(a) has the injury impacted the claimant's ability to work? If so, to what extent?

(b) has the claimant lost income since the accident to date?

(c) can loss be calculated by reference to either or both accountants reports from Abinash Dhungel of Evidex dated 27 February 2025 and 28 February 2025 for the claimant and Alex Wallace of Forensis Accounting dated 27 March 2025 for the insurer?

(d) if not, is a buffer appropriate to compensate the claimant?

(e) is the claimant entitled to be compensated for employing extra workers as

full-time casuals to make up for his inability to work given that the claimant wholly owned the company?

(f) in respect of future economic loss, will the injuries continue to impact him?

(g) if so, what is the appropriate compensation?

(h) would the claimant have continued to operate the company, but for the injuries?

(i) given the company's liquidation what is the claimant's capacity to earn an income given his injuries, age and experience?

1. The claimant had a varied career before he arrived in Australia in February 1999. As a young man he completed a construction course then enlisted in the Serbian army where he obtained qualifications in radar electronics over a nine year career. Upon resigning from the Serbian army in 1991 he undertook IT and graphic design courses.
2. He operated a printing business until November 1998, when he sold the business to emigrate. He started work soon after arriving in Australia and between September 1999 and 2005 worked in the building industry as a labourer. Between 2006 to 2008 he was a printer and returned to building and he started his own building company in October 2012.
3. His business carried out rendering, waterproofing and concrete remedial work. Initially he worked alone and later hired workers. As of the date of accident the business had five workers including himself.
4. He alleges he suffered injury or aggravation of existing conditions in these body parts:
   • neck;
   • back;
   • right leg;
   • both upper limbs, and
   • post-traumatic stress disorder.
5. After the accident, Dr Marija Maric-Todorovic, his usual general practitioner (GP) referred him for scans, to Dr Renata Abraszko, neurosurgeon and to Dr Blagoja Kuljic, psychiatrist.
6. Dr Abraszko treated him with surgery in 2010 to treat the cervical spine symptoms arising from his 2005 accident. He started his own business in 2012.
7. The surgery was considered successful. Before this accident he was working on average of 40 hours per week undertaking manual work with an additional 10 hours per week administration and management. He works seven days when required. The manual work was intense requiring high physical effort.
8. The business covered Sydney and as far as Wollongong and the ACT.
9. After this accident he could not work for about four months, including three months not driving. Upon returning to work he was undertaking management and administrative duties for an average of 15 hours per week. He does up to 20 hours per week. He cannot do manual work since this accident. He had to employ two workers to cover his position.
10. He could not return to rendering, waterproofing or demolition work.
11. His psychiatric condition includes overwhelming fear in the car. He is hypervigilant and anxious. He avoids peak hour travel to manage his anxiety. He has disturbed sleep, which means he has reduced functioning due to fatigue. It is hard to get out of bed. He lacks the ability to concentrate because of the lack of sleep.
12. At the time of the statement, he was considering selling the business because he could not do physical work anymore and replacement labour eroded his profit margin. He cannot supervise on-site as he used to, which makes mistakes hard to rectify.
13. The business' survival depends on future incoming work. He has been successfully responsible for marketing and client relations, but he cannot manage that anymore since the accident. He is less effective, due to being reluctant to drive, not being able to present himself as a successful person and he feels that has resulted in the company losing jobs. He intended to work until he was 70.
14. The claimant's statement dated 3 March 202 [sic] contains more detail about the accident past and projects his business successfully tendered for. His hours of work were over 40 hours on the tools and supervising and 20 hours administration.
15. After the accident it was difficult to obtain treatment because of the COVID-19 shutdown in South Western Sydney.
16. Travelling from his home in Wetherill Park to jobs in the east and northern beaches required long drives which he could not manage after the accident. He cannot handle the minutiae of running a building business, the need to check quality, or train, supervise and supply workers with equipment and materials. He could not manage customer relations due to anxiety, which was expressed as shaking, palpitations and mood fluctuations.
17. He began to delegate supervisory work to long-term employees. He continued to do admin work but had to delegate payroll and invoicing to his son, Stefan.
18. In 2022 he was winding up a big job but could not motivate himself to locate and tender for other jobs because of his lack of confidence. The company began to run into financial problems in mid-2022, so he borrowed money from his children and a friend to pay wages, contractors and suppliers. He had never done that before. He also used his wife's wages and his savings to maintain the business.
19. The business declined, including incurring expenses from rectifications for mistakes he would not have missed when he was able to supervise. In 2024 he decided to put the company into administration because his psychological condition was not improving.
20. The insurer's questioning related initially to the claimant's health functioning before the accident, particularly in respect of the cervical fusion. He agreed there were limitations due to his cervical spine, which could be symptomatic. He had to avoid lifting too much weight and sudden neck turns.
21. After he began his business, he delegated aspects of work and stuck to what he could do.
22. He told the insurer's counsel that he had begun a company so he had flexibility. He kept himself busy all day painting, rectifying work and sealing. He was not unrestricted when it came to painting, so he chose work he could manage like doorframes or using platforms.
23. Although, he had shoulder pain in 2019 and 2020 that did not stop him working and the condition resolved after he had cortisone injections.
24. In 2015 he had some limitations, which led to him consulting a rheumatologist, but he could manage his work particularly after his body was warmed up.
25. Although he could do the work, his main role was organising labour, sometimes over two jobs at once.
26. Although he was completely physically incapacitated for four months after the subject accident, he had to do the administrative tasks, because that was his responsibility. That was even necessary during the pandemic related shutdowns. This was in relation to questions from the insurer's counsel about certificates of fitness issued around this time which said he was totally unfit for work.
27. He was questioned about the business earnings after the accident and conceded that he had to employ more workers because there were bigger jobs. He was questioned on the minutiae of the conclusions in the accounting reports and tax records, but he was not able to answer in detail.
28. He was asked about his respiratory condition and whether non-accident related health issues could impact on his plans to retire at 70 years. I recollect he denied that the respiratory problems would have stopped him working.

1. The claimant's daughter, Alexandra Milosavljevic provided a statement dated 18 December 2024, which confirmed she had loaned her father $12,000 to meet the company's operation expenses and that she observed that his mental and physical state had deteriorated since the accident. He was no longer a person who family and friends relied on for important decisions. The daughter confirms he struggles to operate a car and that his deterioration is obvious.
2. Mr Stefan Milosavljevic is the claimant's son.[1] He confirms lending his father $167,000 from 2022 to support his business. He also corroborates his father's physical and mental deterioration after the accident in April 2021.
3. She noticed he lacks confidence as a driver and passenger, which was the change from his confidence before the accident.
4. The claimant's wife, Diana Milosavljevic's statement dated 26 February 2025 confirmed that the claimant's wife worked as a cashier full-time for 24 years. She confirms the claimant has deteriorated physically and emotionally since the accident. He is angry and anxious most of the time. He is no longer capable of doing even some of the jobs around the house that he was able to do before the accident. She has loaned him money to support the business after the accident.
5. Ashish Thakur's statement dated 2 March 2025. He has been the claimant's employee since 2020. He confirms that before the accident the claimant was able to provide instructions on how work was to be done, undertake demolition and repair as well as more complicated work on-site. He confirms the claimant cannot do that anymore.
6. The claimant provided two other statements from workers who confirmed that the claimant was not physically or mentally as engaged with the business as he previously was since this accident.

1. The parties provided the workers compensation file including medical reports from the 2005 work accident, which included the claimant's detailed statement setting out the circumstances of that injury and the treatment he underwent including C5 - 6 cervical fusions.
2. On 30 October 2012 the claimant was in another motor accident. He attended his GP complaining of right shoulder, neck, right groin, lower back and right knee pain. Medical records show at the end of 2013 the claimant had persistent neck and back pain since the 2012 accident. There was a flareup on 24 April 2014 so he saw his previous treating spinal surgeon with similar complaints and again in mid-2015.
3. The claimant saw rheumatologist Dr Maxine' Szramkaon on 30 October 2015. She noted his long-standing osteoarthritis. There was some bursitis. Postural problems were also contributing to shoulder, elbow and hip pain. Dr Szramkaon treated him with cortisone injections. In October 2016 there was further cervical pain.
4. In December 2016 he saw his GP about gambling addiction and its sequelae. The GP referred the claimant for a left shoulder ultrasound in late June 2020. The scan showed inflammation of the subscapularis tendon.
5. There is a VCC report dated 9 August 2011 to the respondent workers compensation insurer's solicitors, which concluded that the claimant could not have returned to his

pre-injury job as a construction worker or any heavy work. 6. It identified that he had numeracy, workplace literacy, technical and design skills with an entrepreneurial bent. He had developed a range of alternative skills that are useful in the construction industry. He had already demonstrated that he was competent to run a printing business. 7. The claimant's treating neurosurgeon Dr Renata Abraszko wrote to his GP on

14 February 2013 referring to a rear end accident in early 2013. He developed neck and back pain, which radiated to his limbs. His GP records confirm that this aggravation of his spine and lower back persevered in mid-2014. 8. Dr Abraszko's letter dated 30 April 2015 referred to mid thoracic spine pain. There was also treatment for osteoarthritis in late 2015. 9. By 13 April 2021 the claimant was assessed by respiratory physician Dr Anthony Johnson regarding pulmonary nodules, shortness of breath and bronchiolitis. The claimant was habitually a heavy smoker, but there was no sign of malignancy. 10. The claimant attended the GP on Anzac Day 2021 reporting neck, shoulder, low back and leg pain. An MRI on 30 April 2021 confirmed his cervical fusion was stable with signs of osteoarthritis C6. The GP referred him to his previous neurosurgeon for follow-up. 11. Dr Abraszko wrote to the claimant's GP on 17 June 2021, confirming she had not seen him since 2015. 12. Dr Abraszko's letter to the claimant's GP dated 20 July 2021, where she refers to changes at C6 - C7 level after the accident, but is unconcerned about C5 - C6 level, which she fused after the work accident. She advised exercises and physiotherapy. 13. Dr Abraszko confirmed in a letter dated 16 May 2024 that the claimant's lumbar spine condition from this accident meant that he was permanently unable to perform any job requiring lifting, bending and twisting. He had restrictions in his cervical spine before this accident, but this accident had aggravated that. 14. She supported his application for a disability support pension. 15. The claimant told his GP on 20 July 2021 he was having psychiatric symptoms. 16. The claimant sought further psychiatric treatment after he returned to Australia in September 2021. 17. The claimant's GP referred him to see psychiatrist Blagoje Kuljic, who wrote on

19 November 2021 that the claimant had begun to have intrusive thoughts and nightmares related to this accident. He had become demotivated, fearful and hypervigilant. 18. The claimant reported earlier depression after his work injury, which had resolved. The psychiatrist's opinion was the claimant had symptoms of post-traumatic stress disorder, and this accident was the exclusive trigger cause for those symptoms. 19. He was put on different psychological treatments in 2022. Dr Kuljic wrote on

26 September 2022 that the claimant had been engaging in psychiatric treatment for

post-traumatic stress disorder and taking medication. His treating psychiatrist's letter to his GP dated 18 March 2024 further confirmed the claimant had to resume medication, because the post-traumatic stress disorder symptoms had continued. 20. A further report from his treating psychiatrist dated 4 May 2024 confirmed the claimant's psychological capacity for work is no more than 20 hours per week. The claimant could not maintain focus, needing frequent breaks and rests. 21. The claimant's respiratory physician Dr Anthony Johnson wrote on 17 February 2022 that the claimant demonstrated mild emphysema, reduced lung function and chronic obstructive pulmonary disease (COPD) . He was advised to cease smoking. 22. The claimant's GP wrote a report dated 13 September 2022 providing treatment history including his work related injuries in 2005, at that stage the GP certified he was unfit for work as he had limited capacity for activities of daily living. 23. The claimant's respiratory physician reported on 1 August 2023 that his lung function had decreased in under just two years, and this was confirmed in 2024. The physician despairs of the claimant reducing his cigarette smoking. There is no link drawn between the failure to address his cigarette smoking, which is leading to reduced breath and his psychological condition.

1. Dr Kuljic also provided a medico-legal assessment dated 25 March 2023. He reported that the claimant was not suffering any psychiatric impairments before the accident. The accident as described to the psychiatrist was objectively frightening, because it took place on the M4 at around 70 kmph when a semitrailer smashed into the rear of his vehicle exploding the rear window. Paramedics who attended the accident had advised him to go to hospital but he had refused.
2. At the time of this doctor's assessment, he still had intrusive memories and nightmares. He was strongly fearful and emotional, avoidant of stimuli that could remind him of the accident. He was easily startled, demotivated and that he lost a lot of pleasure and enjoyment in life. He was affected significantly by negative events.
3. Specific to psychological capacity for work, the psychiatrist suggested that the claimant was fit for work but not more than 20 hours per week. He suggests that treatment should continue.
4. Medical Assessor Melissa Barrett certified on 11 December 2023 that the claimant's psychological condition was post-traumatic stress disorder.
5. Medical Assessor Sidorov assessed the claimant and certified on 11 October 2024 that there was mild impairment in his adaptation but Mr Milosavljevic continued to run his business. He has reduced his hours of work, both due to pain issues, as well as avoiding driving in peak hour traffic, however, there has been no evidence of a significant decline in his business. He is able to work in the same position but does not work for more than 20 hours per week.
6. Relevantly, he confirmed the claimant continues to be depressed and suffer post-traumatic stress disorder symptoms from the accident.
7. Psychiatrist Dr Abhishek Nagesh examined the claimant and provided a report dated 30 November 2024 for the claimant's solicitors, who confirmed the claimant's psychological symptoms continue to negatively impact the claimant's work capacity. He opined that the claimant was totally incapacitated for work on that basis.

1. An initial needs report from OT Rehab Consulting dated 9 June 2021 confirmed the claimant had constant neck pain, ringing in his ears, intermittent headaches, was unable to lie on either side, reduced range of motion of the neck and back and decreased left shoulder rotation. The insurer highlight the OT found the claimant was vague about the quantity of hours he spent on admin and managing staff.
2. Assessment of the claimant's workplace physical demands shows he was able to do most things before this accident, except for manual handling above shoulder height.
3. At the time of this assessment, he had no capacity for his physical duties but still performed administration and supervised staff.
4. The closure report from OT Rehab Consulting dated 1 October 2021 concluded that the claimant's return to work goal had not been achieved. The report notes that the pandemic restrictions had impacted intentions to collaborate with the claimant, the OT and GP. The OT's participation fizzled out because the claimant was hard to contact and he travelled overseas from 15 August 2021 to 18 September 2021. His rehabilitation program was terminated because the statutory benefits' insurer declined to fund further treatment, when it assessed his accident related conditions as threshold under the MAI Act.
5. Evidex provided a vocational assessment report dated 28 February 2025. This report assumed the claimant had a total loss of capacity for work due to his psychological and physical injuries from this accident. The claimant's conditions meant that he was unable to meet "standard workplace expectations in terms of productivity, reliability and safe work practices."
6. He could no longer work as an owner operator of his business and he was going to be at a disadvantage on the open labour market because of his reduced adaptability and inability to perform at his previous level. He had also lost the ability to do less intellectually challenging roles such as painting or printing machinist.

Forensic account regarding loss of economic capacity

1. The parties submitted 430 pages of financial records, which I do not have the expertise to assess and interpret. Thankfully, the parties instructed suitably qualified forensic accountants in accordance with the Commission's Procedural Direction 4 - Expert Witness Evidence to examine the claimant's loss.
2. There is a letter from the liquidator appointed to wind up the claimant's business dated

27 November 2024, confirming when the business ceased operating. 3. Evidex provided an assessment of loss of earning capacity dated 27 February 2025 for the claimant's solicitors. 4. The claimant seeks $76,562 past economic loss and $400,541 for future economic loss. 5. This report was based on the assumption the claimant retained partial capacity after the accident to work until 27 November 2024 when the liquidator was appointed. He would have continued to work full-time but for the accident until he was 70 years old. 6. The accountant assessed the claimant's full-time earning capacity in the years 2022 to 2024, before tax, by adopting the claimant's actual adjusted profit for years 2018 to 2021 being $67,036 per annum. Adjusted against his actual earnings his past economic loss is $76,562. 7. He adopts the same annual figure as a total loss each year from 2025 until 2033 when the claimant turns 70. This is subject to adjustments for vicissitudes on the weekly figure. 8. Evidex provided a further report dated 28 February 2025, which addressed the claimant's loss if he had been participating in the roles of a painting trades worker, project builder, builder's labourer and printing machinist. 9. The losses calculated range past earnings value of $296,346 - $309,371, and future earnings values of $516,667 - $595,651. 10. These calculations assume the claimant would have been paid superannuation, if these roles were open to him. 11. The insurer instructed Forensis Accounting's Alex Wallace to produce his report dated

27 March 2025. Mr Wallace opines that the claimant's tax returns are unlikely to provide "a reliable indication of his past earnings from the Business as the wage salary and allowances are likely to have been determined based on tax considerations rather" than referring to the claimant's input into the business. 12. He also picks that the claimant's company Business Activity Statements (BAS) depict large differences between the wages set out in the BAS 2024 statements and the wages expense set out in the profit and loss statements for that year. He did not have enough information to discern the reason for that difference. 13. He also notes unusual expenses and "other non-operating revenue" in 2024. He also does not agree with how depreciation is calculated. In particular, he is critical of the business treating two Mercedes passenger vehicles as work vehicles and added back the related expenses. He recalculated the company's depreciation of the commercial vehicles. 14. Mr Wallace noted that during the 2018 to 2024 years the businesses underlying profit:

(a) demonstrated an upward trend between 2018 to 2021;

(b) was $90,470 on average, during the 2018 to 2021, and

(c) was lowest in 2022 and 2023; and was higher in 2024 at $101,379 before tax than the average of 2018 to 2021 years at $90,470 per annum, before tax.

1. The claimant alleges that the company has been placed in liquidation because it was insolvent and no longer profitable, which was inconsistent with Mr Wallace's analysis.
2. Mr Wallace does not approve of the Evidex approach, being profits lost to the business because of the claimant's loss of economic capacity, because the income increased in the years following the accident. In his opinion increases in the business income after the accident and corresponding increases in staff costs would have impacted the profit. Comparing "but for" and actual adjusted profit as set out in the Evidex report is likely to show the impact of both accident related and unrelated factors.
3. Mr Wallace's opinion is that replacement labour costs would be the appropriate measure for compensation, but the claimant's lawyers have not provided information on what those costs are, although they have particularised that the company hired two men who worked an average of 40 hours each per week to replace the claimant's labour.
4. However, as the claimant alleges the company was only missing his labour only the cost of one work at the average weekly earnings of a full-time construction industry worker at $1,892 per week before tax should be allowed. Mr Wallace also highlights minor differences of mathematical accuracy, which are outside my expertise.
5. Mr Wallace identifies that the number of workers steadily increased from 2021 with six employees up to 17 employees in 2024. He does not have the same information about subcontractors, which the company allows for in its profit and loss.
6. Mr Wallace opines that the extra hires were necessary and the claimant would have been required to spend more time managing and supervising between 2022 to 2024 because the business was growing.

1. Mr Wallace applies an accountant's eye to the various expenses, which may or may not have been legitimate business expenses, and were undeclared payments or benefits to the claimant. The insurer's counsel questioned the claimant about rent being paid to the claimant's son, which the claimant said were legitimate payments because he was storing the business's plant and equipment at those premises.

1. The claimant says he expected to work until he was 70 years old. He claims he was earning $1,676 net per week before the accident.
2. The claimant operated a building business before the accident and attempted to sustain it after the accident by employing replacement labour after the business. This was unsuccessful, although the insurer suggests increased takings indicated the contrary. He claims he suffers physical and psychological injuries and disabilities from the accident.
3. The claimant's business went into external administration in November 2024. The dispute is about whether the claimant ceased operating the business as a result of injuries suffered in the accident.
4. The claimant continues to suffer from permanent impairment from the accident. The psychological injury directly impacts his work capacity.
5. The claimant has been forced to liquidate his company and accordingly, he has no capacity to earn an income.
6. He is unemployable on open labour market because of his age and the injury.
7. The claimant borrowed family funds to sustain his business and employ others to keep the business afloat. The insurer's submissions are that the increased takings after the accident suggest the contrary, but that should be rejected because they represent post COVID-19 earnings but with a higher cost base.
8. It is not unusual for a person to work until 70 years old, given the increasing age pension threshold.
9. The claimant submitted during the assessment that although the business grew exponentially, the cumulation of the claimant's psychological and physical injuries meant that his business became too much for the claimant to manage after the accident.
10. Finally, if I was unable to accept the particularised alleged loss a buffer would be appropriate.
11. Summary of claim for past and future economic loss:

1. The insurer submits there has been no loss of income in the past or diminished capacity to operate a building company. The decision to appoint external administrators was not related to an accident caused incapacity.
2. The claimant told Medical Assessor Barrett that he was capable of working with pain and perform 30% to 40% of his previous physical capacity and managed sales and admin business.
3. His treating psychiatrist assessed him as having 15% permanent impairment, but the Personal Injury Commission's Medical Assessor Sidorov assessed 8% permanent impairment.
4. The insurer submits that having a psychiatric assessment as he alleges is not consistent with the claimant being able to manage a building company as he does, particularly when it has kept growing.
5. He also has non-accident related restrictions due to his existing cervical spine condition. The claimant already suffered emphysema and COPD before the accident and continues to smoke.
6. The insurer submits the main difference between competing accounts reports is the treatment of deductions and expenses. The insurer's accountant adjusted those items.
7. Being a 62-year-old man, with degenerative issues in the neck, back and shoulders, it is logical that the claimant was mainly performing the managerial, sales and supervisory work and his five employees were doing the physical labour.
8. After the accident the business continued to trade and indeed increased its turnover.
9. The insurer submitted that the claimant's treating psychiatrist's medico-legal report on his work capacity should carry weight. It signifies the claimant has 20 hours per week capacity to work on marketing his business from contracts, quoting and bookkeeping.
10. Taking everything into account Mr Wallace calculates that profit in 2024 was $101,379 before tax, compared to the average for the 2018 to 2021 years at $90,470 per annum, before tax.
11. Further, after the accident there was no increase in the external labour costs in total, or relative to its income, in the year following the accident.

1. There were no issues regarding the claimant's reliability or the lay witnesses' evidence. The claimant was doing his best to answer counsel's questions and to provide a picture of the losses he was alleging.
2. The claimant's lay evidence is helpful, because it is based on multiple observations than an on average one hour medical examination or during the assessment conference and the witnesses are closely aware of the relevant facts.
3. The claimant's family and employees speak positively of the claimant's character as well as the negative changes in his demeanour and physical ability since the accident. Those assertions were untraversed, except for the insurer assigning non-accident conditions as

co-causes of his diminished performance. 4. Considering above I found the claimant was doing his best to be truthful and consistent in his evidence and when he was examined, which allows me to accept the impacts and disabilities he describes. 5. I did not find any difficulties in accepting the financial records, but I agree with Mr Wallace's opinion that the claimant's tax returns were determined based on tax considerations rather than referring to the claimant's input into the business.

1. The claimant in the supporting lay evidence satisfies me that the claimant was his business's driving force. Although, his son had input into the business he was not employed directly in the business. He did not have partners or a corporate structure with co-directors.
2. It was the claimant's entrepreneurial drive, capacity for hard work and ease of command that made the business function. The VCC vocation report before the accident supports that, and so does the lay evidence.
3. The lay witness statements described the claimant exhibiting a change of personality, anguish and emotional turmoil since the accident.
4. Four years have passed since the accident. Based on the medical evidence, I accept that because of the accident the claimant experienced flashbacks and depression coupled with continuing physical pain and loss of utility, which continues. I also accept Dr Nagesh's assessment on the claimant's work capacity.

1. The fundamental principle of assessing or awarding damages to an injured person is that a tribunal should assess damages so that they represent no more and no less than a plaintiff's actual loss: Livingstone v Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25, Lord Blackburn at [39].
2. In cases such as Medlin v State Government Insurance Commission[2] and Husher v Husher,[3] 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.
3. There were limitations existing before the accident, but the claimant made his business work by choosing physical work he could do, delegating other tasks and being responsible for administration, job supervision and marketing. He overcame the limitations from his 2005 work injury and created a successful business.
4. The pandemic restrictions in South Western Sydney as well as necessary overseas travel reduced his participation in rehabilitation, but I accept the claimant worked to mitigate his losses by persevering with his business and doing the jobs he could manage despite his pain and reduced function.
5. I find the claimant sustained an impairment to his work capacity from this accident, because his diminished motivation, loss of energy and alteration of his work habits related to the accident, such as avoiding traffic with starting and finishing work early. This led to reduced involvement in the business and early retirement.
6. He is still being treated for pain and psychological conditions more than four years after the accident. I note the treating psychiatrist suggested in 2023 that the claimant was fit for suitable work but not more than 20 hours per week. The claimant's evidence and recent observations of his psychological limitations though satisfy me that he is no longer psychologically fit to administer and market the business or supervise workers.
7. I have reviewed the parties' submissions and reports setting out the claimant's earnings before and since the accident to assess if there is a financial loss.
8. I considered the insurer's submissions that there has been no loss of income in the past or diminished capacity to operate a building company.
9. On the first part of this submission, I accept that the business has grown, but the claimant explained it was due to work being held over because of the pandemic, so it happened despite his reduced capacity. I find it is probably true, because the pandemic produced unprecedented growth in some areas, but it has not been sustainable.
10. Despite the company's growth it is clear from lay evidence with medical support that the claimant cannot operate as he did before the accident. If it was just his physical condition that held him back, I could accept that he could operate indefinitely as the leader and holder of corporate memory for the business. However, the accident has materially contributed to his reduced psychological capacity to operate the business.
11. The insurer's further submission is that the decision to appoint external administrators was not related to an accident caused incapacity.
12. The medical evidence supports an ongoing accident related diminished ability. His evidence is he cannot continue the business due to the accident. The insurer urges me to look at other causes, unrelated to the accident and these are relevant, but the medical evidence is sufficient to find that the accident related injuries and related incapacity made a material contribution to his decision to wind up the business.
13. Since he liquidated his company, he has no capacity to earn an income. I prefer the insurer's forensic accountant's view that the cost of replacement labour is more appropriate to assess the claimant's loss than annualised loss of profit, because that has not manifested, but the claimant's function in the business has reduced and he was forced to rely on delegating work he could not do, leading to more cost.
14. Unfortunately, the parties have not provided details of the cost of the replacement labour the claimant hired. There are generalised costs expressed in the financial records, and

Mr Wallace suggests a gross weekly figure of $1,892. 15. However, the claimant is seeking the total of about $84,000 for the past, because he was able to work and mitigate his loss up to the point where the liquidator was appointed. That is an appropriate amount inclusive of superannuation.

1. The insurer provided a further list of statutory weekly payments with the total gross payment being $16,582.81 of which $1,636 is tax paid. These will be credited to the insurer.

What is the claimant's most likely future circumstance but for the accident?

1. Based on the findings above I accept the claimant will be impaired in his future earning capacity. I also accept based on his evidence about retirement that the claimant would have worked until he was 70 years old.
2. The insurer makes no allowance for future economic loss. The insurer submits the claimant has not provided sufficient evidence that the claimant's most likely circumstances, would be he would have continued to operate the business he was 70, but for the accident.
3. The claimant has submitted his claim for future economic loss on the basis that he has no practical capacity for full-time employment.
4. This submission can be maintained as there is supporting evidence to find it is probable that the injuries arising from the accident caused disabilities so that the claimant has no practical full-time capacity to work due to his age and diminished earning capacity.[4]
5. I accept that the accident related injuries have caused him to be unemployable on the open labour market because of his age and disability.
6. .
7. In NSW v Moss[5] at [87] Heydon JA stated:

"In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task, and the want of evidence does not necessarily result in non-recovery of damages."

1. Further, in Penrith City Council v Parks[6] the Court of Appeal concluded it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine.
2. A cushion or buffer assessment is relevant in circumstances where earning capacity has unquestionably been reduced but its extent is difficult to assess, see Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13.
3. This is a case where it is not possible to make an accurate assessment for the claimant's future economic loss, because other conditions could impact on the decision to retire early.
4. The claimant had consistent employment before the accident thanks to his entrepreneurial, physical and intellectual contribution to his business. However, the claimant's emphysema, COPD and osteoarthritis, which were unrelated to the subject accident would also have a material impact on whether he would have continued to operate the business.
5. It is hard to be precise because as it was said in Moss formulating a buffer "...is an exercise in estimation of possibilities, not proof of probabilities."
6. The buffer should be substantial, because despite the claimant having modest profits from his business according to his financial records, it was apparent from his lifestyle including luxury cars and travel that his earning capacity was substantial. That is a nebulous way to assess his earning capacity, but the lack of precision arises because of the non-accident related conditions and because the claimant's financial records were organised on tax considerations rather than demonstrating profit.
7. Having considered the claimant's difficulties since the accident maintaining employment, and the possible loss of opportunities he may experience in the future, the appropriate buffer for future economic loss including superannuation is $320,000.

1. I refer to the claimant's schedule of disbursements and the parties helpful submissions. I have assessed the claimant's costs and disbursements in accordance with the attached damages and costs calculator.
2. Statutory benefits will be taking into account when calculating costs and disbursements at $16,582.81.
3. The costs calculated based on the Motor Accident Injuries Regulation 2017 on the above amount of damages plus disbursements claimed and less statutory benefits is $57,902.99 including GST.

[2] Medlin v State Government Insurance Commission (1995) 185 CLR.

[3] Husher v Husher [1999] HCA 47; (1999) 197 CLR 138.

[4] Mead v Kerney [2012] NSWCA 215.

[5] State of New South Wales v Moss [2000] NSWCA 133.

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