Rahman v Stibbard

The issues

1. Mr Rahman says that he suffered physical and psychological injuries in the accident and that he has gone on to develop persisting pain and restriction of movement, particularly in relation to his back, a post-traumatic stress disorder and depression. He claims that his injuries and disabilities continue to have a significant negative impact on his ability to earn an income.
2. The defendant says that at most physically Mr Rahman suffered soft tissue injuries which did or should have resolved within a matter of months of the accident. The defendant relied upon the reports of Dr Thomas Newlyn, psychiatrist, in relation to Mr Rahman's psychological symptoms.
3. At the commencement of the hearing, Mr Rahman handed up a schedule of damages which became Exhibit B. He had prepared this document himself. In large part, it followed the statement of particulars prepared by his former solicitors and filed with the statement of claim.
4. When at the end of the hearing I invited Mr Rahman to explain what he wanted me to decide and why, he said very little other than that he would leave the decision to me. He did not address the schedule of damages he provided at the commencement of the hearing in any meaningful way.
5. The defendant's schedule of damages provided at the commencement of the hearing allowed for only one head of damage in the plaintiff's favour: past out-of-pocket expenses in the sum of $11,262.18. All other heads of damage were said to give rise to 'nil' damages for Mr Rahman. The defendant also provided a schedule of issues at the commencement of the hearing. It stated that the defendant's CTP insurer had admitted liability by notice dated 30 April 2018 under section 81 of the Motor Accidents Compensation Act, 1999 and that no allegation of contributory negligence had been pleaded. It otherwise put all issues in dispute without giving any additional specificity as to how those issues were raised in the pleadings. The defendant's counsel, Mr Ronzani, also handed up and spoke to written submissions at the end of the hearing.
6. The issues I need to address are the following: 1. What are Mr Rahman's injuries and disabilities? 2. Is Mr Rahman entitled to any damages for non-economic loss (or general damages)? 3. Is Mr Rahman entitled to any damages for loss of earning capacity? 4. Is Mr Rahman entitled to any damages for treatment expenses (or out of pocket expenses) for the past? 5. Is Mr Rahman entitled to any damages for treatment expenses (or out of pocket expenses) for the future? 6. Is Mr Rahman entitled to any damages for attendant care services for the past? 7. Is Mr Rahman entitled to any damages for attendant care services for the future? 8. Is Mr Rahman entitled to any Fox v Wood damages? 9. Is Mr Rahman entitled to any damages for loss of superannutaion? 10. Who should pay the costs of the proceedings? 11. What orders should I make?

A. What are Mr Rahman's injuries and disabilities?

1. Because these are disputed by the defendant, it is best to start with what is revealed by the contemporaneous records of Mr Rahman's treating doctors.

A.1 Facts established by the contemporaneous clinical notes, reports, WorkCover certificates and other records of Mr Rahman's treating doctors

1. The histories stated in the medical reports in the Court Book were admitted as facts of the history being given to the doctor but not as the truth of those facts. This limitation on the use to be made of the evidence did not apply to clinical notes. The limitation was somewhat overridden when it was put to Mr Rahman in cross-examination, and he agreed, that he had told the truth to all of the doctors he had seen (T170:30).
2. I find that the following facts are established by the contemporaneous clinical notes, reports, WorkCover certificates and other records of Mr Rahman's treating doctors.
3. The ambulance officers who attended the scene of the accident recorded that Mr Rahman complained of pain to his left breast and lumbar spine, and that they observed a seatbelt bruise.
4. When Mr Rahman saw his GP, Dr Wilton, the day after the accident he complained of ongoing chest pains and a sore back.
5. Dr Wilton sent Mr Rahman for an x-ray of his chest, ribs and thoracic spine. The radiologist who performed the x-ray two days after the accident, Professor John Magnusson, noted in his report that there was a clinical history of a suspected fracture. No evidence of an acute fracture was seen.
6. Two and half weeks after the accident, in a Medical Certificate dated 22 September 2017, Dr Wilton recorded that Mr Rahman's soft tissue injuries to his anterior chest wall, which he referred to as an "airbag injury", had resolved, but that Mr Rahman complained of persistent low back pain and intermittent neck pain. He also noted injuries to Mr Rahman's right wrist, right knee and right ankle.
7. Three and half months after the accident, on 19 December 2017, Dr Wilton saw Mr Rahman and recorded that today's examination confirmed no serious injuries were sustained but that Mr Rahman continued to suffer from significant pain in his back extending from the thoracic region to the lumbar area; that he continued to have pain and swelling in his right wrist; and that his ankles and feet were notably swollen and produced aching with prolonged movement.
8. Five months after the accident, on 9 February 2018, Dr Wilton examined Mr Rahman and recorded that he continued to suffer from lower and middle back pains occasionally extending to the upper part of his back and that his right leg in particular continued to become painful and weak. Dr Wilton noted that his aching back was benefited by regular physiotherapy.
9. A little over six months after the accident, on 16 March 2018, Dr Wilton certified that Mr Rahman had suffered back and leg injuries in the accident and the factors delaying his recovery were worsening pain in his back and legs with any prolonged sitting or driving. He referred Mr Rahman to a specialist in rehabilitation medicine, Dr Seamus Dalton.
10. Dr Dalton was confident that if Mr Rahman could build up his core stability and overall fitness, his symptoms would improve and he would be able to get back to work. He referred Mr Rahman to an exercise physiologist, Mr Luke Bowen.
11. Mr Bowen shared Dr Dalton's optimism. Upon assessing Mr Rahman eight months after the accident, on 2 May 2018, he too was of the view that Mr Rahman would benefit from a comprehensive core, gluteal and trunk strengthening programme. He observed however that Mr Rahman "has nil active coping strategies and feels that pain means trauma or injury".
12. By July 2018, now 10 months after the accident, Dr Wilton was concerned that Mr Rahman had suffered from severe back pain and sciatic pain since the accident, that he could not sit still for more than half an hour, had never had proper analgesics and that he suffered from chronic pain. He therefore referred Mr Rahman to Professor Philip Siddall, who was a Professor in Pain Medicine and the director of the Pain Management Service at the Greenwich Hospital. Professor Siddall's impression was that Mr Rahman had pain in the mid to lower back as well some pain in the right arm and leg. His impression was that there were a number of contributors to the pain. In the absence of skeletal changes on imaging, Professor Siddall said it was difficult to be clear on the underlying pathology but the presumed focus of pain was localised inflammatory changes in the spine with secondary muscle tension. He said that the tenderness in the lumbar spine and right sacroiliac joint suggested that there may have been involvement of the lower lumbar facet joints and sacroiliac joint contributing to the pain. He also noted that Mr Rahman reported some symptoms of post-traumatic stress. Professor Siddall recommended to Dr Wilton that with the ongoing disability and pain Mr Rahman was experiencing, an intensive program such as the one offered at Royal North Shore Hospital would be advisable.
13. Dr Wilton took Professor Siddall's advice and referred Mr Rahman to the pain clinic at Royal North Shore Hospital. It took of number of months before Mr Rahman was assessed as suitable for entry into the program and another couple of months before he could commence.
14. In the meantime, Dr Wilton sent Mr Rahman for an MRI of his lumbar spine at the request of a WorkCover orthopaedic surgeon. The MRI was carried out on 11 September 2018, a year after the accident, by Dr Tej Dugal radiologist who reported that the MRI demonstrated at L1/L2 a small left paracentral disc protrusion associated with left annular tear, and whilst this indented the left hemithecal sac, it did not cause neural compression. The day before, on 10 September 2018, Doctor Wilton had recorded in his notes that Mr Rahman was clearly very distressed and depressed and in obvious constant pain while sitting talking to him.
15. On 5 October 2018, Dr Wilton certified in a report that as a consequence of the accident, Mr Rahman had been seriously disabled and remained so even one year later. He certified that Mr Rahman remained in constant severe low back pain preventing him from sitting more for more than a short period of time and as a consequence he had developed a significant depressive illness.
16. In November 2018 Mr Rahman was assessed as suitable for entry into the ADAPT program at the pain clinic at Royal North Shore Hospital. The assessment was undertaken by Associate Professor Allan Molloy (a senior staff specialist), Dr Andrew Singer (a psychiatrist) and Ms Jessica Castle (a physiotherapist). The ADAPT program is designed to help people with persisting pain to return to work or normal activities; reduce the use of medication and healthcare services; restore general function; improve mood; and learn effective pain coping strategies.
17. Mr Rahman completed the first phase of the ADAPT program in January 2019, attending Royal North Shore Hospital on a daily basis from Monday to Friday for three weeks. Dr Sarah Overton (a clinical psychologist) writing on behalf of the director of the program (Professor Nicholas), reported to Dr Wilton that "Mr Rahman attended the program every day and participated fully"; that "his application of the pain management strategies … was good."; and that "During the program it was noted that Mr Rahman has ongoing significant symptoms of PTSD which he says are holding him back. He should have professional treatment to address these and has been given the details of a relevant service". The service suggested was the Traumatic Stress Clinic in Westmead.
18. On 15 February 2019, Mr Rahman attended Royal North Shore Hospital Emergency Department. According to the Discharge Referral Notes, he presented with lower back pain after pulling out a drawer that day.
19. On 26 February 2019, Dr Wilton certified that when Mr Rahman attended the ADAPT program at Royal North Shore Hospital pain clinic they identified that he was suffering from significant post-traumatic stress as a result of the accident and that this was a major inhibiting factor in his recovery. Dr Wilton noted that Mr Rahman was having additional support from a psychiatrist to treat this problem and that "it is likely he will never be able to return any employment requiring prolonged driving". The psychiatrist was Dr Singer.
20. The next day Dr Singer wrote to Dr Wilton informing him that he had seen Mr Rahman and that Mr Rahman had some residual PTSD symptoms, was "still quite focused on his pain in a hypervigilant way" and that he had been referred to the Traumatic Stress Clinic at Westmead.
21. By 7 March 2019 Mr Rahman had started phase 2 of the ADAPT program and Dr Overton (clinical psychologist) wrote again to Dr Wilton about Mr Rahman's progress. Dr Overton told Dr Wilton that Mr Rahman's scores on psychometric measures were consistent with his presentation and showed a sustained improvement in his confidence to manage pain, but an increased level of catastrophising. She told Dr Wilton that Mr Rahman's scores on measures of mood suggested a mild level of depression and a severe level of anxiety.
22. Between March and June 2019 Mr Rahman attended the Traumatic Stress Clinic at Westmead, as had been recommended by the Royal North Shore Hospital pain clinic. This was a 9 session program of trauma-focused cognitive behaviour therapy. According to a report from the Westmead clinic, written by Dr Dharani Keyan, Clinical Psychologist, and dated 8 February 2021, at Mr Rahman's initial assessment on 21 March 2019 his presentation and the symptoms he reported were consistent with a diagnosis of PTSD, and on further assessment Mr Rahman reported symptoms consistent with a DSM-5 Major Depressive Episode.
23. On 27 June 2019, Dr Wilton prepared a report which set out the following summary of Mr Rahman's injuries, treatment and progress up to that point: In summary, there were no serious physical injuries sustained by this gentleman at the time of the accident. However he immediately developed severe low back pain which persisted. This has finally improved following his attending a prolonged course at the specialised pain clinic at Royal North Shore Hospital. He continues to have ongoing back pain but is now able to tolerated (sic) it much better. He is unable to tolerate any significant lifting or any activity that might put strain to his back and has difficulty with prolonged sitting. He will never be able to return to any occupation requiring significant physical activity or prolonged sitting. He is unable to do any home activities requiring lifting more than 1 or 2 kg and is unable to lift his children or play with them in any more than minor physical activity. He is unable to assist his wife with any daily activities such as shopping or cleaning that may require more than minor physical exertion. In 2018 as part of his management by the pain clinic, he was diagnosed as having a significant post-traumatic stress disorder. This explains his long history since the injury in his having ongoing panic attacks and a degree of agoraphobia and has developed a significant depression as a result. He has flashbacks and will never be able to return to any occupation in which he would be the driver of a motor vehicle for any length of time. He is having ongoing treatment from psychologists. However the prognosis remains unclear.
24. According to Dr Wilton, by 9 September 2019 Mr Rahman's back pain had significantly increased recently despite Mr Rahman doing all the treatments advised from the pain clinic. His mood was holding up, however, because he was seeing a psychiatrist regularly, and he was on a new antidepressant.
25. On 31 October 2019, now a little over two years after the accident, Dr Singer (psychiatrist) wrote to Dr Wilton after reviewing Mr Rahman at the clinic that day. Dr Singer reported to Dr Wilton that Mr Rahman continued to experience low back pain and low mood associated with light headedness and other somatic symptoms, and that he had some symptoms of PTSD largely related to driving and being on the road. Dr Singer reported that Mr Rahman was compliant with medication and the Westmead stress clinic program "seem(ed) to have helped at the time". Dr Singer said, "In summary, his improvement seems to have plateaued.".
26. On 2 December 2019, after seeing Mr Rahman, Dr Wilton recorded that Mr Rahman's back pains were worsening with often significant stabbing pains now occurring.
27. On seeing Mr Rahman a month later Dr Wilton recorded that Mr Rahman had spontaneously developed worsening pain in his lower back, now sometimes radiating into his right buttocks and into his right lateral thigh.
28. At the end of January 2020 Dr Wilton referred Mr Rahman for a CT of his lumbar spine and an x-ray of his right hip. This was undertaken on 6 February 2020 and the radiologist, Dr Nalayini Balendran, reported that "At L5-S1, there is a small, broad-based disc protrusion seen, indenting on the exiting L5 nerve roots bilaterally.".
29. Dr Wilton saw Mr Rahman on 11 March 2020 and recorded in his clinical notes that Mr Rahman had rapidly worsening low back pain radiating to his right buttocks and around to his right groin and that the recent CT scan of his lumbar spine suggested possible nerve impingement at the L5 level bilaterally from a disc protrusion. Dr Wilton came to the view that Mr Rahman was obviously in pain and recorded graphically in his notes that "This gentleman was unable to sit in the chair opposite me for more than 3 or 4 minutes before needing to get up and paste the floor due to the pain in his back".
30. Dr Wilton saw Mr Rahman another nine times from March to July 2020. By 31 July 2020 Mr Rahman had had further investigations carried out including an ultrasound and bone scan. Dr Wilton recorded in his clinical notes of 31 July 2020 that the bone scan indicated inflammatory changes were present on the right side at the level of L3/4 in the facet joint. Dr Wilton recorded that he "confirmed with the patient that this was consistent with his chronic significant pain".
31. By 12 October 2020 Mr Rahman had recently had facet joint steroid injections to his lumbar spine which had resulted in improvement to his back pain, although Dr Wilton said it was still "early days".
32. In the meantime, Mr Rahman continued to see Dr Singer.
33. On 10 March 2021 Dr Wilton recorded that Mr Rahman had been recently reviewed by the pain clinic who recommended assessment for possible nerve ablation.
34. Mr Rahman continued to see Dr Wilton and Dr Singer regularly throughout the rest of 2021 and 2022, and into 2023.
35. Dr Singer provided a detailed report on 1 September 2022 about his treatment of Mr Rahman, the progression of his disabilities and his prognosis which I refer to below. He also provided a further short report on 14 September 2023.
36. Dr Wilton provided further WorkCover certificates in February, June and August 2023.

A.2 Dr Wilton (GP) and Dr Singer (psychiatrist) have been Mr Rahman's main treating doctors

1. The above chronology demonstrates that both Dr Wilton and Dr Singer have had a long and ongoing involvement in Mr Rahman's treatment and care.
2. In the case of Dr Wilton, this has been since the day after the accident - a period of 6 years up to the time of the hearing. The clinical notes and records of Dr Wilton show that over that period he has seen Mr Rahman repeatedly and regularly; that he has regularly considered Mr Rahman's fitness for work and completed WorkCover certificates; that he has referred Mr Rahman to many specialist doctors and other health professionals; and that he has received reports and advice from many specialist doctors and other health professionals. If any doctor has been in a good position to assess the nature and progression of Mr Rahman's injuries and disabilities arising from the accident over time it is Dr Wilton.
3. In the case of Dr Singer, he has been involved in Mr Rahman's care since November 2018 - a period of almost 5 years up to the time of the hearing. Dr Singer first saw and assessed Mr Rahman on 15 November 2018, prior to Mr Rahman being accepted into and participating in the ADAPT program run at the Pain Centre at Royal North Shore Hospital. Since then, Dr Singer has seen Mr Rahman repeatedly over that almost 5 year period. Dr Singer's repeated interactions with Mr Rahman over that period have placed him in a good position to assess the plaintiff from a psychiatric point of view.

A.3 Opinions of Dr Wilton and Dr Singer about Mr Rahman's injuries and disabilities

1. Dr Wilton has charted the course of Mr Rahman's injuries and disabilities and his own opinions in his clinical notes, letters of referral to specialists, WorkCover certificates and other records, many of which I have referred to in the above chronology.
2. By way of summary, on 22 September 2017 Doctor Wilton described Mr Rahman's diagnosis or description of injuries as persistent low back pain - mechanical persistent intermittent neck pain with injuries to the right wrist, right knee and right ankle. On 19 December 2017, Doctor Wilton was of the view that Mr Rahman continued to suffer from significant pain in his back extending from the thoracic region to the lumbar area; that he continued to have pain in his right wrist; but that his main difficulty were his ankles and feet which continued to be notably swollen and produce aching with prolonged movement. On 9 February 2018 Doctor Wilton was of the opinion that Mr Rahman continued to suffer from lower and middle back pains occasionally extending to the upper part of his back, and whilst he had problems with both legs his right leg in particular continued to become painful and weak. On 16 March 2018 Doctor Wilton certified that Mr Rahman had suffered injuries to his back and legs in the accident and that he was unable to do any driving whatsoever due to the worsening pain in his lower back and down his right leg. On 9 July 2018, Doctor Wilton was of the opinion that Mr Rahman suffered from severe back pain and sciatic pain. On 10 September 2018 Doctor Wilton was of the opinion that Mr Rahman was depressed and in obvious constant pain. On 24 September 2018, Doctor Wilton was of the opinion that Mr Rahman was in obvious significant pain and unable to sit still and that he was becoming more and more depressed. On 26 February 2019, Doctor Wilton was of the opinion that Mr Rahman was suffering from significant psychological symptoms of depression and anxiety associated with post-traumatic stress syndrome due to the original motor vehicle accident. On 27 June 2019, Doctor Wilton was of the opinion that Mr Rahman did not suffer serious physical injuries at the time of the accident but he immediately developed severe low back pain which has persisted, was diagnosed as having a significant post-traumatic stress disorder, was having ongoing panic attacks and a degree of agoraphobia, had developed a significant depression and was having flashbacks. In December 2019 Mr Rahman's back pain worsened, moderating in early March 2020 that then worsening in mid March 2020 with pain radiating to his right buttocks and to his right groin. On 31 July 2020, Doctor Wilton was of the opinion that a recent bone scan indicating inflammatory changes was consistent with Mr Rahman's chronic significant pain. By 10 July 2020 one Doctor Wilton accepted that Mr Rahman was suffering from and a worsening of his depression. On 22 February 2023 Doctor Wilton saw the opinion that Mr Rahman continued to suffer from significant low back pain that had not been relieved by any modality to date, and that he was unable to drive more than half an hour because of post-traumatic stress from the accident and worsening back pain from prolonged sitting.
3. Having regard to that short summary and all of Doctor Wilton's notes and records, many of which I have referred to, Doctor Wilton is clearly of the opinion that whilst Mr Rahman did not suffer "serious" physical injuries in the accident, he did suffer injuries to his back, right wrist, right knee and right ankle which have caused him to develop chronic back pain and pain in his legs. Further, that the trauma suffered by Mr Rahman in the accident, together with his ongoing chronic pain, has caused him to become depressed and to develop a post-traumatic stress disorder.
4. Dr Singer's various clinical notes and reports to Dr Wilton from 15 November 2018 onwards are referred to in the above chronology. On 1 September 2022, Dr Singer provided a detailed report to Mr Rahman's then solicitors about his treatment of Mr Rahman, the progression of his disabilities and his prognosis. Dr Singer mentions that he had provided Mr Rahman's solicitors with a report dated 4 November 2020, however a copy of that report is not in evidence.
5. In his report of 1 September 2022, under the heading background, Dr Singer said: Mr Rahman was involved in a motor vehicle accident on 4 September 2017. He was injured in a head-on collision which occurred while he was working as a taxi driver. The other driver was intoxicated and ran into him. He has continued to experience chronic low back pain radiating to the left leg and wrist pain since the motor vehicle accident. These injuries have been complicated by the development of major depression and posttraumatic stress disorder.
6. He then set out the progression of Mr Rahman's disabilities and treatment in some detail.
7. Dr Singer then gave his prognosis: It is now almost four years since he first attended our clinic on 15 November 2018. In that time he has had multidisciplinary treatment, trials of medication, he has attended physical therapy and specific trauma-focused therapy. Mr Rahman has improved to some extent, however he still has persistent symptoms of depression, PTSD and chronic pain. I support Dr Brooker's suggestion that he continue to engage with Exercise Physiology to improve fitness and core strength. In my opinion he will continue to require ongoing treatment including physiotherapy, psychology and psychiatry, and continue to to require psychotropic medication in the long term. While it is difficult to be certain about his prognosis, given the comprehensive treatment to date, I do not think his condition will change very significantly.

A.4 What does Mr Rahman's wife say about his injuries and disabilities?

1. Mr Rahman's wife, Mrs Yeasmin, struck me as a most impressive witness. She gave evidence in the form of a written statement and oral evidence at the hearing. In giving her oral evidence, she impressed me as being careful, thoughtful, honest and straightforward, giving her evidence in a calm and dignified manner, speaking directly and unhesitatingly to answers posed to her in cross examination. I have no hesitation in accepting her evidence. Her evidence was that her husband has been a different person since the accident. She measures this particularly against his interactions with their 2 sons and his participation, or more lack of participation, in their home and family life.
2. In her written statement (dated 21 January 2021) Mrs Yeasmin said that before the accident her husband attended to almost everything around the home including cooking, cleaning and helping her take care of their children. He took them out every day. This was in addition to him working full-time. He was, she said, a very dedicated husband and father. She said that after the accident he was "extremely limited in the housework" and accordingly she had to undertake "basically all aspects of the housework". Since the accident she has observed her husband always complaining about being in pain. She has seen that he cannot sit for too long; that he has had to lay down to rest a lot; that he also has had to stand up and walk around to ease his pain, but that he cannot stand in one spot for too long either. She said that he does not drive long distances because it aggravates his pain; he has been withdrawn and does not socialise with his family as he did before the accident; he is mostly at home. She has found that he is very cranky as a result of being limited in what he is able to do.
3. In her oral evidence Mrs Yeasmin said that after the accident gradually Mr Rahman ended up with "all this pain" and "then, like doing simple things - maybe just washing dishes or … cleaning the floor - that make him uncomfortable. He slowly stopped doing those things." (T137).
4. In relation to the children, by way of example, Mrs Yeasmin said: (T138) But those things, like, with children, like, be there as a father, you know. Just play with them. Go to soccer field. Go to playgrounds. Simple things. Slowly he even starts just stopping those things as well, like, he's not comfortable pushing the swing any more. He's not comfortable going up and down the slide any more. Things like that. So he slowly stopped them as well. Now both boys go to school - primary school. If there's any, like - like the carnival, or parents' teacher meeting, he wouldn't attend them. (T138-139) Just more like personal things, you know, my elder one, when this accident happened, my elder one was like four and a half years old. So, I would say he had the best childhood with his dad, like playing, rolling on the floor, you know, reading a story book. Simple things that are part of your life, but most important things. So at that time, my little one was like six months old. So, I can say that my little one never ever experienced those things. … Just like - it's like playing with kids, rolling on the floor, it's not comfortable for him anymore. He said, like, doing those things trigger his pain. So like doing anything this trigger his pain, and that trigger his mood as well. Like he's got mood swings. He's not happy. Like, I need to understand that, yeah, he got pain and everything, but for kids it's sometime - it's hard to convince them that dad is not there, because dad cannot do it anymore. So, just maybe just reading a story book and lie down with them on their bed, he's not happy because the bed is so soft for him. It's not comfortable for him anymore. So, tiny things like that. Yeah. So, I would just say like before the accident and after the accident, familywise, like for me, he's kind of like ups and down person now. He's not the same person anymore.
5. And more generally, by way of example (T139-140) So, for me it's like - for him it's like, I don't understand him anymore. I don't understand him for, like, he's going through a pain. The fact that he can - he didn't have any cut, or he didn't have any broken bone, you know. So, it's not like visible. So, of course, I don't see it, but of course I can feel it. Like I can understand, like here he is in pain. But those things like sometime does make him really aggressive. Really, like, unhappy. …

A.5 What does Mr Rahman say about his injuries and disabilities?

1. Mr Rahman gave sworn evidence at the hearing and was cross-examined.
2. He was not really challenged about his evidence to do with his injuries and disabilities. A good deal of his cross-examination involved asking him to confirm the events set out in the chronology prepared by the defendant (Exhibit 2), which he did, and the medical certificates of Dr Wilton.
3. His own evidence about his progress was generally consistent with the contemporaneous records of his treating doctors, which I have summarised in the chronology set out earlier in these reasons. He was at times argumentative and hesitant to answer some questions directly in cross-examination, but one might expect that of a litigant in person who felt strongly about the righteousness of his case in the face of constant doubt and questioning.
4. As to the question of his mental state, Mr Rahman gave evidence that he was still recalling flashbacks and memories of the accident. His evidence was that the year 2020 was a particularly bad year when he suffered a lot of depression and negative thoughts. He said he was still suffering negative thoughts at the time of the hearing, having nightmares often and waking in the middle of the night. In cross-examination, he said that his physical condition as well as his mental condition fluctuated. Sometimes he has a good day, and sometimes a bad day.

A.6 Why did Mr Rahman stop working in February 2018?

1. It was put to Mr Rahman in cross-examination a number of times and in different ways that he went back to his normal life more or less immediately after the accident, including going back to or continuing work, and that he only stopped working because he started to receive weekly workers compensation payments. Mr Rahman denied this. The inference the defendant sought to draw from this line of questioning was that Mr Rahman stopped working because he was receiving workers compensation payments, and not because he was unable to work.
2. It is common ground that Mr Rahman stopped working altogether in February 2018.
3. The suggestion that he stopped work out of choice and not because he was unable to work runs counter to the objective evidence. That objective evidence includes the records of Dr Wilton, the available financial records of the plaintiff's income and the workers compensation insurer's records. It also runs counter to the evidence of the plaintiff's wife, Mrs Yeasmin.
4. By February 2018 when the plaintiff stopped working altogether, the chronology set out earlier in these reasons shows that when Dr Wilton examined the plaintiff on 22 September 2017 (18 days after the accident) he had persistent low back pain and persistent intermittent neck pain, problems with his right wrist, right knee and right ankle. Dr Wilton certified that Mr Rahman was fit for his pre-injury duties with restrictions that included "unable to sit constantly for more than 2 hours". He recommended that he have physiotherapy. When Dr Wilton examined Mr Rahman again on 19 December 2017, he continued to suffer from significant pain in his back, continued to have pain in his right wrist and had notably swollen ankles and feet which produced aching with prolonged movement. According to Dr Wilton, this meant Mr Rahman could only tolerate 20 hours of work per week as a casual driver. All of this notwithstanding that the plaintiff had been having treatment with the physiotherapist as Dr Wilton had previously recommended. Dr Wilton saw Mr Rahman again on 9 February 2018. Mr Rahman continued to suffer pain in his back and legs, particularly his right leg. On that day Dr Wilton completed a WorkCover form certifying that Mr Rahman had capacity for some type of employment for 5 hours a day 5 days a week but had a sitting tolerance of only one hour and that he was "unable to drive safely due to worsening right leg pain". Dr Wilton saw Mr Rahman again on 16 March 2018 for what he recorded in his note as a "long visit". He recorded in his clinical notes that Mr Rahman "is now unable to do any driving whatsoever due to the worsening pain in his lower back and down his right leg". He certified that he had no capacity for any work and referred him to Dr Dalton, a specialist in rehabilitation medicine.
5. The available records of the plaintiff's income show that his gross fares as an Uber driver decreased significantly in September and October 2017 before taking a dramatic drop in November, a substantial increase in December, a significant decrease in January 2018 and a further decrease in February 2018. I will refer to these records in more detail later in these reasons.
6. Mrs Yeasmin was asked about her husband's return to work in cross-examination. She agreed that he went back to work 10 to 12 hours after the accident, but said that his shift had been already allocated and he did not want to miss out on it. She said that her husband went to see his doctor the very next day because of his pain and he continued to drive taxis but it was not continuously and mostly on and off (T145). She said that in the 23 weeks after the accident she went to Bangladesh for 2 ½ months, from the end of October (T146). Her husband went to Bangladesh with her and her children to drop them off. He stayed for 7 to 9 days. Whilst she was in Bangladesh and Mr Rahman was back in Australia they used to make video calls to one another. Based on those calls, Mrs Yeasmin said that the plaintiff was at home most of the time. She recalled that on one day there was a power cut at their home in Australia. Mr Rahman made a video call to Mrs Yeasmin to tell her about it. Mr Rahman was in the unit. When she called her husband back a couple of hours later he was still in the unit on his bed. The power cut lasted for more than 24 hours or maybe something like that and during this time Mrs Yasmin made video calls to her husband and found that he was still in the unit and did not go anywhere (T147 - T148). When she returned to Australia, Mr Rahman was working at that time, but not like before. "He was most of the time at home at that time" (T149).
7. Whilst it is common ground that Mr Rahman stopped working totally in February 2018, the record of payments made by the workers compensation insurer (EML) shows that Mr Rahman was not paid any weekly workers compensation payments until 12 October 2018, at which time the payments were backdated to 12 April 2018. Those records are consistent with what Mr Rahman told Ms Jessica Castle, physiotherapist, who conducted a long interview on 20 December 2018 in preparation for Mr Rahman's participation in the Royal North Shore Hospital pain clinic ADAPT program. Mr Rahman told Ms Castle that he had been living on savings up until October, had used most of them up and had loans from friends, but recently WorkCover had been approved and he was being paid weekly.
8. Having regard to those matters, I do not accept that the plaintiff stopped working in February 2018 out of choice.
9. I find that Mr Rahman stopped working because the injuries he received in the accident prevented him from working.

A.7 What do Mr Rahman's medico-legal reports say about his injuries and disabilities?

1. On 16 July 2018, Dr Peter Giblin, an orthopaedic surgeon, provided a medico-legal report after seeing Mr Rahman on 11 July 2018 at the request of his then solicitors.
2. After setting out a history consistent with the chronology set out earlier in these reasons, and the results of his examination, Dr Gilblin's provisional diagnosis was: … he has the provisional diagnosis of a soft tissue injury to his thoracolumbar spine with persisting symptomology in his right lower extremity, reasonably causally related to the subject road traffic accident.
3. Under the heading "Prognosis", Dr Giblin said: His condition is stable and his general prognosis is not unreasonable except, his symptoms are going to persist in a recurrent fashion, being present in terms of exacerbations and remissions, associated with permanent physical limitations, the prospect of long term deterioration, and possible future surgical concerns. Specifically, he is permanently unfit to load his axial skeleton in a heavy repetitious impact activity or be exposed to heavy construction work. He would be fit for a sedentary work environment, avoiding the aforementioned physical restrictions and one in which he can change his body habitus at will.
4. Under the heading "Treatment and Management", Dr Giblin said: The mainstay of his treatment will be common sense based self-imposed physical restrictions. In his current environment, I assess him as being independent in terms of his daily personal and household activities but this will change as his injuries deteriorate and when his domestic responsibilities are enlarged. His ongoing medical management will continue to be conservative and symptomatic and directed by his family doctor, assisted by associated health workers and necessary specialists as required from time to time.
5. After Dr Giblin had provided this report, Mr Rahman was seen by Professor Philip Siddall, a Professor in Pain Medicine and the Director of the Pain Management Service at Greenwich Hospital who wrote to Dr Wilton with his report (on 15 August 2018) and had an MRI of his lumbar spine (on 11 September 2018) at the request of a WorkCover orthopaedic surgeon. I have already referred to Professor Siddall's report.
6. Both the MRI report and Professor Siddall's report were then given to Dr Giblin, who wrote another report (on 3 December 2018).
7. Dr Giblin said about the MRI that: … the MRI scan findings at Ll/2, are consistent with the history of injury and ongoing symptoms in the lumbar area
8. Having considered both the MRI and Professor Siddall's report, Dr Giblin said that he had no reason to change the general thrust of the comments and opinions he had expressed in the body of his previous report.
9. On 6 May 2019, Dr John F Davis, Consultant in Occupational Medicine, provided a medico-legal report to Mr Rahman's solicitors after seeing the plaintiff on that day. Whilst Dr Davis describes himself as a consultant in occupational medicine, he is a general practitioner.
10. Dr Davis diagnosed Mr Rahman as having mechanical trauma to his lumbar spine, soft tissue injury to his thoracic spine, a resolved strain injury to his right wrist and unrelated pathology in the right great toe. Dr Davis said that Mr Rahman's injuries were consistent with the car accident and that he had achieved maximal medical improvement.
11. As regards Mr Rahman's work capacity, Dr Davis said that due to Mr Rahman's restrictions with regard to prolonged posturing such as sitting or standing, as well as bending, lifting any heavy objects or working in confined or awkward spaces, he considered that Mr Rahman was disadvantaged on the open labour market as a result of the accident and would not be able to work as a taxi driver, a waiter or a barista. Dr Davis believed however that Rahman would be capable of undertaking work within his restrictions and with the ability to change postures frequently as required for comfort.
12. On 27 July 2019, Kate Glancey, Psychologist, provided a medico-legal report after seeing Mr Rahman on 28 June 2019.
13. Ms Glancey gave a diagnosis of Post-traumatic Stress Disorder and Adjustment Disorder with Depressed Mood as a direct result of the accident.

A.8 Independent medico-legal report of Dr Saboor, psychiatrist

1. On 15 July 2021, Dr Assad Saboor, psychiatrist, provided a detailed report to icare Insurance & Care NSW after seeing Mr Rahman on 7 July 2021.
2. Dr Saboor diagnosed Mr Rahman as having sustained a primary psychological injury of post-traumatic stress disorder as per DSM-5 diagnostic criteria (PTSD), directly related to the car accident on 4 September 2017.

A.9 What do the defendant's medico-legal reports say about Mr Rahman's injuries and disabilities?

1. The defendant relies heavily on the reports of Dr Rimmer, orthopaedic surgeon, Dr Keller, occupational physician, Dr Thomas Newlyn, psychiatrist and Mr Defina, clinical and vocational psychologist.
2. Because I do not accept their opinions I will need to address their reports in some detail.
3. I will start with Dr Rimmer.

Dr Rimmer

1. Dr Stephen Rimmer, an orthopaedic surgeon, prepared 4 medico-legal reports: two on 14 August 2018 after seeing Mr Rahaman on 8 August 2018.; and two on 27 April 2020 after seeing Mr Rahman again on 15 April 2020.

Dr Rimmer's reports of 14 August 2018

1. In his longer report of 14 August 2018, in answer to the question "5.Due to the injuries in this accident, what are the claimant's current disabilities?", Dr Rimmer stated "I do not believe the claimant has any current disabilities. In my opinion he clearly demonstrates abnormal illness behaviour.". In answer to the question "9. Your diagnosis in relation to the injuries sustained in the accident?", Dr Rimmer stated "1. Abnormal illness behaviour. There were gross inconsistencies in his history and presentation today. 2. Resolved musculoskeletal strain thoracolumbar spine. 3. Resolved soft tissue injury right wrist. 4. Resolved soft tissue injury right foot.". Dr Rimmer ended his report by making the apparently unsolicited comment that "Mr Rahman in my opinion clearly demonstrates abnormal illness behaviour. I do not believe he has any genuine ongoing symptoms/disabilities. In my opinion he is seeking financial gain.".
2. In his short report, Dr Rimmer assessed Mr Rahman as having 0% whole person impairment.
3. I do not accept Dr Rimmer's opinions for the following reasons: 101.1 Dr Rimmer's opinions are based on an incorrect or incomplete history in a number of respects: 1. Dr Rimmer says in the introduction to his report that it is based on the history provided by Mr Rahman, the appropriate clinical examination and "the documentation provided". Dr Rimmer does not say what that documentation was, nor is it described in other evidence. In those circumstances, it is difficult to say which part of the history recorded by Dr Rimmer was provided by Mr Rahman, and which part came from the documentation. 2. Whilst Dr Rimmer correctly records that an ambulance attended the scene of the accident, the history he was given appears to be incomplete in that he makes no reference to the fact that the ambulance officers who attended the scene recorded that Mr Rahman complained of pain to his left breast and lumbar spine, and that they observed a seatbelt bruise. 3. Dr Rimmer records that approximately a week after the accident Mr Rahman sought medical attention through his general practitioner, stating that he noticed pain in the thoracolumbar spine, right wrist and right foot. This is incorrect in a number of respects: Mr Rahman in fact saw his general practitioner, Dr Wilton, the day after the accident; he complained of ongoing chest pains and a sore back; Dr Wilton was concerned that Mr Rahman may have suffered a fracture and requested that he have an x-ray of his chest, ribs and thoracic spine. 4. Dr Rimmer makes no mention of the fact that 2 ½ weeks after the accident, on 22 September 2017, Dr Wilton completed a medical certificate recording that Mr Rahman complained of persistent low back pain and intermittent neck pain and that he had injuries to his right wrist, right knee and right ankle. 5. Dr Rimmer makes no mention of the fact that 3 ½ months after the accident, on 19 December 2017, Dr Wilton saw Mr Rahman and recorded that his examination confirmed no serious injuries were sustained but that Mr Rahman continued to suffer from significant pain in his back extending from the thoracic region to the lumbar area; that he continued to have pain and swelling in his right wrist; and that his ankles and feet were notably swollen and produced aching with prolonged movement. 6. Dr Rimmer makes no mention of the fact that five months after the accident, on 9 February 2018, Dr Wilton examined Mr Rahman and recorded that he continued to suffer from lower and middle back pains occasionally extending to the upper part of his back and that his right leg in particular continued to become painful and weak, and that his aching back was benefiting from regular physiotherapy. Dr Rimmer makes no mention of the fact that on the same day, 9 February 2018, Dr Wilton certified that Mr Rahman had a sitting tolerance of one hour and an inability to drive safely due to worsening leg pain. 7. Dr Rimmer makes no mention of the fact that on 16 March 2018 Dr Wilton certified that Mr Rahman had no capacity for any work as a result of the accident. 8. Whilst Dr Rimmer states that Mr Rahman was referred to Dr Dalton and an exercise physiologist, he makes no mention of the reports of Dr Dalton and Luke Bowen. 9. Dr Rimmer makes no mention of the fact that by July 2018 Dr Wilton was concerned that Mr Rahman had suffered from severe back pain and sciatic pain since the accident, that he could not sit still for more than half an hour, had never had proper analgesics and that he suffered from chronic pain, such that Dr Wilton referred Mr Rahman to the Pain Management Service at Greenwich Hospital. 10. Dr Rimmer makes no mention of the fact that Mr Rahman had seen Professor Siddall at the Pain Management Service at Greenwich Hospital the day before, on 7 August 2018. 11. Dr Rimmer stated that despite Mr Rahman's alleged symptoms "he does not take any forms of oral analgesics or anti-inflammatories". Whilst this may have been correct if Dr Rimmer was speaking in the present tense when he saw Mr Rahman on 8 August 2018, the list of prescriptions provided by Dr Wilton shows that Mr Rahman was prescribed Mobic on 19 December 2017. I understand that Mobic is an anti-inflammatory. The same list shows that Mr Rahman was prescribed Targin on 18 June, 25 June and 9 July 2018. I understand that Targin is a brand-name for oxycodone, an opioid analgesic. Dr Wilton's "complete record as at 16/5/2018" stated that Mr Rahman's current medications of his report included Mobic for bilateral ankle pain and that his last script had been provided on 19/12/2017. Dr Wilton's clinical notes for 19 December 2017 stated that Mr Rahman was using Panadol and topical Voltaren gel, and that he had ceased taking Panadeine Forte and that the prescription of Mobic was added. 101.2 Dr Rimmer's statement that on examination of Mr Rahman's thoracolumbar spine "he is non-tender to firm palpation throughout", is at odds with Professor Siddall's findings on examination the day before. He found that Mr Rahman had tenderness in the lumbar spine and right sacroiliac joint. 101.3 Dr Rimmer stated a number of times in his report that Mr Rahman "clearly demonstrates abnormal illness behaviour". However, he did not explain what he meant by this or how Mr Rahman clearly demonstrated it. If it means that Mr Rahman was pretending to be ill when he in fact was not, that is not something that was put to Mr Rahman in cross-examination. 101.3 Dr Rimmer's opinion was that Mr Rahman could easily resume his pre-accident employment as at August 2018 and that there was no period following the accident during which he could not have done so because he "resumed taxi driving the same day as his motor vehicle accident". This appears to me to be an overly simplistic analysis and fails to take into account events that occurred over the days, weeks and months following the accident. I have listed some of those events when referring to the incorrect or incomplete history recorded by Dr Rimmer. 101.4 Dr Rimmer's opinions are inconsistent with the observations and opinions of Dr Wilton, Professor Siddall and Dr Giblin made at about the same time.

Dr Rimmer's reports of 27 April 2020

1. In his longer report of 27 April 2020, Dr Rimmer made the same diagnosis as in his first report again placing his number one diagnosis as "abnormal illness behaviour". When asked again what period, if any, Mr Rahman would have been able to take undertake his pre-accident employment, Dr Rimmer stated "As I have highlighted in my two assessments, within hours of the motor vehicle accident he continued to drive a taxi that same day.". Dr Rimmer stated that he did not believe Mr Rahman had any present-day disabilities given that day's normal physical exam examination on all anatomic sites. He was of the view that there was "no physical reason" why he could not resume his pre-accident employment as a taxi driver effective immediately.
2. In his short report, Dr Rimmer once again assessed Mr Rahman as having 0% whole person impairment.
3. I do not accept Dr Rimmer's opinions in these reports for the following reasons: 104.1 Dr Rimmer's opinions are based on an incorrect or incomplete history in a number of respects: 1. With very slight changes, the "History" recorded by Dr Rimmer in his second report is materially the same as the "History" recorded in his first report. What I have said about the incorrect and incomplete history in the first report applies equally to the second. 2. One additional piece of new "History" is incorrect. Dr Rimmer stated that "Since last assessed he attended a pain management clinic with Dr Siddall at Royal North Shore Hospital in August 2018.". This is wrong in that Mr Rahman saw Professor Philip Siddall at the Pain Management Service at Greenwich Hospital in August 2018. Professor Siddall was the director of the service operated at Greenwich Hospital, not Royal North Shore Hospital. Mr Rahman did not participate in a clinic run by Prof Siddall in August 2018, or at all. Mr Rahman did attend the ADAPT program at Royal North Shore Hospital, but he did so in January 2019, having been assessed as suitable for the program in November 2018, and not under the care of Professor Siddall. 3. Under the heading "Current Treatment" Dr Rimmer again suggested that Mr Rahman had not taken any forms of oral analgesics or anti-inflammatories. This is wrong. I provided examples when dealing with Dr Rimmer's first report, and there are subsequent references to Mr Rahman taking analgesics or anti-inflammatories in other clinical notes and medical records in evidence. 4. Under the heading "Lumbar Spine" and in the list of "Documentation Reviewed", Dr Rimmer makes no reference to the CT of Mr Rahman's lumbar spine and an x-ray of his right hip performed on 6 February 2020, which reported a small broad-based disc protrusion at L5-S1, indenting on the exiting L5 nerve roots bilaterally. According to Dr Wilton's clinical notes of 11 March 2020, this CT scan suggested possible nerve impingement at the L5 level bilaterally from a disc protrusion. 5. Under the heading "Investigations", Dr Rimmer refers to an MRI scan of the lumbar spine dated 10 October 2018 and says it shows no abnormality. There is no report of an MRI scan dated 10 October 2018 in evidence. This may well be a reference to an MRI report dated 11 September 2018. If so, the conclusion of the radiologist was that the MRI of the lumbar spine demonstrated at L1/L2 a small left paracentral disc protrusion associated with left annular tear. The radiologist said that whilst this indented the left hemithecal sac, it did not cause neural compression. Dr Giblin considered that these scan findings were consistent with the history of injury and ongoing symptoms in the lumbar area. If Dr Rimmer was referring to this MRI, his conclusion that it showed no abnormality would appear to be incorrect, or at least is contradicted by the radiologist and Dr Giblin. 6. Dr Rimmer failed to refer to Dr Wilton's report of 5 October 2018 where he certified, amongst other things that Mr Rahman remained in constant severe low back pain preventing him from sitting for more than a short period of time. 7. Dr Rimmer failed to refer to the discharge referral notes of Royal North Shore Hospital emergency Department of 15 February 2019 recording that Mr Rahman presented with lower back pain after pulling out a drawer that day. 8. Dr Rimmer failed to refer to Dr Wilton's report of 27 June 2019 in which he stated that amongst other things Mr Rahman continued to have ongoing back pain but is now able to tolerate it much better. 9. Dr Rimmer failed to refer to Dr Wilton's clinical notes of 9 September 2019 which recorded that Mr Rahman's back pain had significantly increased. 10. Dr Rimmer failed to refer to Dr Singer's report to Dr Wilton of 31 October 2019 that, amongst other things Mr Rahman continued to experience low back pain. 11. Dr Rimmer failed to refer to Dr Wilton's clinical notes of 2 December 2019 which recorded that Mr Rahman's back pains were worsening with often significant stabbing pains now occurring; and that a month later the pain was worsening and sometimes radiating into Mr Rahman's right buttocks and right lateral thigh. 104.2 Other aspects of Dr Rimmer's report which lead me not to accept his opinions include: 1. Once again, Dr Rimmer has diagnosed Mr Rahman as having sustained "abnormal illness behaviour" in the accident, but does not explain what he means by that or how he has come to that conclusion. 2. Dr Rimmer has again placed heavy reliance on the fact that Mr Rahman drove another taxi for work later the same day, but has failed to take into account events that occurred over the days, weeks and months following the accident. 3. Many parts of Dr Rimmer's report of 27 April 2020 are materially, if not literally, identical to many parts of his first report of 14 August 2018. Those parts include the descriptions of Mr Rahman's current symptoms and findings on examination. It is difficult to accept that Mr Rahman would have said the same things and presented in precisely the same way on two different occasions so far apart. For that matter, it is difficult to see how Mr Rahman could have been 177 cm tall in August 2018, but only 169 cm tall in April 2020, and if he was, then why Dr Rimmer made no comment about the change.

Dr Keller

1. Dr Andrew Keller provided 3 reports: two dated 21 August 2020 after seeing Mr Rahman on 18 August 2020, and another dated 11 January 2023 after seeing Mr Rahman on 10 January 2023.
2. Dr Keller describes himself as an Occupational Physician. His curriculum vitae was not in evidence. His stated post nominals include "FRACGP", which I understand to be a reference to being a Fellow of the Royal Australian College of General Practitioners, and "FAFOEM", which I understand is a reference to being a Fellow of the Australian Faculty of Occupational and Environmental Medicine.

Dr Keller's reports of 21 August 2020

1. In his longer report of 21 August 2020, Dr Keller records that he saw Mr Rahman on 18 August 2020. Dr Keller was of the view that Mr Rahman's reports of constant high levels of lower back pain were not explained by the investigation reports to date including CT scans, MRIs and bone scans showing only mild degenerative changes. He said they were also not consistent with his physical presentation. He said "Although it is not possible for me to say that Mr Rahman does not experience lower back pain it is clear to me that he does not have severe lower back pain that restricts him from normal activities.". Doctor Keller gave a diagnosis in relation to the injury sustained in the accident of "temporary thoraco lumbar soft tissue strain". In Dr Keller's view, Mr Rahman's condition had stabilised and it was reasonable for him to have received physical treatments for up to 3 months after the accident and an exercise program for up to a further 3 months. When asked to express his opinion of Mr Rahman's ability to resume his pre-accident employment - a question which may possibly have been aligned more closely to Dr Keller's particular area of expertise - Dr Keller stated that in his opinion "Mr Rahman is fit to work as a Taxi Driver without restrictions. It is not clear that there was any period where he was not.". He expressed the opinion that Mr Rahman had no restrictions with regard to home duties. Mr Rahman had told Dr Keller that he was unable to do cooking and cleaning at home.
2. In his short report of 21 August 2020, Dr Keller assessed Mr Rahman as having 0% whole person impairment.
3. A number of aspects of Dr Keller's reports indicate that I should be hesitant in placing too much weight on his opinions. Those aspects include the following: 109.1 Dr Keller prefaced his conclusion that Mr Rahman was fit to work as a taxi driver without restrictions with the statement: "Mr Rahman continued working as a Taxi Driver following the accident he appears never to have been certified unfit for work until 2019.". This is wrong. I have outlined the details of the certificates provided by Dr Wilton elsewhere in this judgment. Very briefly, on 22 September 2017 he was certified fit but with restrictions including that he was unable to sit constantly for more than 2 hours; on 19 December 2017 Dr Wilton recorded in his clinical notes that Mr Rahman could now only tolerate 20 hours of work per week as a casual driver; on 9 February 2018 he was certified fit for 5 hours a day 5 days a week but whether sitting tolerance of one hour and an inability to drive safely due to worsening right leg pain; on 16 March 2018 he was certified as having no capacity for any work as a result of the accident; that remained the case until 26 February 2019. The suggestion that he "continued working as a taxi driver" also fails to take into account that he was working reduced hours. 109.2 Under the heading "past medical history", Dr Keller recorded that Mr Rahman had said that he had no psychiatric diagnoses and has never seen a psychologist or psychiatrist for treatment. It strikes me as unlikely that Mr Rahman would have said that. However, assuming that he did, presumably Dr Keller accepted the statement at face value because he made no reference to Mr Rahman's diagnosis of post-traumatic stress disorder and his ongoing treatment by Dr Singer, psychiatrist, and Dr Wilton his GP elsewhere in his report. 109.3 Dr Keller's opinion is therefore based on an incorrect and incomplete history on 2 quite material matters, particularly when it came to considering Mr Rahman's fitness for work. 109.4 There are other matters. For example, Dr Keller said that in 2018 Mr Rahman was not referred to any specialists. This is not true: he was referred to Dr Dalton who provided a report on 27 April 2018, and to Professor Siddall at the Greenwich Hospital pain clinic in July. He had also started seeing Mr Bowen, the exercise physiologist, at the start of May 2018 on the recommendation of Dr Dalton. 109.5 By way of further example, Dr Keller assumed that Mr Rahman developed symptoms of lower back pain within one week of the accident. This is not correct. Mr Rahman complained of back pain to the ambulance officers who attended the scene and to Dr Wilton who he saw the next day. 109.6 By way of further example, Dr Keller says that Mr Rahman told him that when he went to Royal North Shore Hospital on 15 February 2019 he received "no treatment". This is incorrect. The hospital discharge summary notes that he was given Mobic and Panadeine Forte at the hospital, and he was told to take Targin, paracetamol and ibuprofen when he went home. 109.7 Dr Keller was also provided with the reports of Dr Rimmer of August 2018 and 27 April 2020. These reports must have had some influence on Dr Keller because he refers to Dr Rimmer's opinion that Mr Rahman had abnormal illness behaviour with no current disabilities and no impairment in relation to the 2018 report, and no physical abnormalities or current disabilities in relation to the 2020 report.

Dr Keller's report of 11 January 2023

1. In his report of 11 January 2023, Dr Keller records that he saw Mr Rahman on 10 January 2023. On examination Dr Keller found that there was an inconsistent restriction of straight leg raise without signs of nerve root compression; inconsistent weakness of the right ankle, not explained by investigation reports; and no wasting in the lower limbs. He said that Mr Rahman reported reduced sensation in the right hand, right higher and right foot, not explained by his investigation reports to date. He observed no objective findings of physical injuries. His diagnosis was that "It is possible that Mr Rahman suffered a temporary lumbar spine soft tissue strain that would be expected to have resolved within less than 3 months from the time of the accident.". As regards capacity for work, Dr Keller said that in his opinion Mr Rahman "has no lasting physical injuries attributable to the accident that cause any work restrictions with regards to hours and duties". In his opinion Mr Rahman was fit "for all roles, including work as a taxi driver with regard to his physical condition". As regards Mr Rahman's capacity for self care and to participate in home duties he was of the opinion that Mr Rahman had full capacity with no restrictions due to the accident.
2. The following matters cause me to have some doubt about how much weight I should place on Dr Keller's opinions in this report: 111.1 Dr Keller places significant emphasis on Mr Rahman's complaints and examination being inconsistent with "investigation reports", however he makes no reference at all to the bone scan that Dr Wilton referred to in his clinical notes of 31 July 2020. According to Dr Wilton's clinical notes, that bone scan indicated inflammatory changes were present on the right side at level of L3/4 in the facet joint, and Dr Wilton thought this was consistent with Mr Rahman's chronic significant pain. Further, when referring to the 6 February 2020 CT scan, Dr Keller fails to mention that the radiologist reported that the small L5/S1 disc bulge was "indenting on the exiting L5 nerve roots bilaterally". 111.2 Dr Keller again makes no reference to any of the certificates completed by Doctor Wilton about the plaintiff's work capacity, some of which I have referred to in relation to his first report and others of which I have referred to elsewhere in these reasons. 111.3 Dr Keller has repeated his reliance on incorrect histories about Mr Rahman not being referred to any specialists in 2018, not complaining of back pain immediately after the accident, and receiving no treatment when he attended Royal North Shore Hospital on 15 February 2019. 111.4 Dr Keller makes no reference to Mr Rahman's participation in the ADAPT pain management program at Royal North Shore Hospital in 2019 or the Traumatic Stress Clinic at Westmead in the same year. 111.5 Dr Keller does not explain why he restricted himself to considering Mr Rahman's capacity for work from a "physical" perspective, and not also from a psychological perspective. 111.6 Dr Keller says that he was provided with "documentation" and that his report is based on it, but he does not say what that documentation was and it is not disclosed in other evidence.

Dr Newlyn

1. Dr Thomas Newlyn, Consultant Family and Child Psychiatrist, prepared 3 medico-legal reports: two on 27 August 2020 after seeing Mr Rahman for a Telehealth assessment (which I take to mean an assessment undertaken by audiovisual link) on that day; and one on 10 July 2023 after conducting an assessment of Mr Rahman using a Zoom video conference on that day.

Dr Newlyn's reports of 27 August 2020

1. In his longer report of 27 August 2020, Dr Newlyn stated that the history he obtained was reliable and consistent with his own psychiatric mental status examination. In response to the specific question "Because of the injuries in this accident what are Mr Rahman's current disabilities?", Dr Newlyn stated "Because of this motor accident Mr Rahman describes nightmares, anxiety, depressed mood and persistent disabling pain.". Dr Newlyn said that Mr Rahman's condition was consistent with the alleged injuries and disabilities. Based on the combination of history, background material provided and Mr Rahman's psychiatric mental status examination, Dr Newlyn's view was that Mr Rahman did not meet full criteria for the diagnosis of PTSD in accordance with DSM - 5 but that he had an "Adjustment Disorder with Mixed Anxiety and Depressed Mood". He also diagnosed Mr Rahman with "Passenger injury in collision with the car" and "Motor Accidents Litigation". Dr Newlyn did not explain what any of these 3 separate diagnoses meant, particularly the last two. Dr Newlyn considered that for the purposes of assessment, Mr Rahman's injuries had stabilised and that his psychiatric injuries "have sufficiently recovered" - he did not explain the difference between "stabilised" and "sufficiently recovered" or what the qualification "sufficiently" meant. Dr Newlyn was of the opinion that Mr Rahman did not need further treatment for his Adjustment Disorder. He was of the view that the disabilities he had diagnosed were caused by the motor accident. He was of the view that Mr Rahman did not have a psychiatric disability that would interfere with his ability to resume pre-accident employment or home duties.
2. Dr Newlyn was given a number of documents which he confirms in his report that he had reviewed. The documents are not identified other than by Dr Newlyn's reference to particular documents in response to the question "Provide an assessment on the available medical reports". It is a little curious that in circumstances where Dr Newlyn stated at the start of his report that he was unable to comment on Mr Rahman's physical condition, which he repeated subsequently before addressing the specific questions he had been asked, he had been provided with a number of reports which went to the physical condition of Mr Rahman. One of those reports was that of Mr Spiros Katzakis, an occupational therapist, dated 10 July 2020 which Dr Newlyn made a point of summarising. The final point of his summary was that Mr Katzakis found that Mr Rahman's "attitude on presentation was not consistent with the injuries attributed to the accident". Other reports included those of Dr Rimmer in 2018 and 2020, which I have already mentioned. Dr Newlyn made a point of recording that Dr Rimmer had said that "at the examination of 15 April 2020 of Mr Rahman did not have a disability but did have abnormal illness behaviour with resolved soft tissue injuries". It is not clear why Dr Newlyn had been provided with these reports, but the fact that he referred to them in this way must have had some influence on his own assessment of Mr Rahman.
3. In his short report on 27 August 2020, Dr Newlyn restated his diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood and assessed Mr Rahman as having a 5% adjusted percentage whole person impairment. In stating his reasons, Dr Newlyn said under the heading "Adjustments for effects of treatment or lack of treatment": The treatment has been appropriate with medicine taken in the appropriate dose and duration. There is evidence that the treatment has been effective in that Mr Rahman's symptoms and functioning has improved. It is my clinical judgement that ceasing treatment will result in deterioration of symptoms or a worsening in function.
4. This directly contradicts what Dr Newlyn had said in his longer report. There he had said that Mr Rahman "does not need further treatment for his Adjustment Disorder". The reason for the contradiction is left unexplained.
5. There is another contradiction in that Dr Newlyn stated at the start of his short report that "the impairment is permanent and has stabilised", but in his longer report had said that Mr Rahman had "sufficiently recovered". Again, the reason for reason for the contradiction is unexplained.

Dr Newlyn's report of 10 July 2023

1. As on the last occasion, Dr Newlyn stated in his report that the history obtained was reliable and consistent with his own psychiatric mental status examination of Mr Rahman.
2. In his report of 10 July 2023 Dr Newlyn states his "Assessment" of Mr Rahman as follows: My opinion is based on combining history, background material provided and Mr Rahman's psychiatric mental status examination. Mr Rahman meets DSM-5 diagnostic criteria for the principal diagnosis of an Adjustment-like Disorder with a Persistent Response to Trauma with PTSD-like Symptoms and comorbid Somatic Symptom Disorder with Predominant Pain. He did not met criteria for the diagnosis of either PTSD or Persistent Depressive Disorder.
3. Other than the statement in the 1st sentence of this extract, Dr Newlyn did not explain how he had arrived at this opinion. Nor did he explain what he meant by either diagnosis or why Mr Rahman did not meet the criteria for a diagnosis of either PTSD or Persistent Depressive Disorder.
4. Dr Newlyn stated the following prognosis: The 4 September 2017 MVA was 5 years and 10 months ago. Mr Rahman describes persisting symptoms that have partially responded to provided treatment. The prognosis is for continued symptoms while pain continues to be a focus of concern.
5. Dr Newlyn was of the view that the alleged mental health injuries were causally related to the accident.
6. In response to the specific question "What mental health treatment has Mr Rahman received and has such treatment been appropriate?", Dr Newlyn said: He has received ADAPT treatment with psychiatric follow-up by Dr Andrew Singer, treatment at the Traumatic Stress Clinic at the University of New South Wales and the prescription of psychotropic medicines by Dr Singer. The treatment has been appropriate.
7. Dr Newlyn considered that from a mental health perspective Mr Rahman was fit to perform his pre-injury duties, was not partially unfit for work because of his mental health problems and did not need personal or domestic assistance because of his mental health injuries.
8. There are some curiosities about Dr Newlyn's report of 10 July 2023: 125.1 Dr Newlyn again stated at the start of his report that he could not comment on Mr Rahman's physical condition, yet he was again provided with reports precisely about that. In particular, he was provided with the report of Dr Andrew Keller, occupational physician, which I have already discussed. He was also provided with the report of Dr John Davis, occupational physician, dated 6 May 2019. Whilst he referred to Dr Davis' diagnosis, for some reason he failed to mention that Dr Davis considered that Mr Rahman had achieved "maximal medical improvement". 125.2 Dr Newlyn also recorded that he had been given a report of Dr Dharani Keyan, clinical psychologist at UNSW Sydney Traumatic Stress Clinic dated 8 February 2021. I have already mentioned Dr Keyan's report - it is about Mr Rahman's attendance at the Traumatic Stress Clinic at Westmead between March and June 2019. Whilst Dr Newlyn refers to the content of the report, it is curious that he made no mention of the fact that the report also said that when Mr Rahman was assessed at the Clinic on 21 March 2019 his presentation and the symptoms he reported were consistent with a diagnosis of PTSD and on further assessment he also reported symptoms consistent with a DSM - 5 Major Depressive Episode. 125.3 Dr Newlyn also refers to the report of Dr Singer, Mr Rahman's treating psychiatrist, dated 1 September 2022. Dr Newlyn drew from that report that Dr Singer was treating Mr Rahman for pain, PTSD and major depressive disorder "symptoms". Dr Newlyn seems to have taken the view that Dr Singer was only reporting about the "symptoms" he was treating rather than the illness. This reading would be consistent with what Dr Newlyn had said in his 1st report of 27 August 2020 when he made comments about his own diagnosis including that "I note Dr Singer refers to PTSD symptoms not to a PTSD diagnosis". If that is the idea or distinction that Dr Newlyn is seeking to draw in his later report, in my view it is based on a misreading of Doctor Singer's report of 1 September 2022. Dr Singer commenced his report by stating that he had already provided a report dated 4 November 2020. Unfortunately, a copy of that report is not in evidence before me. However, Dr Singer stated at the bottom of the 1st page of his report after referring to the physical injuries suffered by Mr Rahman in the accident: "these injuries have been complicated by the development of major depression and post-traumatic stress disorder". Dr Singer then went on to describe the treatment which Mr Rahman had been given for that depression and that disorder. It seems fairly clear that Doctor Singer was of the view that Mr Rahman had actually developed major depression and post-traumatic stress disorder, not just that he had "symptoms", and that was what he was being treated for.

Report of Peter Defina of 26 October 2020

1. Mr Defina is a clinical and vocational psychologist.
2. The defendant submitted that based on his report I should find that Mr Rahman is contemplating studying and obtaining a certificate in building management (construction) and after which he would start his own business and be capable of employment as a project builder; and that Mr Rahman is also able to work as a taxi or Uber driver, accountant, accounts clerk, bookkeeper or conference and event organiser (submissions paragraph 56).
3. The main thrust of Mr Defina's conclusions are set out on page 16 of his report after administering a raft of tests on Mr Rahman and conducting his own review of the many doctors reports with which he was provided. His view was that the assessment data he had referred to indicated at the assessment he conducted Mr Rahman had "misrepresented" his level of intellectual functioning, had "feigned or exaggerated" his report of symptoms of pain, had "feigned or exaggerated" his report of psychological symptoms and had "feigned or exaggerated" his symptoms of memory impairment. Mr Defina thought it was reasonable to conclude that Mr Rahman was "endeavouring to present in such a manner as to under-represent his potential for employment by exaggerating or feigning impairment that he attributes to the accident". Mr Defina thought this was "suggestive of malingering", which he said was a condition referred to in DSM - 5 "the essential feature of which is the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives. Malingering is the false and fraudulent simulation or exaggeration of physical or mental disease or defect, performed in order to obtain money…". Mr Defina's final conclusion on this is set out at the bottom of page 17 of his report where he said that "From a psychological perspective, I consider that Mr Rahman is fit for full-time employment. His reports of psychological symptoms are, on the basis of his performance on psychometric instruments sensitive to feigning, exaggerated.".
4. Whilst I do not accept Mr Defina's assessment or opinions I find it unnecessary to analyse them or explain why in any detail because none of these matters were put to Mr Rahman in cross-examination. It was not suggested to Mr Rahman that he had misrepresented his level of intellectual functioning or that he had feigned or exaggerated his report of symptoms. It was not suggested to him that he had exaggerated or feigned impairment. It was not suggested to him that he was malingering. It was not suggested to him that he had intentionally produced false or grossly exaggerated physical or psychological symptoms in order to obtain money.
5. The failure to cross-examine Mr Rahman about any of these matters wholly undermines the weight I should attribute to any of Mr Defina's expressed opinions.

A.10 My findings about the plaintiff's injuries and disabilities

1. I accept that Mr Rahman has been suffering the pain that he has complained of to his doctors since the accident.
2. Having regard to all of the evidence, but particularly the contemporaneous clinical notes, reports and certificates of Dr Wilton and Dr Singer, I find that Mr Rahman sustained injuries to his back, right wrist, right knee and right ankle in the accident and that the injuries Mr Rahman suffered in the accident have led him to develop chronic pain in his back and legs, major depression and post-traumatic stress disorder.
3. My finding that Mr Rahman suffered post-traumatic stress disorder is not only supported by the opinion of Dr Singer, but also Dr Saboor, psychiatrist, Kate Glancey, psychologist, and Mr Rahman's initial assessment at the Traumatic Stress Clinic at Westmead.
4. I accept the opinion of Doctor Singer that Mr Rahman's persistent symptoms of depression and PTSD are unlikely to change significantly.
5. Having regard to the events which have taken place since, it appears to me that the prognosis stated by Dr Giblin in July 2018 has so far come to pass, and that Mr Rahman's physical symptoms have persisted in a recurrent fashion, being present in terms of exacerbations and remissions and associated with permanent physical limitations to date.
6. Beyond Dr Singer's and Dr Giblin's opinions there is very little if any medical evidence that I have accepted to indicate what the future is likely to hold for Mr Rahman.

B. Is Mr Rahman entitled to any damages for non-economic loss (or general damages)?

1. The defendant submitted that Mr Rahman is not entitled to any damages for non-economic loss.
2. By s.131 of the Motor Accident Compensation Act 1999, no damages may be awarded for non-economic loss unless the degree of permanent impairment of the plaintiff as a result of the injury caused by the accident is greater than 10%. Non-economic loss means pain and suffering, loss of amenities of life, loss of expectation of life or disfigurement (s.3).
3. It is not open to me to assess the plaintiff's degree of impairment in these proceedings because of s.132. If the parties are unable to agree, this has to be done by a medical assessor under Part 3.4 of the Act.
4. The parties have not agreed, and there is no evidence before me of an assessment of the plaintiff by a medical assessor. Mr Ronzani, counsel for the defendant, informed me that it was the defendant's understanding that no such assessment had been undertaken because any certificate of the assessment would have been given to the defendant under the system, and if had not received one.
5. In those circumstances, I accept the defendant's submission that Mr Rahman is not entitled to an amount of damages for non-economic loss.

C. Is Mr Rahman entitled to any damages for loss of earning capacity?

C.1 The claim Mr Rahman put forward

1. The Statement of Particulars filed for Mr Rahman by his former solicitors on 29 June 2022 set out separate claims for past and future economic loss.
2. The claim for the past was put on the basis that Mr Rahman was earning approximately $1,000 net per week at the time of accident; that after the accident he reduced his hours of work and shifts until he ceased work in February 2018, and during that period he lost a minimum of $300 net per week for 27 weeks; that he had been unable to return to work other than a brief stint working in a café in 2020 which he found difficult and could not keep up with, earning a total of $1,800 net during that time; that otherwise he had an ongoing loss of $1,000 per week.
3. The claim for the future was put on the basis that he is unable to work as an Uber or taxi driver; that he would likely be unable to work as an accountant because his concentration would be impaired because of his physical and psychological difficulties. It was said that in all the circumstances a claim was made for the balance of Mr Rahman's life on the basis of a modest residual earning capacity of $250 net per week for the balance of his life expectancy. A claim for future loss of superannuation was also made at 13%. The calculations are not set out in the Statement of Particulars, but a residual earning capacity of $250 net per week when deducted from a pre-accident earning capacity of $1,000 per week would give rise to a claim for the difference of $750 net per week into the future.
4. In his Schedule of Damages (Exhibit B) Mr Rahman put his claim for the past on the same basis, except that he asserted he lost $650 net per week in the 27 weeks following the accident and that his earnings at the Dragonfly Café were $973.50, not $1,800. He also asserted claims that in the 2017 financial year he was earning $944.50 net per week. His former solicitors had said it was $711.44 net per week in the Statement of Particulars.
5. Mr Rahman put his claim for the future on the same basis as the Statement of Particulars, except that he said that his residual earning capacity was $750 net per week. That would mean his claim would be for the difference of $250 net per week into the future. I am not sure that Mr Rahman meant to change the nature of his claim in this way. I suspect that he intended to claim $750 net per week, which is in effect what his solicitors had done.

C.2 The defendant's response

1. The defendant submits that at the time of the accident Mr Rahman was earning $400 per week because that is what he put on his Personal Injury Claim Form.
2. The Defendant's Schedule of Damages allows Mr Rahman "NIL" for past and future economic loss.
3. The defendant submits that the court should find that: 149.1 Mr Rahman is fit to work as a taxi driver without restrictions based on the reports of Dr Keller and Dr Dalton (submissions paragraph 55.2). 149.2 Mr Rahman's "apparent abnormal illness behaviour is not due to the MVA", based on the reports of Dr Rimmer (submissions 55.5). 149.3 Mr Rahman's soft tissue post MVA injuries were a musculoskeletal strained thoracolumbar spine, a resolved soft tissue injury to his right wrist, and his foot (submissions 55.6). 149.4 Mr Rahman is contemplating studying and obtaining a certificate in building management (construction) and after which he would start his own business and be capable of employment as a project builder; and that Mr Rahman is also able to work as a taxi or Uber driver, accountant, accounts clerk, bookkeeper or conference and event organiser based on the report of Peter Defina, clinical and vocational psychologist (submissions paragraph 56). 149.5 No compensable loss for past earnings have been proved by Mr Rahman based on the income levels recorded in the report of Mr Defina when compared to Mr Rahman's earnings before the MVA, (submissions paragraph 57). 149.6 No MVA-caused (if any) mental health problem has or will affect Mr Rahman's earning capacity, treatment, or domestic assistance need, notwithstanding what came to light during the ADAPT program (submissions paragraph 58). 149.7 When Mr Rahman saw Dr Newlyn in July 2020 he did not have a psychiatric disability that would interfere with resuming his pre-MVA employment and resuming in carrying out his pre-accident home duties. 149.8 When Mr Rahman saw Dr Newlyn in 2023 he was fit to perform his pre-injury duties from a mental health perspective (submissions paragraphs 60 and 61).
4. I do not accept the submission that Mr Rahman is fit to work as a taxi driver without restrictions. I have already explained why I do not accept the opinions of Dr Keller. Dr Dalton provided his report at a very early stage and his prognosis has proved to be unduly optimistic. I prefer the opinions of Dr Wilton about Mr Rahman's fitness to work as a taxi driver, and I refer to those below.
5. I have already explained why I do not accept the opinions of Dr Rimmer, Dr Newlyn and Mr Defina. It follows that I would not accept the submissions based on their reports.

C.3 Legal Principles ~ past and future lost earning capacity

1. A majority of the High Court (Gleeson CJ, Gummow, Kirby & Hayne JJ) stated these "well settled" matters about the assessment of damages for loss of earning capacity in personal injuries cases in Husher v Husher [1999] HCA 47, (1999) 197 CLR 138 at 142-147, [6]-[8]: 152.1 If a plaintiff's pursuit of gainful employment is interrupted or affected because of the defendant's negligence, the plaintiff is to be compensated by an amount that reflects the financial consequences that follow from the impairment. 152.2 It has been recognised that it is convenient to assess an injured plaintiff's loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss". 152.3 But damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss". 152.4 It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum put the plaintiff in the same position as he or she would have been in if injury had not been sustained. 152.5 The past may provide important evidence about the plaintiff's earning capacity and what economic consequences will probably flow from what has happened. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the enquiry is an enquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future. There may be many reasons why an injured plaintiff's past work history provides no assistance in deciding what that plaintiff has lost through diminution of future earning capacity.
2. Once the plaintiff has established the loss of earning capacity, the onus of demonstrating a failure to exercise any residual earning capacity lies on the defendant: South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [74] (per Simpson JA; Macfarlan & Meagher JJA agreeing), citing Mead v Kerney [2012] NSWCA 215 at [16] and [25] (per Macfarlan JA; McColl & Sackville AJA agreeing). This is an evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity: Mead at [25]-[27]. Notwithstanding the plaintiff's theoretical ability to perform certain jobs, there must be a practical assessment of the likelihood of the plaintiff in fact obtaining such jobs: Mead at [24]; or what Simpson JA called "the realities of the world of employment": Sorbello at [72].
3. Section 126 of the Motor Accidents Compensation Act 1999 applies to the assessment of damages for future loss of earning capacity in the present case. It provides as follows: 126 Future economic loss - claimant's prospects and adjustments (cf s 70A MAA) (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
4. This section does not prevent the court from awarding damages for future economic loss by way of a buffer: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, (2012) 83 NSWLR 302; Penrith City Council v Parks [2004] NSWCA 201; Alldinger v Du Ranot [2023] NSWCA 271 at [50].
5. In Allianz Basten JA explained there is a point beyond which the selection of the figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a "buffer", without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage: [30].
6. The uncertainty arises because the court is dealing with hypotheticals.
7. His Honour had earlier referred to the comprehensive review of general principles by Heydon JA in State of New South Wales v Moss in [2000] NSWCA 133, (2000) 54 NSWLR 536 and to the decision of the High Court in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
8. In Moss, Heydon JA commenced his review by saying (at [66]) that there are 2 uncontroversial themes running through the cases relating to the assessment of damages for injury to earning capacity. One is that in general it is desirable for precise evidence to be called as to what the plaintiff would have been likely to earn but for the injury and what the plaintiff is likely to earn after it. The second is that the failure to call such evidence does not necessarily result in selection of only a nil or nominal figure is damages for impaired earning capacity.
9. At the conclusion of his review Heydon JA summarised the position in this way, at [87]: "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. … The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility."
10. What earning capacity has Mr Rahman lost and what economic consequences will probably flow from that loss?

C.4 What do Mr Rahman's tax returns and Uber records show?

1. Mr Rahman's tax return and notice of assessment for the year ended 30 June 2014 show that he had two sources of income for that year. One was as a customer service manager for Le Montage Pty Ltd, from which he had a gross taxable income of $6,012. The other was from Centrelink, in the sum of $7,640. No tax was payable.
2. Mr Rahman's tax return, notice of assessment and notice of amended assessment for the year ended 30 June 2015 showed that his sole source of employment income was as a restaurant manager for two different entities, one being the same company as in the previous year and the other being N Riviera and P Riviera. His net income after tax and Medicare levy was $24,142.33 for the year. This represents an average net income of $464 per week over the year. He also received a Centrelink payment of $1843.
3. Mr Rahman's tax return and notice of assessment for the year ended 30 June 2016 show that he had two sources of income. One was from the business of taxi service operator which provided a net income of $35,633. The other was from the payment of gross interest of $1,640. His net income for the year after tax and payment of Medicare levy was $33,482.75. This represents an average net income of $643 per week over the year.
4. Mr Rahman's tax return and notice of assessment for the year ended 30 June 2017 show that his sole source of income was from operating the business of a taxi service operation. His net income after tax and Medicare levy was $36,930.65 for the year. This was his last full year of income before the accident on 4 September 2017. It represents an average net income of $710 per week over the year.
5. Mr Rahman's tax return and notice of assessment for the year ended 30 June 2018 shows that he had 3 sources of income. One was from operating the business of a taxi service operation, which provided a net income of $13,380. A second was from the payment of interest, which provided interest income of $4. The third was income from being employed as a taxi driver, which provided a gross income of $1,251, but which appears to have been actually paid by Centrelink. His total net income for the year was $13,975.
6. For the year ended 30 June 2018 monthly statements provided to Mr Rahman by Uber were available for the months of July 2017 through to February 2018. The figures in those statements do not necessarily represent the precise taxable income earned by Mr Rahman through Uber because there are some fees like "tolls" and "booking fees" which may well represent cost recoveries by Uber as opposed to income earned by Mr Rahman. Nevertheless, the monthly statements give some indication of the gross average earnings of Mr Rahman through Uber for that period. If one deducts the Uber service fees from the gross fares for each month his income for the month of July 2017 was $5,084; for August 2017 $3,309; for September 2017 (the month of the accident) $1,431; for October 2017 $1,437; for November 2017 $761; for December 2017 $2,685; for January 2018 $1,608.76; and for February 2018 $1,113. Allowing 4.33 weeks for the month of December 2017, Mr Rahman's average was $620 per week gross after the deduction of the Uber service fees. Allowing 4.33 weeks for the month of January 2018, the average was $371 per week. Allowing 4 weeks for the month of February 2018, the average was $278 per week. The trend from these figures is obvious and is that Mr Rahman's income from Uber took a sharp decline in September 2017 (being the month of the accident), stayed steady in October 2017, declined sharply again in November 2017, increased dramatically in December 2017, but decreased again in January 2018 and further again in February 2018. It is common ground that he ceased work altogether in February 2018.
7. Mr Rahman's tax return and notice of assessment for the year ended 30 June 2019 show that he received gross income of $63,958 by way of salary and wages; that he earned gross interest of $446; and that he received a lump sum payment for income from the previous year, that is the year ended 30 June 2018, in the sum of $27,342. Both the gross income of $63,958 and the lump sum payment of $27,342 represented the payment to Mr Rahman of weekly workers compensation.
8. The fact that Mr Rahman disclosed in the year ended 30 June 2019 that he had received a lump sum payment for income from the previous tax year is consistent with other evidence. The list of benefits paid by the workers compensation insurer shows that Mr Rahman was not paid weekly workers compensation payments until 12 October 2018, at which time the payments were backdated to 12 April 2018.
9. There was no tax return for the year ended 30 June 2020 in evidence.
10. Mr Rahman's tax return for the year ended 30 June 2021 shows that in addition to receiving income from the weekly workers compensation payments, he earned gross interest of $1,841.
11. His tax return for the year ended 30 June 2022 shows that in addition to receiving income from the weekly workers compensation payments, he earned gross interest of $1,038.

C.5 What jobs has Mr Rahman had since February 2018?

1. It is common ground that Mr Rahman only had two paying jobs after February 2018. One was at the Dragonfly Café in North Ryde and the other was at Curzon Hall.
2. Mr Rahman started the job at the Dragonfly Café on 24 February 2020. He found this job himself and it was close to where he lived. He worked in the morning session, making coffee, helping to serve, readjusting the tables, locating table numbers, clearing at some points. He described the work he did as light duties. The job lasted until 25 March 2020 when his employment was terminated, along with other employees, due to the introduction of COVID restrictions.
3. Mr Rahman started the job at Curzon Hall in September or October 2022. He was still working there at the time of the hearing. Curzon Hall is a function centre. Mr Rahman had worked there between 2010 and 2013. When he started back in 2022 the work he did involved ushering guests into one of the five halls at the centre, helping with the guest lists to allocate tables, making sure the seating arrangements were right, helping with the drinks and food. His working arrangements were flexible in that he was allowed to take lots of breaks. For example, his evidence was that in a 6 or 7 hour shift he may work only 3, 3 ½ or 4 hours after taking lots of breaks.
4. The weekly pay records for Mr Rahman kept by NV Employment Pty Ltd, who operated Curzon Hall and employed Mr Rahman, show that for the period commencing 26 September 2022 and ending on 12 February 2023, Mr Rahman worked an average of 9.01 hours per week for an average net pay of $279.81 per week. The figures are collated in the following table: Week No. Dates Hours Worked Net Pay 1 26/9/22 - 2/10/22* 10 $242.25 2 3/10/22 - 9/10/22 7 $238.13 3 10/10/22 - 16/10/22 9 $305.45 4 17/10/22 - 23/10/22 13.75 $420.76 5 31/10/22 - 6/11/22 7 $239.12 6 7/11/22 - 13/11/22 10 $289.56 7 14/11/22 - 20/11/22 8.5 $248.73 8 22/11/22 - 27/11/22 12.5 $361.57 9 5/12/22 - 11/12/22 4.25 $120.96 10 12/12/22 - 18/12/22 17.75 $545.36 11 19/12/22 - 25/12/22 9.25 $272.85 12 2/1/23 - 8/1/23 7.25 $247.66 13 9/1/23 - 15/1/23 7.25 $262.25 14 23/1/23 - 29/1/23 6 $204.96 15 30/1/23 - 5/2/23 7.5 $221.26 16 6/2/23 - 12/2/23 7.5 $256.20 TOTALS 144.25 $4,477.07 Average 9.01 hrs / week $279.81 / week

C.6 How has the accident affected Mr Rahman's earning capacity according to the certificates and clinical notes of Dr Wilton?

1. On 22 September 2017, Dr Wilton certified that Mr Rahman was fit for his pre-injury duties until 22 December 2017 with considerations or modifications that he was unable to do any heavy lifting, unable to sit constantly for more than two hours and unable to walk more than 400 metres.
2. Upon seeing Mr Rahman on 19 December 2017, Dr Wilton recorded in his clinical notes that the severity of Mr Rahman's back pain and now particularly of the pain in his ankles meant that he could only tolerate 20 hours of work per week as a casual driver.
3. On 9 February 2018, Dr Wilton certified that Mr Rahman had capacity for some type of employment until 9 March 2018 for five hours per day five days a week but with a sitting tolerance of one hour and an inability to drive safely due to worsening right leg pain.
4. On 16 March 2018, Dr Wilton certified that Mr Rahman had no work capacity for any employment to 11 April 2018. This was the first time since the accident that Dr Wilton had certified that Mr Rahman had no capacity for any work as a result of the accident.
5. Dr Wilton continued to see Mr Rahman throughout 2018 and into early 2019, and to certify that Mr Rahman had no capacity for any work.
6. This did not change until 26 February 2019, when Dr Wilton certified that Mr Rahman had capacity for some type of employment from 26 February to 25 March 2019 for six hours a day two days a week but that his capacity was limited in that he could only lift or carry up to 12 kg; that he was an unable to last longer than 20 minutes sitting; for standing his tolerance was up to 20 minutes; his ability to bend, twist and squat was limited in all directions; and that he was unable to drive more than half an hour because of post-traumatic stress from the accident.
7. On 25 March 2019, Dr Wilton certified that Mr Rahman had the same capacity with the same limitations for the period 25 March to 23 April 2019.
8. On 23 April 2019 certified that Mr Rahman had the same capacity with the same limitations for the period 24 April to 24 May 2019.
9. On 24 April 2019 Keystone Professionals wrote to Dr Wilton informing him that they had been appointed for the purpose of assisting Mr Rahman with returning to work. They provided Dr Wilton with their vocational assessment report, noting that the report recommended that Mr Rahman had the skills to commence job seeking as an accountant, accounts clerk or in bookkeeping. They told Dr Wilton that they planned to provide Mr Rahman with job seeking assistance, however in order to proceed they required a medical clearance. They noted that according to the vocational assessment, to be readily employable Mr Rahman would need to have a capacity for work for at least eight hours per day, three days per week. This appears to have been a reference to the assessment of Ms Wendy Lum on 17 April 2019 which was part of the report. Under the heading "ISSUES THAT MAY IMPACT A SUCCESSFUL JOB PLACEMENT", Ms Lum said: Limited work hours - Mr Rahman is currently certified as fit for only 12 hours per week. At these hours, he is not considered readily employable in the open labour market. … He would need to increase his work hours to at least 3 days per week (24 hours per week) to be considered readily employable in Accounts Clerical / Bookkeeping roles, and to full time hours to be employable in an Accountancy role.
10. On 10 May 2019, Dr Wilton completed a WorkCover form certifying that Mr Rahman had capacity for some type of employment from 10 May to 7 June 2019 for 8 hours a day 3 days a week. This represented an increase in his certified capacity, up from 6 hours a day 2 days week, but with the same limitations for lifting, sitting and standing. How and why the change came about was recorded by Dr Wilton in his clinical notes. Dr Wilton recorded that: This gentleman was seen for a case conference with his rehabilitation consultant provided through WorkCover. This was Lara Moss from Keystone Professionals. After discussion with the patient and his case manager forms were completed for his WorkCover certificates and for the form from Keystone Professionals confirming that a trial for him to work in a sedentary job such as accountancy could now commence with his ability to work for 8 hours on 3 days a week now being likely to be achieved.
11. On 11 June 2019, Dr Wilton completed another WorkCover form certifying again that the plaintiff had capacity for some type of employment for 8 hours a day 3 days a week, this time from 7 June to 7 July 2019.
12. There do not appear to be any further WorkCover certificates in evidence from June 2019 until February 2023, but there are some references to Mr Rahman's work capacity in Dr Wilton's clinical notes and records during that period.
13. Dr Wilton saw Mr Rahman again on 5 August 2019. Dr Wilton completed another Workcover certificate, which does not appear to be in evidence. However, he recorded in his clinical notes that: This gentleman came in for his WorkCover certificate. He is now documented as being able to return to sedentary work. However there has been no work available through the employment provider.
14. By 9 September 2019 things had changed for the worse. Dr Wilton considered that Mr Rahman was unable to consider working at all due to a significant increase in his back pain. Once again, the relevant WorkCover certificate does not appear to be in evidence, however the change in Mr Rahman's working capacity is recorded in Dr Wilton's clinical notes as follows: This gentleman came for his routine review for WorkCover. Unfortunately things are not going so well at present. His back pain has significantly increased recently despite doing all the treatments advised from the pain clinic. He is attending regular swimming and trying to do home exercises is already provided. He is hoping to get benefit from a chiropractor. He asked if referral to the chiropractic could be recommended in his next WorkCover. This was done His mood is holding up as he is seeing his psychiatrist regularly. He is now on a new antidepressant. He is fearful his depression may increase if his pain does not improve. He has no work prospects at present. His case manager has been unable to find any appropriate work and has asked the patient to be the one searching for it now. At present. His pain is such that he is unable to consider working at all. This was updated in his WorkCover certificate. He will be reviewed in one months time.
15. According to a report of Keystone Professionals dated 13 February 2020, on 31 January 2020 Dr Wilton had certified Mr Rahman as fit for work at 12 hours a week (4 hours per day, 3 days per week) with the ability to lift up to 5 kg, sit/stand for up to 15 minutes, push up to 8 kg and drive up to 30 minutes.
16. By 11 March 2020 Dr Wilton recorded in his clinical notes that Mr Rahman was at that time unable to undertake any work.
17. In his clinical notes of 11 October 2021 Dr Wilton recorded that Mr Rahman's then WorkCover restrictions were 3 hours a day for 2 days a week.
18. Dr Wilton completed a WorkCover certificate on 22 February 2023 certifying that Mr Rahman had capacity for some type of employment from three February to 3 May 2023 for 2 hours a day 5 days a week with a lifting and carrying capacity of up to 5 kg, pushing or pulling ability up to 8 kg, an inability to bend or twist at all without significant pain, and an inability to drive more than half an hour because of post-traumatic stress from the accident and now worsening back pain from prolonged sitting. In describing the "factors delaying recovery", Dr Wilton said: This gentleman continues to suffer from significant low back pain that has not been relieved by any modality to date. a sedentary job still remains his best option and he continues to wait for this to be arranged. He benefits from having an ongoing exercise programme through either an exercise physiologist or physiotherapist to maintain his muscle strength and mobility and increase his confidence that his physical abilities will improve.
19. Dr Wilton completed another WorkCover certificate on 27 June 2023 for the period 3 May to 3 August 2023 with the same limitations and same factors delaying recovery, and again on 8 August 2023 for the period 3 August to 3 November 2023.

C.7 Other evidence about Mr Rahman's earning capacity: from Mr Rahman

1. I have already referred to the report of Keystone Professionals provided to Doctor Wilton on 24 April 2019. Mr Rahman gave oral evidence that throughout 2019, Keystone Professionals helped him build a resume and look for jobs within his physical and psychological limitations, but without success. Keystone Professionals had been engaged by the workers compensation insurer.
2. I have also already referred to the fact that Mr Rahman found a job for himself at the Dragonfly Café in Ryde in February 2020 which came to an end in March 2020 because of the introduction of Covid restrictions in Sydney. In his oral evidence, Mr Rahman said that if the Covid restrictions did not happen he would not have had to leave that job and he could have continued in it. He said it was a hands-on job that involved sitting and standing and light work. In cross-examination he said that he worked 5 hours on weekdays and 5 hours on Saturdays, which included short breaks. He said in the first 2 weeks he worked total of 16 hours 38 minutes, giving an average of 8 hours 15 minutes each week. He said these details came from a payslip.
3. It was put to Mr Rahman in cross-examination that he could have done accounting work after the accident right up to April 2019. Mr Rahman agreed but said there was no opportunity available to him because he was unable to sit down for a long time. No one was offering him a job that allowed for 15 minutes sitting in 15 minutes standing. He said that Keystone professionals were working with him to get going. He believed that in the years 2018 and 2019 they looked for jobs for him, but no work was available. Mr Rahman's evidence on these matters is borne out by the Keystone Professionals reports I have referred to.

C.8 My assessment of Mr Rahman's damages for past loss of earning capacity

1. The accident happened on 4 September 2017.
2. In his last full year of income prior to the accident, the year ended 30 June 2017, Mr Rahman earned $710 net per week on average. I find that this figure provides a fair representation of his pre-accident earning capacity.
3. He was first certified unfit for any work on 16 March 2018. Thereafter, he was either totally unfit for work or no jobs were available to him having regard to his ongoing physical and psychological disabilities until 26 September 2022, when he began working at Curzon Hall. There was an exception in that Mr Rahman stated work at the Dragonfly Café in February 2020 but this job ceased to be available to him within a month through no fault of his own. He was still working at Curzon Hall at the time of the hearing. I find that the figure of $710 net per week provides a fair measure of Mr Rahman's loss of earning capacity for the period from 16 March 2018 to 26 September 2022.
4. The available wage records from Curzon Hall show that Mr Rahman has been earning an average of near enough to $280 net per week. I find that this figure provides a fair representation of his residual earning capacity between 26 September 2022 and the date of the hearing.
5. In the period between the accident and 16 March 2018, Mr Rahman reduced his hours and eventually stopped working because of the injuries he received in the accident. The available records show that his average gross income throughout this period roughly halved. I would therefore allow half of his pre-accident average weekly earnings, i.e. $355 per week, for this period.
6. I calculate the sum that Mr Rahman is entitled to by way of past loss of earning capacity as follows: 1. For the period 4 September 2017 to 15 March 2018, being 27 weeks at $355 per week: $9,585. 2. For the period from 16 March 2018 to 25 September 2022, being 236 weeks at $710 per week: $167,560. 3. For the period from 26 September 2022 to 24 April 2024, being a period of 82 weeks at $430 per week (i.e. $710 less $280 per week): $35,260.
7. The total is $212,405 and I allow that amount for past loss of earning capacity.

C.9 My assessment of Mr Rahman's damages for future loss of earning capacity

1. In my opinion the assessment of Mr Rahman's future loss of earning capacity is fraught with uncertainty. Mathematical precision is not possible. I say that because: 206.1 The course of future events for Mr Rahman is very difficult to predict with any degree of confidence. 206.2 Mr Rahman clearly has some residual earning capacity, because he has been working at Curzon Hall since September 2022. 206.3 He has been unable to return to his pre-injury work as a taxi driver or Uber driver because of his ongoing physical and psychological problems. That is likely to remain the case. 206.4 Mr Rahman has completed studies and obtained qualifications that on their face would enable him to work as an accountant or bookkeeper, but he has little history of doing so and even with the assistance of trained vocational experts (Keystone Professionals) he was unable to find a job in either area after the accident due to his physical and psychological limitations. 206.5 There is very little medical evidence about what is likely to happen in the future about his likely physical and psychological recovery. 206.6 He is 40 years old. Retirement at age 67 would ordinarily mean 27 more years of working life. 206.7 It is quite possible that once these proceedings have come to an end, with their attendant need to re-tell and re-live the trauma to doctors and lawyers has passed, Mr Rahman's psychological state may improve, rather than remain static or deteriorate. 206.8 The best evidence about what is likely to happen with his physical state would appear to be that of Doctor Giblin, who said that Mr Rahman's symptoms are going to persist in a recurrent fashion, being present in terms of exacerbations and remissions, associated with permanent physical limitations, the prospect of long term deterioration, and possible future surgical concerns.
2. For those reasons, in my opinion it is appropriate to allow Mr Rahman a lump sum by way of a buffer for future loss of earning capacity.
3. In terms of section 126 of the Motor Accidents Compensation Act 1999, I am satisfied and assume that Mr Rahman has a reduced earning capacity at the present time which will continue for the immediately foreseeable future. I assume that this will not remain the case until the usual age of retirement. I assume that his level of residual earning capacity is likely to fluctuate in the longer term. I assume that his residual earning capacity may well improve over time. I assume that he is unlikely to have any less residual earning capacity in the future than he has at the present time.
4. In working out an appropriate amount I have had regard to what a mathematical calculation would produce allowing for a weekly loss of $430 over 27 years. The multiplier for 27 years on the 5% tables is 783. Allowing for $430 by 783 with the usual reduction of 15% for vicissitudes, the product would be $286,186.50. Allowing for a reduction of 30% for vicissitudes, the product would be $235,685. Allowing for a reduction of 50% for vicissitudes the product would be $168,345.
5. I have also had regard to the fact that if one were to multiply the loss of $430 per week over 52 weeks, the loss for a year would be $22,360. For 2 years it would be $44,720. For 3 years it would be $67,080.
6. I make a small allowance for the possible loss of an employer's compulsory contribution to superannuation in the future.
7. In all the circumstances, in my view a fair amount to award Mr Rahman by way of a lump sum as a buffer is $150,000.

D. Is Mr Rahman entitled to any damages for loss of superannuation?

1. In his Statement of Particulars and in his Schedule of Damages, Mr Rahman says that he makes a claim for future loss of superannuation at 13%.
2. The defendant submits that Mr Rahman was a self-employed person and that Mr Rahman is not entitled to superannuation because there was no superannuation paid to him by an employer, or at least there was certainly no evidence of it.
3. It is true that there was no evidence before the court that any employer was making superannuation contributions, compulsory or otherwise, for Mr Rahman before the accident. However, there is some evidence that he was an employee at the time of the accident. This lies in the fact that he received workers compensation payments. He has also worked as an employee in the past.
4. In any event, Mr Rahman's claim relates to the loss of an employer's compulsory contribution to superannuation in the future. I have allowed for that in arriving at the lump sum buffer for future loss of earning capacity.

E. Is Mr Rahman entitled to any Fox v Wood damages?

1. Fox v Wood (1981) 148 CLR 438 damages refer to the income tax component of the weekly workers compensation a plaintiff employee must repay to the workers compensation insurer upon recovery of common law damages from a third party.
2. The underlying principle is explained in "Assessment of Damages for Personal Injury and Death" (5th e., 2021) by Luntz and Harder at p.525 [4.8.3] as follows: "A lump sum award of damages is not taxed: see [6.7.2]. Periodical payments of workers' compensation, on the other hand, are subject to income tax. Where the workers' compensation statute provides for repayment of the benefits to the employer or statutory fund, the gross income replacement benefits paid have to be reimbursed, though the worker would have received only the net amounts after payment of income tax. Since the damages are calculated on net loss of earnings, workers would lose the amount of the tax. In Fox v Wood, the High Court held that payment of tax on workers' compensation weekly benefits is such a natural and foreseeable consequence of injury that the amount of tax must be included in the damages as an additional item of loss. It is irrelevant whether the tax has already been paid when damages are assessed. However, if the worker obtains a refund of the tax from the Commissioner of Taxation, then no such loss is sustained and the damages should not include this Fox v Wood component, though it may include costs incurred in obtaining the refund. Subject to this, the Fox v Wood component should not be discounted for contingencies."
3. Fox v Wood (1981) 148 CLR 438 was an appeal from South Australia, where the statute requiring repayment was the Workmen's Compensation Act 1971.
4. In New South Wales the relevant statutory requirement is found in s.151Z(1) of the Workers Compensation Act 1987.
5. In the present case, Mr Rahman received weekly workers compensation payments which he will be required to repay. The weekly payments are set out in a schedule provided by the workers compensation insurer, EML. The schedule shows that the total tax paid on the weekly payments was $69,183.20.
6. I understand that the defendant accepted that if the Court allows Fox v Wood damages then it should be in that amount.
7. I will therefore allow $69,183.20 for Fox v Wood damages.

F. Is Mr Rahman entitled to any damages for treatment expenses (or out of pocket expenses) for the past?

1. In his Statement of Particulars Mr Rahman claimed that as a result of the accident he has required a range of treatments which have been paid by himself, Medicare, the workers compensation and CTP insurer and/or other resources.
2. The defendant accepts that Mr Rahman's damages should include an allowance for past treatment expenses in the sum of $65,870.37. That amount is made up as follows: Paid by the workers compensation insurer (EML) $53,961.09 Paid by Medicare $647.10 Paid by the defendant's CTP insurer $11,262.18 $65,870.37

1. I will allow damages for past treatment expenses in that amount.
2. I note that the defendant is entitled to a credit, or defence as it is put in the section, for the $11,262.18 paid by his CTP insurer, by virtue of s.83(5) of the Motor Accidents Compensation Act, 1999.

G.Is Mr Rahman entitled to any damages for treatment expenses (or out of pocket expenses) for the future?

1. In his Statement of Particulars Mr Rahman claimed that he will require ongoing physiotherapy, exercise physiology, pain management, analgesic medication, antidepressant medication, sleeping medication, pain management medication (namely Endep) together with psychological counselling, GP reviews and reviews from an orthopaedic surgeon. No figures were suggested.
2. Mr Rahman did not refer to future treatment or out of pocket expenses in his Schedule of Damages.
3. The defendant's primary submission was that no award should be made for future treatment by reason of the assessments of Dr Newlyn (Written Submission par 62). I have already explained why I do not accept the opinions of Dr Newlyn.
4. In oral submissions the defendant submitted that in reading Dr Newlyn with the other medical opinions, some allowance is rightly to be made for future treatment expenses, but given the imprecision and lack of evidence offered by Mr Rahman, probably the only fair way to assess it is a buffer amount.
5. In arriving at an amount for a such a buffer the defendant submitted that it would be appropriate to use the past as a guide for the future. The defendant submitted that bearing in mind the total past treatment expenses (in round figures $65,000), the Court might allow $50,000, or $40,000, or $20,000 for the future. The defendant submitted that it does seem that ongoing treatment expenses have been incurred, but not at the level of the past. The defendant submitted that it would be appropriate to allow a buffer of $25,000, given it is for the future.
6. I accept these submissions. I will allow the sum of $25,000 for future treatment expenses by way of a buffer.

H. Is Mr Rahman entitled to any damages for attendant care services for the past?

1. In his Statement of Particulars, Mr Rahman gave particulars of a claim for past domestic assistance in the following terms: "The Plaintiff has required significant ongoing assistance from his wife since the accident. He has been in significant pain from the date of the accident and to date. The Plaintiff's wife undertakes some 10 to 15 hours of additional work per week.".
2. Mr Rahman did not address the topic in his Schedule of Damages.
3. In written submissions, the defendant submitted that: 236.1 No award of compensation for attendant care services ought to be made. 236.2 The Court ought to accept the opinions of Spiros Katzakis, Occupational Therapist, expressed in his report of 10 July 2020, in preference to the opinions of Dr Davis, Occupational Physician, expressed in his report of 6 May 2019. 236.3 No award ought to be made because the provisions of s.141B of the Motor Accidents Compensation Act 1999 have not been satisfied.

H.1 Legal principles ~ damages for attendant care services past and future

1. Under the common law these would be called Griffiths v Kerkmeyer damages.
2. In Griffiths v Kerkmeyer (1977) 139 CLR, the High Court held that in a claim for personal injury the plaintiff was entitled to recover an amount equivalent to the commercial cost of nursing and domestic services which had been provided in the past and would be provided in the future by the family or friends of the plaintiff: CSR v Eddy [2005] HCA 64, (2005) 226 CLR 1 at 8-9 [6] per Gleeson CJ, Gummow and Heydon JJ (Callinan J agreeing).
3. In Van Gervan v Fenton (1992) 175 CLR 327, the High Court affirmed that the true basis of the claim was the need of the plaintiff for the services; that the plaintiff did not have to show that the need was or might be productive of financial loss; and that the plaintiff's damages were not to be determined by reference to the actual cost of the plaintiff having the services provided or by reference to the income forgone by the provider, but by reference to the cost of providing those services generally in the market: CSR v Eddy at [7].
4. The relevant need is the need of the plaintiff for those services provided to him or her: CSR v Eddy at [20]; also [110] per McHugh J.
5. Griffiths v Kerkemeyer damages are awarded to plaintiffs to compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, not to compensate them for the cost of services which because of their incapacity they cannot render to others: CSR v Eddy at [21].
6. Section 141B of the Motor Accidents Compensation Act, 1999 applies to this part of Mr Rahman's claim. It concerns an award of damages for "attendant care services". They are defined as services that aim to provide assistance to people with everyday tasks, and include (for example) personal assistance, nursing, home maintenance and domestic services (s.3).
7. The section only applies to services for which the plaintiff "has not paid and is not liable to pay" (s.141B(1)(b)). In other words, it only applies where the services have been or are to be provided gratuitously, as opposed to commercially, by a commercial service provider who has been or will be paid for the services they have or will provide.
8. Under s.141B(2), no compensation is to be awarded if the services would have been provided to the plaintiff even if they had not been injured by the motor accident.
9. Under s.141B(3), no compensation is to be awarded unless the services have been provided or are to be provided (a) for at least 6 hours per week and (b) for a period of at least 6 consecutive months.
10. Otherwise, the amount of compensation must not exceed the limits set by s.141B(4) and (5).
11. Section 126 of the Motor Accidents Compensation Act, 1999 also applies to the extent that the claim is for future attendant care services. That conclusion follows from the decision of the Court of Appeal in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146, (2018) 98 NSWLR 171 considering the similarly worded s.13 of the Civil Liability Act 2002 in this context.
12. For the same reasons that the court can allow a lump sum as a buffer for future lost earning capacity, it can allow a buffer for future Griffiths v Kerkmeyer or attendant care services. An example is provided by Jackson v Mazzafero [2012] NSWCA 170 (Hoeben JA; Macfarlan JA agreeing).

H.2 Mrs Yeasmin's evidence

1. Mrs Yeasmin gave evidence about attendant care services in her written statement and in her oral evidence.
2. In her written statement she said that she had a cesarean section on the birth of her second child only months before the accident and that it took her a long time to be able to get back to full function. She said that Mr Rahman was very hands on "more so than usual" with the housework and the children. She said that he attended to almost everything around the home including cooking, cleaning and helping her take care of the children before the accident.
3. After the accident, however, she said that her husband was extremely limited in the housework and accordingly, she had to take basically all aspects of the housework. She estimated that she attended to mopping, vacuuming and general cleaning approximately 3 to 4 times each week for about 30 minutes each time. This would add up to 90 to 120 minutes per week. Some of this time was spent cleaning up after the children. She said that about once a fortnight she wiped down all the windows for the balconies and the bedrooms, and dusted and wiped down the blinds, which takes about an hour on each occasion. That would amount to 30 minutes per week for those tasks. She said that she attended to the cooking about 5 days a week spending 3 hours cooking and preparing meals a day. This would give a total of 15 hours over a week. She said that she attended to the laundry twice a week which took her about an hour each time. She said that she had cleaned the bathroom and toilet approximately twice a week for about 45 minutes each time and that "I did not have to do this at all before the accident". She stated that "In total, I estimate that I spend an extra 10 - 12 hours per week of housework since the accident because my husband has not been able to help me.". She also stated that "If we could afford the assistance of a cleaner, we would accept this service with open arms.".
4. In her oral evidence Mrs Yeasmin said that Mr Rahman used to do most of the things like cooking and cleaning because she got pre-eclampsia. This probably tied in with her written statement that her husband was very hands on "more so than usual" prior to the accident, although it was not explored in cross-examination.
5. In her oral evidence Mrs Yeasmin said that she went to Bangladesh with the children in October 2017 for 2 ½ months. She cannot have been attending to house work, cooking and cleaning for Mr Rahman whilst she was away.
6. She agreed in cross-examination that Mr Rahman was still doing some housework after the accident.
7. However, she was firmly of the view that from the time of the accident up to the time she was giving her evidence at the hearing, Mr Rahman was not doing any more vacuuming, he was not doing any more cleaning and he was not doing any more cooking. She reaffirmed that "he was extremely limited in housework", but before the accident "he was doing everything". She rejected the suggestion that in the 6 years since the car accident her husband had done housework to her observation. She said that he was not participating. When asked if he is not doing any housework at all, she responded "maybe if he need to take a glass of water, some time he do that himself, yeah". When asked why he was not doing something like cleaning up the dishes, Mrs Yeasmin responded "Maybe standing next to the sink for that long is not happening for him, and like, comfortable for him anymore.". She rejected the suggestion that Mr Rahman was doing other jobs and they shared responsibility in that way. She confirmed that Mr Rahman was not doing the things that she had referred to in her statement (which I have set out above) "and he is not doing those things still up until today".
8. Mrs Yeasmin said that her husband "slowly stopped" doing things like washing dishes and cleaning the floor after the accident. She said that the change happened slowly and gradually but that it was a drastic.
9. Once again, I have no hesitation in accepting Mrs Yeasmin's evidence.

H.3 Mr Rahman's evidence

1. Mr Rahman did not give any evidence on this topic.

H.4 Dr Davis and Mr Katzakis

1. I have already referred to the report of Dr Davis dated 6 May 2019. He is a general practitioner consulting in occupational medicine. At the time of his report he considered that Mr Rahman would experience aggravation with various activities such as food preparation, cleaning carpets, scrubbing floors, moving heavy furniture, vacuuming, ironing and dusting.
2. Dr Davis said he considered "a need has been created to provide (Mr Rahman) with 8 hours of paid commercial domestic assistance per week, to include childcare, until his youngest child reaches school age, at which time such assistance may be reasonably reduced to 4 hours per week on a continuing basis".
3. Dr Davis does not explain how he arrived at the figure of 8 hours per week or how that might be broken down into the various activities of food preparation, cleaning carpets, scrubbing floors, moving heavy furniture, vacuuming ironing and dusting. He does not explain why there is a need to provide domestic assistance for childcare or how that relates to the number of hours he has chosen.
4. As I have mentioned and the High Court has said, a claim for gratuitous attendant care services is awarded to plaintiffs to compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, not to compensate them for the cost of services which because of their incapacity they cannot render to others. Domestic assistance for childcare would fall into the latter category. A plaintiff can claim damages on that account pursuant to section 15B of the Civil Liability Act 2002: White v Benjamin [2015] NSWCA 75 at [69]; but Mr Rahman has not pleaded or particularised such a claim in these proceedings.
5. For those reasons I can take little, if anything, from Dr Davis's report.
6. The defendant relied upon the report of Mr Spiros Katzakis, an occupational therapist, dated 10 July 2020 but made limited submissions about how I should use this report. I do not place any reliance on this report, essentially for the reason that Mr Katzakis' opinions, whilst based on his own observations of Mr Rahman on 22 June 2020, are based significantly upon his own review of various medical reports, a number of which I have not accepted. Chief among them are the 3 reports of Dr Rimmer I have discussed earlier in these reasons.

H.6 The defendant's oral closing submissions

1. The defendant submitted that having heard from Mrs Yeasmin, looking at her statement and taking into account the matters raised with her in cross-examination the double threshold required by section 141B of at least 6 hours a week for a period of 6 months had not been met. The defendant also submitted that the particularised claim was imprecise, with the consequence that no loss could be awarded under this head.

H.7 My analysis and conclusions

1. I accept Mrs Yeasmin's evidence that prior to the accident Mr Rahman attended to almost everything around the home including cooking, cleaning and helping her take care of the children.
2. I find that after the accident Mr Rahman gradually became incapacitated from undertaking those tasks because of the injuries and disabilities caused by and arising from the accident and that as he ceased doing them Mrs Yeasmin undertook them instead.
3. There is no direct evidence about how long this gradual process of change took to take full effect. I infer that it must have been near enough complete by the time that Dr Wilton certified Mr Rahman as having no capacity for any employment at all. That occurred on 16 March 2018.
4. I accept Mrs Yeasmin's evidence that this state of affairs continued up to the time of the hearing.
5. It follows that the second requirement of s.141B(3) is made out: the services provided by Mrs Yeasmin to Mr Rahman up to the time of the hearing have been provided for a continuous period well in excess of 6 consecutive months.
6. What of the requirement that these services be provided for at least 6 hours per week?
7. Mrs Yeasmin estimates that she has spent an extra 10 to 12 hours per week attending to housework since the accident because Mr Rahman has not been able to help her. That housework has included mopping, vacuuming and general cleaning, cleaning windows and blinds, cleaning the bathroom and toilet, and attending to the laundry. This evidence was not challenged in cross-examination.
8. Mrs Yeasmin estimates that she has spent 15 hours a week cooking.
9. I must bear in mind a number of matters about this evidence: 274.1 Firstly, I am only concerned with time that Mrs Yeasmin spent doing things for Mr Rahman that he used to do for himself (albeit that he also did them for everyone else too) - things like cooking, cleaning et cetera. 274.2 Secondly, some of the work undertaken by Mrs Yeasmin, she did for herself and for the children. The most obvious example is provided by cooking. In cooking for all members of the household (as Mr Rahman had done in the past), Mrs Yeasmin was cooking for herself, the 2 children and Mr Rahman. Although it is important to bear in mind also that by mid March 2018 their younger child was only one year old. Even if one divides Mrs Yeasmin's estimate of 15 hours for cooking by 4, for the number of people in the household, this would allow 3.75 hours per week cooking for Mr Rahman. 274.3 Thirdly, whilst some of the cleaning may have related particularly to the children, for example cleaning up after them, much of the work undertaken was work to satisfy the co-mingled needs of a husband and wife and no clear line can be drawn between the services required by Mr Rahman and those which benefit his wife and children. See Avopiling at [14]-[15] and [70]-[75].
10. Having regard to all those matters I accept that Mrs Yeasmin has spent at least 6 hours per week attending to the various matters for Mr Rahman since 16 March 2018. In all the circumstances, I assess the time spent as 7 hours per week over that period.
11. There was no evidence adduced about the hourly rate the court should apply. In those circumstances, the applicable rate is 1/40 of the average weekly total earnings of all employees in New South Wales: s.141B(6). The average rate from 16 March 2018 to 15 May 2023 was $33.10. After 16 May 2023 the rate was $34.99. I will use those rates.
12. I calculate the sum that Mr Rahman is entitled to by way of past attendant care services as follows: 1. For the period for 16 March 2018 to 15 May 2023, being 269.5 weeks at $33.10 per hour for 7 hours per week: $62,443.15. 2. For the period from 16 May 2023 to 24 April 2024, being 49.3 weeks at $34.99 per hour for 7 hours per week: $12,075.05.
13. The total is $74,518.20 and I allow that amount for past attendant care services.

I. Is Mr Rahman entitled to any damages for attendant care services for the future?

1. In his Statement of Particulars Mr Rahman set out a claim for "future commercial care" on the basis that he will require ongoing assistance domestically, that may either be provided by his wife, or preferably by commercial care. A claim for future commercial care is made for 10 hours per week for the balance of Mr Rahman's life expectancy. In the alternative, the claim is made for gratuitous care of 12 hours per week for the same period. In the still further alternative, a buffer is claimed.
2. The life expectancy of a 40-year-old male in New South Wales on the latest Australian Life Tables (2020-2022) is 42.48 years.
3. In closing submissions, the defendant submitted that if the court were to grant Mr Rahman something for commercial attendant care services in the future, it would only be for a period of a year or 2, and certainly not for life.

My assessment of Mr Rahman's damages for future attendant care services

1. In my opinion the assessment of Mr Rahman's need for future attendant care services is just as fraught with uncertainty as the assessment of his future loss of earning capacity. I say that essentially for the same reasons, but particularly because: 282.1 There is very little medical evidence about what is likely to happen in the future about his likely physical and psychological recovery. 282.2 The course of future events for Mr Rahman is very difficult to predict with any degree of confidence. 282.3 It is quite possible that his psychological state may improve, rather than remain static or deteriorate. 282.4 His physical symptoms are likely to have exacerbations and remissions, according to Doctor Giblin. They may even improve. 282.5 It is likely that his present level of need for attendant care services will continue for the immediately foreseeable future, but for how long afterwards, if at all, is quite uncertain.
2. Given these general uncertainties, there must be equal uncertainty over whether Mr Rahman would continue to meet the double threshold of at least 6 hours per week for a period of at least 6 consecutive months for gratuitous services into the future.
3. I accept Mrs Yeasmin's evidence that if they could afford the assistance of a cleaner, they would accept this service with open arms. This evidence of direct intention is consistent with what one would anticipate would happen in the circumstances of Mr. Rahman's family, which include the fact that Mrs Yeasmin has her own full-time job and that cleaning services are not the kind of personal domestic assistance which one spouse may prefer to obtain from another, but rather services which are readily available and availed of by those who can afford them and who are otherwise engaged in remunerative employment: White v Benjamin [2015] NSWCA 75 at [88] (Basten JA). There is no reason to believe that Mr Rahman would take a different view. I find it more likely than not therefore that Mr Rahman would available himself of commercial cleaning services in the future.
4. Cooking services, it seems to me, are in a different category. They are the kind of personal domestic assistance which one spouse may prefer to obtain from another. I find it unlikely that Mr Rahman would avail himself of commercial cooking services in the future.
5. I assume all those matters for the purposes of section 126 of the Motor Accidents Compensation Act 1999.
6. Having regard to all those matters I will allow a buffer of $50,000 for the future.
7. This is about two-thirds of the amount I have allowed for past 6 years.

J. Summary

1. In summary I assess Mr Rahman's damages as follows:
2. Non-economic loss Nil
3. Past economic loss $212,405
4. Future economic loss $150,000
5. Fox v Wood damages $69,183.20
6. Past medical or treatment expenses $65,870.37
7. Future medical or treatment expenses $25,000
8. Past gratuitous attendant care services $74,518.20
9. Future attendant care services $50,000 TOTAL $646,976.77

K. Who should pay the costs of the proceedings?

1. The defendant requested that submissions on costs await receipt of the Court's reasons for judgment given these proceedings were commenced following an award of compensation by the Personal Injury Commission and regulated costs provisions apply, especially for the short period the plaintiff retained legal representation in this Court.
2. Mr Rahman did not speak against that proposal.
3. I will therefore defer making any costs order until the parties have had the opportunity to consider these reasons for judgment. I will list the matter on 1 May 2024 to hear argument about costs.

L. My orders

1. I make the following orders: 1. Judgment for the plaintiff in the sum of $646,976.77. 2. List the matter before me on 1 May 2024 at 10.00 am to hear argument about costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2024