Certificate issued under s 7.36(4) of the Motor Accident Injuries Act 2017 (the Act)

Assessment of claim for damages under Division 7.6 of the Act

1. Liability is apportioned equally between the claimant and the insured driver as to responsibility for the accident.
2. The amount of damages in respect of this claim is $439,185.95 after allowing for the claimant's contributory negligence as found.
3. The amount of the claimant's costs, assessed in accordance with the Motor Accidents Injuries Regulation 2017, taking into account the amount of damages in respect of this claim is $40,809.04 inclusive of GST.
4. Details of the assessment and reasons for this decision are attached to this Certificate.

Common law claim - Motor Accident Injuries Act 2017

1. Kristy Lee Wakeling (the claimant) was involved in a motor accident on 3 September 2021 about 10.00am. There is no dispute that the claimant was the driver of a 12-seater mini-bus that collided with the rear of the insured vehicle at an intersection near Wagga Wagga Base Hospital ("the accident"). What is disputed is how the insured vehicle came to be in front of the claimant's vehicle and in what lane(s) the insured vehicle was situated when the collision occurred.
2. NRMA (the insurer) indemnifies the owner and/or the driver of the insured vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (Act). By its Liability Notice dated 2 April 2024, the insurer denied liability for the claimant's common law damages claim, on the basis that there was no breach of the duty of care owed by the insured person to the claimant. The dispute pertains to breach of the insured's duty of care.
3. As the claimant has a concurrent worker's compensation claim against her employer, the insurer has not paid any statutory benefits, relaying upon s 3.35 of the Act, as well as its denial of liability.
4. At the time of the accident, the claimant was working as a disability support worker. Her job was mainly driving a community bus owned by her employer. Her role was to collect and transport supported persons. On the day of the accident, the claimant was the sole occupant of the bus, which was being driven in a northerly direction along Docker Street at Wagga Wagga. After stopping at, and passing through, the intersection with the Sturt Highway controlled by traffic lights, the claimant's vehicle proceeded along Docker Street to the intersection with Morgan Street. At that point, the right front corner of the bus struck the left rear corner of the insured vehicle, whilst it was in the process of turning right into Morgan Street, in circumstances that are disputed.
5. The claimant had to brake heavily and was thrown up and down significantly in her seat, landing heavily on her tailbone. She was aware of immediate low back as well as bruising across her abdomen due to the seatbelt. Police attended the accident scene. The claimant was collected by her work colleagues who took her to the office where an incident report was prepared. The claimant was sent home and rested over the weekend. She consulted her GP several days later and was diagnosed with a whiplash type injury. The claimant returned to light duties and eventually managed to return to work on her usual full-time duties.
6. Over the next few weeks, the claimant noted increasing low back pain, which subsequently radiated into her right leg. She consulted an osteopath as her leg pain worsened. The osteopath suggested a possible causal connection with the accident. Eventually, the claimant presented to hospital, complaining of pain down the back of her right leg to her foot. Several injections provided no lasting relief.
7. Given her failure to settle, the claimant came under the care of a neurosurgeon, Dr Ow-Yang, who performed a lumbosacral fusion in July 2020. This provided some improvement with her right leg pain but the claimant still had residual symptoms in her leg of weakness and dysesthesia. She also has ongoing back pain, particularly with sitting, on a background of a pre-accident history of complaints of sciatica. The claimant has not returned to work since her lumbar surgery.
8. The claimant also has been diagnosed with depression and anxiety, chronic pain and PTSD. She is under the care of a treating psychiatrist and psychologist.

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

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

(b) liability for the accident / ISSUE 2;

(c) the medical consequences of the accident / ISSUE 3;

(d) amount of damages for non-economic loss / ISSUE 4;

(e) amount of damages for past economic loss / ISSUE 5, and

(f) amount of damages for future economic loss / ISSUE 6.

There is no claim for past gratuitous care, nor future care, either on a gratuitous or commercial basis. Nor are claims made for past or future treatment expenses.

DETERMINATION OF ISSUE 1 - THE CLAIMANT'S CREDIT

1. The insurer challenged the claimant's credit on two main bases:

(a) the inclusion of tax-deductible work-related expenses in her post-accident tax returns for periods when the claimant was not engaged in paid employment, and

(b) her repeated denial of a pre-accident history of sciatica notwithstanding the objective evidence of her treating doctor's clinical notes.

1. As to (a) above, I note that the claimant remained in employment, notwithstanding that she was in receipt of worker's compensation benefits. I accept the claimant's evidence that some of her claimed expenses may have related to her attendance at medical appointments related to her claim. I also accept the claimant's evidence that she has taken steps to see that her accountant adjusts any anomalies in her tax returns.
2. As to (b) above, I am concerned that the claimant, under cross-examination by Mr Jones, repeatedly denied having problems with her back and suffering symptoms of sciatica, prior to the subject accident. It appears that the claimant also gave that false history to the orthopaedic surgeon, Dr Geoffrey Rosenberg, who was qualified by her solicitors. The claimant also denied that pre-accident history to Dr Todd Gothelf, orthopaedic surgeon, who was qualified by the insurer's lawyers.
3. Dr Gothelf noted the relevant entries in the pre-accident clinical records to the claimant who maintained she could not recall a prior back issue and had not seen a specialist for her back, prior to the subject accident. As observed by Dr Gothelf, an entry dated 2 October 2019 in the Kooringal Medical Centre clinical notes states that a CT scan shows disc protrusion at L5/S1 with nerve root impingement on right at S1, for which the claimant was referred to a neurosurgeon and likely will need surgery, back likely to be a problem for some time. Dr Gothelf noted that medical entries continued until 22 June 2020 with no mention of lower back condition since 14 October 2019. I note that the claimant consulted Dr Enis Sedrak on

21 December 2020 when it was noted the reason for contact was back pain with radiculopathy upon a history of musculoskeletal back pain and sciatica (insurer's bundle page 347). 4. It may be that the other multifarious medical conditions recorded in the treating doctors' clinical notes (of which it is not necessary to recite details) may have caused the claimant to lose sight of her pre-accident back condition. However, that might be, in giving her evidence, the claimant was at times unclear and imprecise. Nevertheless, I accept that the claimant was doing her best, in difficult and unfamiliar circumstances. The claimant did not strike me as being deliberately dishonest. Whilst the claimant's evidence about her pre-accident medical history causes me some disquiet, I accept that she generally is a truthful witness.

DETERMINATION OF ISSUE 2 - THE MEDICAL CONSEQUENCES OF THE MOTOR ACCIDENT

1. Assessment of the claim requires, amongst other things, a consideration of the medical evidence.
2. As to the claimant's physical injuries and impairments, there is little dispute. The evidence of the parties' respective orthopaedic specialists is very similar. Dr Rosenberg diagnosed a lumbosacral disc injury which required a fusion. He assessed 20% whole person impairment (WPI) utilising the AMA Guides 5th Edition and the NSW Worker's Compensation Guides, 4th Edition. He deducted 10% for pre-existing degeneration, which calculates to 18% WPI. He added 3% WPI for residual symptoms despite surgery and another 2% WPI for the effect on activities of daily living which equates to 22% WPI.
3. The insurer's Dr Gothelf provided the following diagnosis:
   • Lumbar spine strain, aggravation of pre-existing degenerative L5/S1 disc herniation with right-sided S1 radiculopathy. A CT of the lumbar spine 25 November 2021 revealed degenerative changes at the L5/S1 with posterior osteophytes contacting the right S1 nerve. Surgery was performed 5 July 2022 for a right L5/S1 decompression and fusion. Ms Wakeling reported persistent radicular symptoms down the right leg, with positive nerve root retention signs, loss of ankle reflex, 4/5 gastric muscle strength, and loss of sensation in the right S1 nerve distribution, which satisfies s 138 page 108 of the Motor Accident Permanent Impairment Guidelines (Guidelines) criteria for a radiculopathy.

1. I reject Mr Jones' submission that I should not be satisfied the claimant's need for surgery was due to the motor accident. Whilst he made a valiant attempt to walk back from Dr Gothelf's report, I am satisfied, based upon the parties' medical evidence, that the claimant's

pre-existing back condition was aggravated by the spinal trauma that she suffered in the motor accident, causing her to come to spinal surgery. 2. As to the effects of the accident on the claimant's mental health, I note that the insurer's qualified psychiatrist, Dr Yajuvendra Bisht gives a diagnosis of major depressive disorder with anxious distress, as per DSM-5, directly and causally related to the subject accident. Dr Bisht does not consider the claimant fit for her pre-injury employment. Although she has some residual working capacity, from a psychological/psychiatric perspective. If Dr Bisht provided an assessment of whole person impairment, it is not in evidence before me. 3. The claimant's qualified consultant psychiatrist, Dr Ben Teoh, makes a diagnosis of Chronic Post-Traumatic Stress Disorder (DSM-5 Diagnostic Criteria), which he attributes to the subject motor accident. Dr Teoh thinks that the claimant is fit for suitable duties, and that her prognosis is poor, as her condition has become chronic. He assesses 15% WPI utilising the psychiatric impairment rating scale (PIRS). 4. I note that the insurer concedes the claimant satisfies the 10% threshold for an award of damages for non-economic loss (s 4.11 of the Act).

DETERMINATION OF ISSUE 3 - LIABILITY FOR THE ACCIDENT

1. The claimant submits there is no doubt that the insured breached her duty of care, owed to the claimant, causing significant injuries.
2. The claimant submits that the insured driver caused the accident by merging into the claimant's lane and stopping, without any warning, in circumstances that did not provide the claimant with adequate time to stop and/or avoid the accident.
3. It is submitted that version of events is consistent with the following:

(a) claimant's statement dated 2 May 2024;

(b) Valmar Incident Report Form dated 3 September 2021;

(c) statement of Colleen Healy dated 1 August 2023, and

(d) what is recorded in the Police documents, including the Police report dated

29 February 2024.

1. In addition to the above, the claimant's allegations are that the insured stopped, once she merged in an unsafe manner into the claimant's lane, and stopped when it was unsafe to do so, and stopped without activating her blinkers to indicate an intention to make a right-hand turn.
2. The claimant submits that the insured's version of events is not consistent in what is recorded in the remainder of the evidence and is consistent with the claimant's contention that the accident occurred because the insured abruptly, and negligently, stopped in front of the claimant's vehicle, causing a collision in circumstances where the claimant did not have enough time to stop her vehicle.

1. The insurer submits that the insured driver did not breach her duty of care to the claimant and was not negligent for the accident.
2. The insurer adopts the notation in the Police report (R2 and R5) which states:

"About 9.55am on Friday the 3rd September 2021, the insured vehicle was traveling north bound on Docker Street when approaching the intersection of Morgan Street, Wagga Wagga. The insured driver indicated before coming to a stop in lane 2 due oncoming traffic. Unfortunately, the claimant at that very time failed to observe the indication and slowing of the insured vehicle which undoubtedly resulted in a small collision. Both vehicles only sustained minor damage before they were respectively driven into Morgan Street."

The insurer contends that the insured driver had her right-turn indicators on when turning and shortly before she began to execute the turning manoeuvre.

1. The insurer notes that the owner of the insured vehicle lodged a property damage claim with the comprehensive insurer of that vehicle which, in turn, sought recovery from the insurer of the vehicle driven by the claimant. That insurer accepted liability for the property damage claim on 14 September 2021 (R6).
2. The insurer submits that the photographic evidence of damage to both vehicles shows the insured vehicle to have damage to the rear and mostly the left rear side and that the damage to the claimant's vehicle is to the right front side. I accept that submission as the photographs speak for themselves.
3. The insurer submits that such damage could not have occurred if the insured driver had swerved in front of the claimant's vehicle, from the left-hand lane, as the claimant alleges.
4. The insurer submits that the more likely scenario is that the damage was sustained when the claimant attempted to avoid colliding with the rear of the insured vehicle by manoeuvring her minibus to the left.
5. The insurer submits that the totality of the evidence supports the claimant's having been at fault for the accident. The insurer contends the claimant failed to keep a proper lookout and failed to keep a safe distance from the vehicle in front.
6. The insurer finally submits that, if the insured driver is found to have been somehow negligent, the claimant was clearly not paying attention to the road and vehicle in front and did not leave a safe and reasonable space with the vehicle in front, failing to avoid colliding into the rear of that vehicle. Hence, a reduction should be made for contributory negligence.

1. The claimant completed her employer's Incident Report Form (claimant's document 2.1) on the day of the accident. The claimant relevantly wrote as follows:

"I was driving along Docker Street and ran into a car turning right into Morgan Street. I did not see her blinker and she stopped suddenly not giving me time to stop in time, which led to me running into the back of her car!"

The claimant's Personal Injury Claim Form has not been placed into evidence by either party.

1. The relevant sections of the Police report have been stated previously.

Claimant's Statement dated 2 May 2024 (claimant's document 1.1)

1. The relevant paragraphs of the claimant's statement are as follows:

"10. I was driving north bound on Docker Street and stopped at a red light on the intersection of Docker Street and Edward Street (adjacent to the Wagga Wagga Base Hospital). When the light turned green, I continued through the intersection and continue to drive north along Docker Street which, at that point, is a dual-lane road. I was driving in the right hand lane. Just prior to the intersection of Docker Street and Morgan Street, a red vehicle in the left hand lane suddenly swerved into my lane in front of me and immediately slammed on his brakes. The vehicle did not have its indicator on.

1. I was travelling at no more than 50 km/h at the time of the accident. I was concentrating on the road and looking straight ahead. I had a clear view of the other vehicle when it swerved in front of me. I did not have enough time to stop and collided up the back of the vehicle. On impact, I was thrown upward off the seat and came down hard on my tailbone colliding with the seat underneath me.
2. I proceeded to get out the bus. The driver of the other vehicle had already exited her vehicle. She seemed to be shaken up and I assisted her to sit down on the gutter. The name of the other driver was Colleen Goode. We had a conversation in words to the following effect:

Colleen said: "I'm from Cootamundra and had just been at the hospital. I saw the Morgan Street sign and was planning on going to the bakery.... before I went home."

I said: "You crossed into my lane and didn't have your blinker on."

Colleen said: "I'm so sorry. I didn't know where I was going. I just saw the Morgan Street sign and moved across."

1. I made a call to the Police Station on my mobile phone to notify them of the accident. In the meantime, two of my colleagues from Valmar arrived at the accident scene."

Statement of Collen Healy dated 2 August 2023 (claimant's document 1.2)

1. The relevant portions of this statement are as follows:

"3. I parked my car in front of a red car, which I later found out belonged to the other driver. This had damage to the back of the car. I went and spoke to Kristy near the accident site. Kristy appeared all shaken up and seemed upset. She said "I didn't see the indicator of the car" and was questioning if the driver of the other car had their indicator on.

1. From what I can remember about the accident on the day, I thought Kristy had been driving along Docker Street and was turning right into Morgan Street. The other driver was coming in the opposite direction and turning left in Morgan Street. Kristy definitely ran into the back of her car but said she didn't her indicator on."

I note that Ms Healy gives a version of events which is quite different from the parties' descriptions, in that Ms Healy says that the parties were driving in opposite directions, and that the claimant's vehicle collided with the insured vehicle as both were turning into Morgan Street. That discrepancy is not surprising as Ms Healy was not an eyewitness to the accident.

1. In her oral evidence, the claimant resiled from her statement that the insured vehicle suddenly stopped in front of her. The following passages appear in the transcript at pages 50 to 52:

"Mr Jones: So you accept when you say in your statement and in that form that the other vehicle stopped, that is not true?

Mr Jones: You see, you said before that - as I understand your version of events it swerved in suddenly, no blinker.....

Mr Jones: And then you ran in to the back of it without it stopping at all. So you say when you said it stopped suddenly in your statement and in the form......

Ms Wakeling: No. Yeah, so she's come over to stop but because it's all one motion, it's all just like she's come over and I've gone boom straight at the back of her.

Mr Jones: So it didn't stop at all? That's what I am suggesting, Ms Wakeling. When you say it stopped suddenly, slammed on its brakes..........

Mr Jones: Well, you said in your statement it came in front of you and immediately slammed on its brakes but now you're describing a single motion, swerving in and it doesn't stop. This is your statement, Ms Wakeling. You see:

The red vehicle in the left hand lane swerved suddenly into my lane in front of me and immediately slammed on its brakes.

Ms Wakeling: Yeah. So if the blinker wasn't on, may be the brake lights didn't work, I don't know but the blinker wasn't on and she just pulled out in front of me so I don't recall the brake lights, I'm sorry about that, but I know she definitely didn't have her blinker on.

Mr Jones: See Ms Wakeling, what I want to suggest to you is that because you enjoyed your job and because of fears about what might happen to you at the job that you have given a version of events which doesn't put you at fault, it was the other driver at fault?

Mr Jones: What I want to suggest to you is you weren't keeping a proper lookout?

Mr Jones: You didn't see the vehicle in front of you slowed down and stop.

Ms Wakeling: No. I do not go with that at all. I was good at what I did, massively good at what I did. As I drove all the roads all day, every day, I knew every road, every back road where you had to slow down. I knew those roads. I did nothing wrong that day."

1. At page 81 of the transcript, the following excerpt appears:

"Mr Jones: You said you didn't have time to swerve so you just continued straight?

1. At pages 137 to 141 of the transcript, the following appears:

"Member: From the moment that you went through the traffic light controlled intersection, how long before the collision occurs?

Member: And what were you doing during those few minutes from the time you went through the traffic lights intersection to the impact?

Ms Wakeling: I was just driving. As I said, checking my speed, looking at my surroundings, driving my bus, doing the right thing.

Member: When did you first see the red car driven by?

Ms Wakeling: It was pretty much at the same time as it all happened. Yeah. It's not far so she obviously come through the lights and then straight over. Yeah.

Ms Wakeling: No, I don't think so. Well, I mean, I would have been checking my surroundings but I wouldn't have pin-pointed exactly that car at the time, if that make sense.

Member: Do you recall seeing that car passing you on the left?

Ms Wakeling: No, because she come over as - too quick, yeah. Like I remember seeing her quickly but then I wasn't expecting her to come across into the lane.

Member: So do you recall seeing her passing you on the left? Is that your evidence?

Ms Wakeling: Can I just think in my head for a second?

Ms Wakeling: Yeah, because I just don't see how to explain it in words but only seen her coming across.

Member: So you don't recall seeing her going past you?

Member: ..........(not transcribable).... She had not going past you and she wasn't in front of you.

Ms Wakeling: I mean, I thought you meant like did she fully go like drive past me or, sorry, say your question again.

Member: Your evidence is in your statement, is it not?

Member: That this lady came from the left hand lane?

Member: Do you recall seeing her going past you on the left?

Ms Wakeling: Yes, she was visible on my left, yes, but I wasn't expecting her to come straight across into my lane. It all happened very quickly.

Member: And after she went past you on the left, how far do you estimate she was in front of you before she pulled into your lane?

Ms Wakeling: Very close, it wouldn't be - like it's very, very short.

Member: Are you able to estimate the speed that she was travelling at the moment she went past you?

Ms Wakeling: No, I wouldn't be able to estimate that.

Member: So your evidence is that she went past you and almost instantaneously pulled into your lane and stopped?

Statement of Colleen Goode (insured driver) dated 14 July 2024 (R3)

1. The relevant portion of this statement is as follows:
   1. The following is in answer to questions asked of me in regard to this matter:
      • Where my right indicators on when turning right at the time of the accident? My answer is yes they were on as I had put them on shortly before I began to execute the manoeuvre.
      • How do I know they were on? My answer is I could hear when I pushed the indicator stalk to go to the right, the audible click click sound they make coming from the dash of my car.
      • Did I switched them on and see them on my dash? My answer is that I did not look at the dash to see them flash but heard the audible click click they made.
      • In addition, the Police tested my indicators after the crash and found they were working.

Record of telephone interview between Bruce Coates (investigator) and Colleen Goode (insured driver) dated 14 March 2025 (R5)

1. Relevant portions of this record of interview are as follows:

Q43 So, in relation to what you remember, can you just tell me in your own words what happened please?

1. I slowed down and I was turning right and just as I sort of slowed down a bit more to turn right, I was hit from behind and she hit me on the passenger side at that reverse and it was very close to ..... it was only 10cm off sort of missing me, if you know what I mean.

Q62 You were on Docker Street going north bound, and you were going to turn to the left. You put your indicator on to turn left and she was behind you when she ......

Q63 Turning right, sorry. And she was behind you at the time.

1. Yes. We just not long came through an intersection, and it was right hand turn, right at the intersection. So, there wasn't much traffic behind me.

Q64 And there's traffic lights at that intersection, is there?

1. Not the one I turned at, but the one just before it.

Q80 Where there any independent witnesses to it, do you know, or you don't know?

Q81 Alright. So, she's put a Claim Form in as you know in relation to the matter. I just read what she says, and you can comment on it. Alright?

Q82 She said: "On Friday, 3 September I was at work and driving the community transport vehicle which was a 12 seater bus. I was on my way to collect a client. I was the only occupant in the vehicle. I was driving north bound on Docker Street in the right hand lane and stopped at the red light at the intersection of Docker and Edward Streets. When the light turned green, I continued through the intersection and continue to drive along Docker Street. Just prior to the intersection of Docker and Morgan Streets, a red vehicle in the left hand lane suddenly swerved into my lane in front of me and immediately slammed on its brakes. The vehicle did not have its indicator on. I was travelling at no more than 50 km/h. I was concentrating on the road looking straight ahead. I had a clear view of the other vehicle when it swerved in front of me. I did not have enough time to stop and collided up the back of the vehicle." So, what do you want to say about that?

Q84 Because she's saying: "I continued along and the red vehicle in the left lane suddenly swerved into my lane and I slammed on my brakes." That didn't happen?

1. Yes. It was like she clipped the left hand side as she was trying to go around me.

1. Excerpts from the oral evidence of Colleen Goode are as follows:

Mr Adhikari: And you had no reason not to tell the truth, did you, Mrs Goode?

Mr Adhikar: And you were honest in the responses that you provided to Mr Coates?

Mr Adhikari: I put it to you that the reason why you didn't activate your right hand indicators was because you didn't noticed Ms Wakeling was travelling in the right hand lane, what do you say to that?

Member: How much time do you estimate elapsed between when you passed through that intersection and the collision?

Member: And at any point did you see Ms Wakeling's van in your rear view mirror?

Member: Now, when you were turning from Docker Street into Morgan Street, did you bring your vehicle to a halt before turning or did you just turn straight from Docker Street into Morgan Street?

Ms Goode: I just slowed down and was turning right.

Member: So, you slowed down, and your evidence is that you put on your right hand indicator?

Member: But you didn't bring your vehicle to a halt, is that your evidence?

Mr Jones: Did you apply the brakes in order to slow down?

1. Ms Goode gave her evidence in a straight-forward manner. She was not shaken under vigorous cross-examination by Mr Adhikari. I found Ms Goode to be an impressive witness. Where they are inconsistencies between the claimant's evidence and Ms Goode's evidence, I prefer the latter.

1. I am satisfied on the evidence as to the following matters:

(a) the accident occurred at the intersection of Docker Street and Morgan Street at Wagga Wagga when traffic conditions were relatively light. At that point in Docker Street, there were two lanes proceeding in each direction;

(b) before the accident, both drivers were proceeding in a northerly direction along Docker Street, in the right-hand lane 2, as they approached the intersection with Morgan Street. Both vehicles were being driven within the speed limit. The insured vehicle was ahead of the claimant's vehicle;

(c) I reject the claimant's evidence that the insured vehicle overtook her vehicle in the left side lane 1, swerved into the claimant's path without warning and came to an abrupt halt, without indicating an intention to turn right. I find the claimant's evidence in that regard to be inherently improbable and unconvincing. That being said, I do accept that the claimant genuinely, but mistakenly, believes her version of events, as Mr Jones conceded;

(d) I accept Ms Goode's evidence that she turned right from Edward Street into the right-hand lane 1 of Docker Street, and remained in that lane, with the intention of turning right into Morgan Street;

(e) I am satisfied that the claimant did not pull to the left, in an attempt to avoid the insured's vehicle, but was driving straight ahead, when the collision occurred with the insured's vehicle, which was then only partially in the north bound lane 3 and partially in the oncoming south bound lane;

(f) I accept Ms Goode's evidence, that as she approached the intersection with Morgan Street, she lightly applied her brake to slow the vehicle, and activated the right turn indicator, before starting to turn across the oncoming lane, when the claimant's vehicle struck the left rear corner of the insured's vehicle;

(g) I am satisfied that, contrary to her evidence, the claimant failed to keep a proper lookout leading up to the collision;

(h) I also find that, before commencing her turn, Ms Goode failed to check her rear-view mirror for the presence and proximity of vehicle behind her, as was the claimant's minibus, and

(i) I am satisfied that, had Ms Goode taken that precaution, the collision could have been avoided.

1. In the course of her reasons in the Evic case[1], when dealing with a statutory benefits case, Justice Mitchelmore said:

(a) the phrase "wholly or mostly" in sections 3.11 and 3.28 of the Act is a composite phrase no to concepts, and is addressed towards the claimant's contributory negligence (56) relevant to the accident (not the injury) (57), and

(b) section 3.38, and the assessment of contributory negligence requires the enacted law of "contributory negligence" to be applied, including s 5R(2)(a) of the Civil Liability Act 2002 and that the test of contributory negligence is "the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person" (60).

1. The claimant's submissions referred to Road Rules 2014 (NSW) particularly rule 48 (driver changing direction to the right) and rule 144 (driver overtaking). I note also rule 126 which says:

"A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle."

1. A breach of the road rules is not determinative of the matter. The Court of Appeal in Berryt v Schoupp[2] made the following observation at (4):

"....... The determination of what reasonable care requires in any given case is not resolved by asking whether the relevant conduct was or was not prohibited by one of those rules. Nevertheless, the fact that particular conduct is prohibited may in some cases be a fact appointing to the conclusion that reasonable care was not taken....."

1. Both parties referred me to numerous decided cases in support of their respective positions. I do not think it is necessary for me to refer to those authorities. Whilst neither party referred to it, I note what was said by the High Court in Manley v Alexander[3] in particular this passage at (12):

"But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."

That maxim applies equally to the conduct of both drivers in this case.

1. Whilst the principles stated in oft-quoted decisions of superior and appellate Courts provide guidance to proper curial decision-making, ultimately each case must be decided on its own facts. See for instance, Eskander which has similarities to the present case[4], I am satisfied on the facts that I have found that the claimant contributed to the accident because she was not keeping a proper lookout and did not see Ms Goode in time to stop safely. I am satisfied on the facts that I have found that the insured driver contributed to the accident because she was not sufficiently aware of what was happening in her immediate vicinity at the time that she slowed her vehicle and commenced her turn. Had she been aware of the close proximity of the minibus behind her, I infer that Ms Goode may have not turned at all, or turned more quickly, so avoiding the collision.

What is the degree of culpability of each party?

1. As I have found that the claimant and the insured driver each have departed from the standard of care of a reasonable person in her position, and each is contributorily negligent, I must make an assessment of the degree of contributory negligence that is "just and equitable in the circumstances of the case" (Evic) at (73).
2. On the basis of the findings I have made on the evidence put before me, I am satisfied that the fault or culpability on the part of the claimant is 50% and that the fault of the insured driver is 50% for the accident.

DETERMINATION OF ISSUE 4 - AMOUNT OF NON-ECONOMIC LOSS

1. The parties agree that the claimant is entitled to an award of damages for non-economic loss. The maximum amount of damages for non-economic loss currently is $654,000 as indexed. Section 1.4 of the Act defines non-economic loss as meaning:

(a) pain and suffering;

(b) loss of amenities of life;

(c) loss of expectation of life, and

(d) disfigurement.

The claimant has an agreed life expectancy of 42 years. There is no medical evidence that her life expectancy has been reduced by reason of the motor accident.

1. As to (a) and (b) above, I note what is said by the claimant in her written statement, particularly paragraphs 41 to 43 inclusive. I have determined the medical consequences of the motor accident. I note the list of cases helpfully provided by Mr Adhikari in relation to the amount of non-economic loss awarded in some recent decisions. I note the submissions made by the parties in relation to the amount of non-economic loss that should be awarded in the circumstances of this case.
2. I am satisfied that the motor accident has had a significant impact on the claimant's quality of life and will continue to do so. I accept that the claimant's physical injuries and psychiatric disturbance, attributable to the motor accident, will adversely affect her work, social and family life significantly. I have had regard to her age and the negative impact that the claimant's impairments will have upon her ability to pursue her preferred activities and pastimes.
3. I have attempted to assess damages for non-economic loss in accordance with common law principles having considered the evidence and the parties' submissions, I allow $385,000 for non-economic loss.

1. The claimant submits that she has been unable to work since the motor accident, apart from a brief period of return to her normal duties, before undergoing lumbar surgery. The claim for past economic loss is formulated as follows:
   1. Past loss wages from 03.09.2021 to 02.09.2025 - 208 weeks at $808.12 net per week = $168,088.96.

1. The insurer submits the claimant would have only required a brief period of time off work, as the accident was only minor, and her injuries were an aggravation of the multiple pre-existing medical issues she had prior to the accident. The insurer allows $800.00 net per week for 12 months ($41,600.00) plus superannuation at 11% ($4,576.00) rounded to:

1. I reject the insurer's submission regarding the claimant's working capacity since the motor accident because it is contrary to the insurer's own expert medical evidence.
2. The income statements most recently provided by the claimant's employer detail her worker's compensation benefits. There is no evidence from the employer, nor from any other source, as to what the claimant would likely have earned, but for the accident. The only evidence in that regard is the claimant's employment contract and the Valmar Support Services Limited Enterprise Agreement 2016, which are of little utility in estimating the claimant's likely past earnings, absent direct evidence from the employer. In those circumstances, I think that the best guide is the claimant's ATO Notice of Assessment for the year ended 30 June 2021, which indicates that her earnings in that financial year were $894.98 net per week, which exceeds the amount claimed. In those circumstances, I allow $160,036.09 for past economic loss inclusive of superannuation.

DETERMINATION OF ISSUE 6 - FUTURE ECONOMIC LOSS

1. A claim is made for future economic loss in the sum of almost $850,000.00 particularised as follows:

It appears that the buffer is claimed to compensate the claimant for inability to move to a higher paid employment.

1. The insurer submits the claimant is not totally incapacitated from undertaking work duties for the rest of her working life. The insurer further does not accept the claimant's buffer claim. The insurer says there is no evidence to support the proposition the claimant would have gained a higher paid employment, in the future, but for the subject accident.
2. The insurer submits the claimant will require very little time off work due to her accident-related injuries and does not agree that she has no residual earning capacity, especially where the claimant is currently only 43 years of age. The insurer further submits the claimant had significant pre-existing medical issues and applied for a disability support pension prior to the accident. In those circumstances, the insurer submits that the accident-related injuries have not significantly impacted the claimant's future earning capacity.
3. The insurer submits a buffer of $50,000.00 inclusive of superannuation foregone is appropriate for future economic loss. That is calculated at a partial loss of $70.00 net per week for 24 years to retirement age.
4. Having observed the claimant closely while she gave her evidence, and having considered the medical and other expert evidence, I am not satisfied that the claimant has no residual earning capacity. I note that the claimant has thought of retraining as a teacher's aide. I think that the claimant should have the ability to work in some administrative capacity after appropriate retraining.
5. I am mindful of what has been said by the Court of Appeal about the desirability of adopting an arithmetic approach, instead of a buffer, in the calculation of future economic loss. See Allianz Australia Insurance Limited v Cervantes[5], Allianz Australia Insurance Limited v Sprod[6] and Allianz Australia Insurance Limited v Shamoun[7]. In the circumstances of this case, Mr Jones contends for a buffer, whereas Mr Adhikari contends for both.
6. Having considered all of the evidence, I am satisfied on the balance of probability that:

(a) at the time of the accident, Ms Wakeling had a reduced earning capacity, due to her pre-existing medical conditions, for which she had unsuccessfully applied for a disability support pension;

(b) her earning capacity has been reduced further by reason of the injuries caused by the accident, for which she has undergone lumbar surgery;

(c) that further reduction in earning capacity is likely to be productive of future economic loss, and

(d) but for the subject accident, the claimant would likely have continued working in her then employment, or similar employment, until her agreed retirement age, noting that the insurer has allowed a partial loss of earnings for 24 years.

1. Doing the best I can, on the basis of the evidence, I propose to allow future economic loss for 23 years in the sum of $400.00 per week. The calculation is as follows:

$400.00 x 721.2 (5% multiplier) x 85% (vicissitudes) = $245,208.00

I allow $35,775.84 for superannuation at 14.59% of the net loss. I do not think it appropriate to allow an additional cushion for future loss of earning capacity. I make no provision for travel expenses under s 4.4 (1) (b) of the Act.

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

I allow $439,185.94 after adjusting for 50% contributory negligence.

1. I allow the claimant's costs and disbursements in the sum of $40,809.84 inclusive of GST as agreed.

[1] AAI Limited t/as GIO v Evic [2024] NSWSC 1272

[2] [2015] NSWCA 128 at (4)

[3] [2005] HCA 79

[4] Eskander v QBE Insurance (Australia) Limited [2025] NSWPIC 211

[5] [2012] NSWCA 244

[6] [2012] NSWCA 81

[7] [2013] NSWSC 579