of experience and the need for special arrangements to accommodate her disabilities including time off work and avoiding work that could aggravate her pain. She would also need to work where she can avoid face-to-face interaction, particularly with people she does not know. All the suggested roles require interaction with the public and the advertising for the roles seem aimed at young people.
However, it is not possible to accurately calculate a weekly loss on the data the claimant provided. I do not accept the claimant's submissions on quantum.
In NSW v Moss[9] at [87] Heydon JA stated:

Chappell v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 419;

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Chappell v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 419; (19 August 2025)