MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; common law damages claim; claimant suffered injuries when his vehicle was hit from behind by the insured vehicle whilst the claimant was waiting to turn right; claimant says he suffers short-term memory loss, difficulty with concentration, post-traumatic stress disorder, anxiety and depression and recurrent nightmares associated with nose bleeds; insurer wholly admitted liability for the claim; claimant self-represented; multi-comorbidities; no entitlement to any non-economic loss; claim restricted to past and future economic loss, future loss of earning capacity; parties agree to assessment on the papers; no evidence that claimant lacks capacity; Held - award of $100,000 for past economic loss; no award for future economic loss as not satisfied that claimant's most likely future circumstances, but for the accident, any different to what they are.

Common law claim - Motor Accidents Compensation Act 1999

This determination relates to a claim for common law damages under the Motor Accidents Compensation Act 1999 (the Act).

1. Keith Holmes (the claimant) is a single gentleman 64 years of age who suffered injuries on

21 September 2019 when his vehicle was hit from behind by the insured vehicle whilst the claimant was waiting to turn right into a petrol station. 2. The claimant says that he suffered the following injuries in the motor accient: * cervical and lumbar spine injury; * left shoulder injury, and * concussive head and dental injury.

Costs are allowed in the sum of $37,065 inclusive of GST.

1. He also says that he suffers the following diabilities as a result of his accident-related injuries:
   • pain and restriction of movement to the cervical spine;
   • pain and restriction of movement to the left shoulder;
   • pain and restriction of movement to bilateral hips;
   • headaches;
   • short-term memory loss;
   • difficulty with concentration;
   • post-traumatic stress disorder;
   • anxiety and depression, and
   • recurrent nightmares associated with nose bleeds.
2. The insurer wholly admitted liability for the claim.
3. The claimant has been employed as a law clerk and also has worked in property marketing, finance and security, as well as trading as a self-employed finance broker and property developer, both in Australia and Bali.
4. The claimant has an interest in Arabian Horses and has been involved in breeding and showing those horses. He also participated in show judging and instructing. He says that he has not earned much income from those horse-related activities.
5. The claimant seeks an award of damages for past economic loss, future economic loss and loss of earning capacity. As the claim arises under the Act, he has no claim for past and future treatment, nor attendant care.
6. On 14 September 2021, the claimant lodged an application for assessment of a permanent impairment dispute. The claimant referred injuries to his cervical spine, lumbar spine, thoracic spine and left shoulder for assessment.
7. Medical Assessor Harrington issued a certificate dated 8 December 2022 assessing 8% whole person impairment (WPI) relating to the claimant's left shoulder. In the Medical Assessor's opinion, the claimant's alleged spinal injuries had resolved.
8. On 8 February 2023, the claimant filed a separate application for assessment of permanent impairment with respect to his alleged psychiatric injuries. The claimant was assessed by Medical Assessor Ng who issued a certificate on 4 October 2023 to the effect that the claimant had 6% WPI arising from accident-related post-traumatic stress disorder. Medical Assessor Ng was of the view that, despite some treating evidence to the contrary, the claimant might have a dementia type condition.
9. The claimant's review applications in respect of all of those certificates were refused by the President's delegate.
10. The claimant acknowledges that he suffers from a number of co-morbid conditions including diabetes (diagnosed in 2013), hypertension (diagnosed in 2014) and chronic lymphoccytic leukemia. Although there is no medical evidence in point, I infer the claimant has a reduced life expectancy, for reasons unrelated to the subject accident. He has suffered several falls from horses fracturing his right wrist and right ankle. He has problems with his right hip.
11. The claimant has been self-represented since March 2024 when his previous solicitors ceased to act. The claimant has provided some medical reports and an updated statement dated

31 May 2024 but no other updated evidence or submissions since that time. 12. I conducted preliminary conferences in this matter on 20 February 2023, 15 November 2023, 18 April 2024, 14 June 2024, 4 October 2024, 9 May 2025, and 17 December 2025. An assessment conference was scheduled for 9 May 2025 but did not proceed, as the claimant's mental health condition was such that he could not participate. 13. On 8 October 2024, I received the following message from the insurer:

"The insurer acknowledges that the claimant is currently unrepresented and will likely find it easier to prosecute his proceedings in the Commission rather than the Court.

The insurer however confirms that Dr Aggarwal diagnosed the claimant with dementia. The doctor has suggested that the claimant requires formal and informal supports in funtional aspect of his life.

The insurer has some concern about whether the claimant continues to be a person with the legal capacity to conduct these proceedings. The insurer believes it necessary to raise this issue at this time. The insurer does not however actively press for the matter to be exempt from assessment."

1. On 9 October 2024, I received the following message from the claimant:

"Thank you for the messages. I had NO memory issues whatsoever prior to the accident. I certainly was not a person with any form of dementia prior to the accident."

1. I am in receipt of a report dated 11 September 2024 by Dr Bhavna Aggarwal, staff specialist in geriatric medicine, addressed to Dr Samir Hussein. Under the heading Cognative impairment, Dr Aggarwal says as follows:

"First notice in 2022: neuropsychologist in 2022 did not find any objective evidence to indicate that he sustained a significant traumatic brain injury in 2019 and he was noted at that time it was possibly related to psychology disorder and not related to the brain injury. Ischaemic stroke in June 2023.

MRI done in July confirmed moderate leuconcephalopathy/prominence in the ventricle system which is stable to previous, moderately extensive deep white matter, hyperintensive on T2 and flare of concentrical brain and is known to have occlusive disease of his cartilage which I understand is being managed conservatively.

I note that he has previously seen Professor Nair that in March/April this year and noted to have cognitive impairment, likely fronto-temporal related dementia which I agree with.

Although he performed well, as the interview progressed, he /started to get aggitated and repetitive. When reasoned that his symptoms were likely as a result of fronto-temporal dementia with multiple vascular risk factors including ischaemic stroke, hypertention and Type 2 diabetes, the post-traumatic stress disorder might have been contributory to progression. He has been needing ongoing informal and formal support in managing functional aspects of his life since.

Given the cognitive decline and possible Behavioral and Psychological Symptoms of Dementia in the setting of fronto-temporal dementia, he would benefit from being closer to his friend and family. I understand that he is on the list for Department of Housing. He would benefit from an ongoing input from a psychiatrist but was not keen on it today.

1. On 14 January 2025, I caused the following message to be sent to the parties:

"If the insurer still has concerns regarding the claimant's legal capacity, it should arrange an appropriate neuro-psychological/medical assessment. I am reluctant to assess this claim whilst that issue remains unresolved."

1. I received the following message from the insurer on 30 April 2025:

"The claimant was scheduled to be assessed by Associate Professor Batchelor today. The assessment was to obtain a comment on capacity. The claimant attended the assessment but elected not to proceed with the examination. There is therefore no updated opinion on capacity. The insurer confirms that the claimant has not obtained legal representation or provided submissions in support of his position. The insurer requests that a teleconference be convened to discuss how the matter should proceed."

1. I undertand that, when the claimant was legally represented, the parties' qualified Associate Professor Batchelor, clinical neuropsychologist, who provided a report dated 15 June 2022. Associate Professor Batchelor concluded that the available information and tests performed during the examination provided no objective evidence that the claimant sustained a significant traumatic brain injury following the subject accident. Associate Professor Batchelor concluded that the claimant's cognitive impairment was most likely "secondary to a psychiatric disorder" as to which the insurer submits:

"However, this opinion appears to be primarily premised on her opinion that it was not referrable to an accident-related brain injury."

1. I convened a sixth preliminary conference on 17 December 2025 at which the claimant said as follows:

"I want the claim to be finalised and just want it to go away. I don't want any money. I don't want the repercussions of this case to continue. I don't have the capacity to deal with it. It is making me maniacally depressed. Pressure from my former lawyers and the insurer has placed me into a state of despair. I wasn't like that before the accident. I don't have dementia. I am a victim of a motor accident."

1. The claimant informed me that he declined to participate in the assessment by Associate Professor Batchelor as "he was unwell that day and couldn't face a barrage of questions". The parties confirmed their agreement to my assessing the claim on the papers.

1. Section 52(3) of the Personal Injury Commission Act 2020 (the PIC Act) provides as follows:

"(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with the proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing."

Having regard to Procedural Direction PIC 2, the documents that are before me and the parties' acceptance that the dispute can be determined on the basis of those documents, in the circumstances of this case, I am satisfied that I have sufficient information to proceed on the papers. It follows this is the appropriate course in the circumstances.

1. The following issues arise for my determination in this matter:

(a) the claimant's capacity/ISSUE 1;

(b) amount of past economic loss/ISSUE 2, and

(c) entitlement to and amount of future economic loss/ISSUE 3.

The insurer does not challenge the claimant's credit.

DETERMINATION OF ISSUE 1 - THE CLAIMANT'S CAPACITY

1. I first addressed this issue at the fifth preliminary conference conducted on 4 October 2024. My subsequent report recorded as follows:

"1. The claimant was unable to see Professor Nair as he is no longer available for appointments. Instead, the claimant saw a geriatrician, Dr Bajdan Aggarwal, at John Hunter Hospital recently. Dr Aggarwal has provided a report which will be uploaded.

1. I referred to a report by Dr Samir Hussein which has been uploaded. That report states that the claimant has a diagnosis of post-traumatic stress disorder from the accident which could contribute to cognitive difficulties. Dr Hussain says that the claimant had a brain MRI which indicates atrophy in the frontal and temporal regions. Dr Breakspear, consultant psychiatrist, suggests that frontotemporal dementia is a possible cause of those changes, which will have been reviewed by Dr Aggarwal.
2. The claimant says that he has not seen Dr Breakspear's for some time. He remains dismissive of Dr Breakspear diagnosis and opinion.
3. Ms Kulczycki said that the medical evidence may compel the insurer to make a discretionary exemption application. I explained the import of that to the claimant. I also explained that, if he is suffering from dementia, it may be necessary for a Tutor to be appointed, to conduct the claim on his behalf. The claimant seemed to understand my explanation. He said that he had no lack of capacity before the accident, and that all of his current deficits date from that time. I said that it will be a matter for medical evidence and that his treating doctor's clinical notes may be of assistance. I note the circumstances of the subject accident in which the claimant's head may have struck his steering wheel which was bent. The claimant thinks that he may have briefly lost consciousness and was very dazed."
4. I suggested to the insurer's representative that, if the insurer has doubts as to the claimant's capacity, given that the claimant is self-represented, it could arrange a neuropsychological examination to determine that issue. I noted that the claimant previously was assessed by Associate Professor Batchelor at the instigation of both parties. Pending determination of that issue, the claim was listed for an assessment conference on 9 May 2025, with the consent of the parties.
5. The claimant telephoned me on or about 7 May 2025. I made notes of that conversation which are reflected accurately in the email which I sent on that same day to the Case Officer in the following terms:

I have spoken to the claimant who confirms that he will not attend the AC on Friday. He wants to leave the claim in abeyance for 12 months to allow him sufficient time to recover from his mental health issues. He says that he is on the brink of suicidal. I don't want to ran the risk of aggravating his condition. In the circumstances, I have decided to place the matter in the Stood-Over-List. Please cancel the AC and inform the insurer of my decision."

1. I received an email from the insurer on 30 April 2025 in the following terms:

"The claimant was scheduled to be assessed by Associate Professor Batchelor today. The assessment was to obtain a comment on capacity. The claimant attended the assessment but elected not to proceed with the examination. There is therefore no updated opinion on capacity."

1. At the sixth preliminary conference held on 17 December 2025, Mr Holmes told me that he was unwell on the day of his appointment with Associate Professor Batchelor and couldn't face a barrage of questions.
2. In my sixth preliminary conference report, I recorded as follows:

"1. I referred the parties to the recent decision of Tombek v Insurance Australia Limited t/as NRMA [2025] NSWPIC 501 which confirmed that the Member's role is to assess the claim for damages, not to dismiss the claim and not to case manage it indefinitely. On that basis, I indicated to the parties that I am inclined to assess the claim on the papers, after they each have had an opportunity to provide any further evidence. The parties agreed with that approach..... Mr Holmes seemed to be very relieved."

1. Whilst I am satisfied that Mr Holmes does suffer from post-traumatic stress disorder and cognitive impairment secondary to psychiatric disorder, I do not think he lacks capacity, regardless of whether or not he also suffers from frontero-temporal dementia. I note that

Dr Aggarwal opined that the claimant performed well on mini mental state examination (MMSE) with a score of 28/30. In his conversations with me, the claimant seemed to be lucid and engaged in the conversation. Regardless of whether he is able to give instructions in the formal sense, I am satisfied that he at least has sufficient agency to decide and indicate how he wishes his claim to be progressed and assessed.

1. I had regard to all of the documents list numbered 1 to 19 uploaded by the claimant's former solicitors on or about 7 September 2023 as well as the documents numbered 1 to 8 uploaded by the insurer on or about 19 September 2023 and the additional documents numbered 1 to 12 uploaded by the insurer on or about 15 May 2024. I also have had regard to the medical reports by Drs Aggarwal and Hussein to which I have referred.

1. By submissions dated 27 April 2021, the claimant's former lawyers submitted in relation to Past Economic Loss, as follows:

"Prior to the accident, the plaintiff was self-employed as a financial originator and adviser, working 50 to 60 hours per week. Following the accident, the plaintiff briefly attempted to return to work - after six months off - with a reduced client load. However, he was unable to manage even this, and has been unable to render financial services due to his impaired memory, concentration and cognitive functioning. Prior to the accident, he had been earning approximately $3,000 net per week from commissions, and that amount is claimed from the date of the accident to date.

1. I note that the claimant is the sole proprietor of Lifestyle Property Partners Propriety Limited. Company Tax Returns have been provided for the period 2015 to 2021, as well as the claimant's Income Tax Returns and Assessment Notices for 2020 to 2021.
2. The claimant's former solicitors served a Forensic Accountant's report from Vincents dated

12 March 2024. In relation to that report, the insurer says as follows:

"Vincents' approach assumes that, but for the accident, the claimant would have substantially grown his business (by working additional hours and leveraging changes in the market) and that many of the claimant's declared business deductions should be added back as income. In particular. The Vincents' report suggests that any expenses associated with the claimant's horse business should be excluded as the endeavour was not income producing."

1. The insurer relies on a report of PKF dated 13 May 2024. PKF disagreed with the approach adopted by Vincents to exclude all expenses relating to the claimant's horse business. PKF opined that this approach is inconsistent with the evidence suggesting the claimant worked approximately 20 hours per week for his horse business and most of his travel related to his horse breeding program.
2. Additionally, PKF did not accept that the claimant would have worked for 11 months per annum from the date of the accident until 30 June 2022 due to COVID-19 related travel restrictions. In the insurer's submission, PKF adopted a more appropriate averaging approach to calculate the claimant's likely earnings but for the accident.
3. PKF further disagreed with the assumption adopted by Vincents that the claimant has ceased writing any new or renewed loans as no evidence has been provided with respect to same. As to whether the claimant's business will enter a runoff phase resulting in the claimant's earning no income, PKF opined that this assertion cannot be confirmed, based on the available evidence.
4. PKF calculated the claimant's loss of commissions from the date of the accident until

30 June 2022 at a total of $9,084 net. PKF adopted this calculation by averaging the claimant's commission for 2016 to 2019 ($114,294) and subtracting his actual income received from commissions for 2020 to 2022. The claimant's variable costs also were factored into the calculation. 5. The claimant has not provided a supplementary report from Vincents, nor from his own chartered accountant, commenting in relation to the PKF report. 6. In relation to Past Economic Loss, the insurer submits as follows: * in the claimant's preliminary submissions, a claim is made for a loss of $3,000 net per week. The claimant has not explained the basis of that figure. However, in the schedule of damages provided by the claimant in his preliminary submissions, a claim is made for a loss of $1,000 net per week; * Various Certificates of Capacity are available. Those documents attest to a capacity to perform financial planning work, albeit for a limited number of hours per week. The insurer says that the capacity to perform work of this nature would suggest that any impairment was mild, and * regardless, by 2021, the claimant was able to draw a wage relevantly equivalent to that which he was earning in 2019. As noted in the PKF report, the claimant was able to earn in excess of his average commissions for 2016 to 2019 in 2022. In the circumstances, the insurer says that the claimant has failed to evidence a loss (for which bears the onus of proof) and the claimant's loss is confined to $9,084 net per week. 7. Notwithstanding those submissions, the insurer concedes $77,293.61 for past economic loss (inclusive of tax on statutory benefits), in its submissions dated 14 April 2025. That figure apparently is the sum of the statutory benefits paid to the claimant by the insurer. Noting that it is for the claimant to prove his case, I prefer the analysis and conclusions drawn by the insurer's qualified forensic accountant, PKF, to those of the claimant's qualified forensic accountants, Vincents. Nevertheless, noting the time that has elapsed since the insurer made that concession, I am prepared to round up the award of past economic loss to $100,000 inclusive of superannuation and the Fox v Wood component (for which there is no separate figure provided).

DETERMINATION OF ISSUE 3 - FUTURE ECONOMIC LOSS

1. The plaintiff's former solicitors made the following submissions in relation to future economic loss:

"The plaintiff will turn 60 in October 2021 and is unlikely to return to rendering financial services due to his impaired memory concentration and cognitive function. The work is largely sedentary in nature and as such, the plaintiff had intended to work until his mid-70s prior to the accident. Pre-injury average weekly earnings are therefore claimed until the age of 75 years.

I note the claimant's contention in his statement dated 31 May 2024 (paragraph 58) that, had he not been injured, he would have continued working as he did before the accident, for many years to come, well-past the retirement age.

1. There is no medical evidence that the claimant's impaired memory, concentration, and cognitive functioning is related to injuries sustained in the motor accident. There is medical evidence to the contrary, from Associate Professor Batchelor, whose evidence is uncontradicted and also from Dr Aggarwal, to a degree.
2. In relation to future economic loss, the insurer submits that follows:
   • in his submissions, the claimant asserts that, but for the accident, he would have continued working until 75 years of age earning $3,000 net per week. However, in his schedule of damages provided in his application, the claim for future economic loss was limited to a further 6 years at a rate of $1,000 net per week;
   • with reference to the above, the insurer says that the claimant has failed to evidence an ongoing loss of earnings. The insurer therefore submits that any claim for future economic loss should be rejected;
   • further, and in the alternative, the insurer says that any reduction in the claimant's capacity is referrable to the progression of his dementia and not any accident-related injury;
   • on the information presently available, the insurer makes no allowance;
   • the claimant has asserted an entitlement to past and future superannuation. However, the claimant was effectively self-employed, and
   • to the degree that the claimant makes a claim for losses associated with business profits, the insurer maintains that there would be no separate allowance for superannuation.
3. Noting that it is for the claimant to prove his case, and having regard to the finding I have made in relation to aetiology of the claimant's cognitive impairment and dementia, the claimant has not satisfied me, for the purpose of s 4.7 of the Act, that his most likely future circumstances, but for the accident, are any different to what they presently are. Although there is no medical evidence directly on point, I also have regard to the claimant's various co-morbidities, which I think likely will reduce his (working) life expectancy.
4. For that reason, and having regard to the insurer's submissions, which I accept, I make no allowance for future economic loss.

1. I assess the claim as follows on the above findings:

1. The claimant's economic losses are to be reduced by and the insurer is to have credit for statutory benefits it has paid to the claimant in the sum of $77, 293.61.

1. The insurer is to pay the claimant's regulated and unregulated costs in the maximum amount. If the parties cannot agree upon that figure, the matter can be re-listed before me for argument and submissions in relation to costs, allowed in the sum of $37,065.00 inclusive of GST.