CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Mossman v Insurance Australia Limited t/as NRMA [2023] NSWPIC 377	
		
Claimant:	Mark Mossman	
		
insurer:	Insurance Australia Limited t/as NRMA	
		
Member:	David Ford	
		
DATE OF DECISION:	31 July 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36(3) and 7.36(4); motorcycle being ridden by the claimant over the crest of a hill when confronted with a stationary truck with a flatbed trailer across both lanes of the roadway; claimant unable to avoid a collision with the trailer and as a consequence suffered serious injuries; insurer admitted duty of care but alleged contributory negligence on the part of the claimant; contributory negligence assessed at 0%; claimant suffered multiple rib fractures, a fracture of the left humerus, fracture of the right patella, and fracture through the right tibia mid shaft; insurer conceded claimant’s whole person impairment exceeded the threshold; claimant is a chef; claim for non-economic loss; past and future economic loss; Held – claimant is entitled to damages for non-economic loss. past and future economic loss.
 	
determinations made:	CERTIFICATE
Issued under s 7.36(1) of the Motor Accident Injuries Act 2017
Assessment of claim for damages made in accordance with s 7.36 of the Act.
1.	On the issue of liability for the claim the NRMA's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. In respect to the allegation of contributory negligence on the part of the claimant I assessed contributory negligence at 0%.
2.	The amount of damages assessed in respect of this claim is $999,824 which includes the statutory benefits paid by the insurer.
3.	The amount of the claimant’s costs taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 is $85,485.71 inclusive of GST.
4.	Attached to this certificate are reasons for my assessment.

STATEMENT OF REASONS
introduction
1.	On 9 September 2019 at approximately 7:12am, the claimant was riding his motorcycle in an easterly direction on Wells St, Springfield. As he rode his motorcycle over the crest of a hill near the intersection of Lock Ave, he was confronted with a stationary truck with a flatbed trailer across both lanes of the roadway emerging from Lock Ave. The claimant immediately braked but was unable to avoid a collision with the trailer and consequently he sustained serious injuries.
2.	Police and ambulance attended the scene of the accident, and he was transported by ambulance to Gosford Hospital where he was admitted and subsequently underwent emergency surgery. He was diagnosed with the following significant injuries:
a.	multiple displaced left sided rib fractures affecting ribs 4 to 8 with a flail segment and associated hemopneumothorax and subcutaneous emphysema.
b.	a subscapular hematoma over the left lobe of the liver.
c.	an undisplaced fracture through the greater tuberosity of the left humerus (left shoulder).
d.	a right transverse patella fracture.
e.	an open fracture through the right tibial midshaft, and
f.	a left thigh hematoma (secondary to a tear of the rectus femoris muscle).
3.	He underwent surgery for his right lower limb injuries including an open reduction, internal fixation of his right tibial mid shaft fracture with placement of a locked intramedullary nail, and an open reduction internal and internal fixation for his right patella fracture with placement of two vertical screws. He was then transferred to the intensive care unit, where he remained for two days before being discharged back to the ward.
4.	He was subsequently treated with analgesia, physiotherapy and DVT prophylaxis before being discharged home from Gosford Hospital on 13 September 2019.
5.	He underwent two further surgical procedures for management of his injuries following his discharge from Gosford Hospital. On 28 October 2020 he underwent removal of metal hardware from his right tibia and right patella and scar revision surgery under the care of 
Dr Simon Hutabarat of Brisbane Waters Private Hospital. On 12 April 2021 he underwent a left shoulder arthroscopic subacromial decompressive procedure, and a left shoulder manipulation under anaesthesia, for management of his left shoulder injury.
6.	Following his surgical procedures, he has undergone extensive physiotherapy treatment sessions, a gym-based exercise programme (coordinated by an exercise physiologist) home exercise and use of analgesia.
7.	He has also suffered with symptoms of post-traumatic depression and anxiety because of his involvement in the accident. At the present time he is not seeing a psychologist or psychiatrist and is not currently taking any anti-depressants or anxiolytic medications.
8.	At the time of his accident, he was employed as a chef at Avoca Sands Cafe and had been working there since June 2017 and was earning $742.46 net per week. He had previous experience as a chef having worked for two years, commencing in December 2015 at the Grange Hotel. Just before his accident he had given notice to his employer to take a one-month holiday and then return to the workforce. It is submitted he would have returned to work on or about the 15 October 2019.
9.	As a consequence of the injuries and ongoing disabilities sustained in the accident, he has not been able to engage in either full time or part time employment from the date of the accident up until the present time.
10.	He was born in 1992 and is presently 31 years of age.
LIABILITY
11.	The insurer has admitted breach of duty of care but alleges contributory negligence of 20% on the on the following grounds:
a.	failure to keep a proper lookout.
b.	failure to brake or swerve his motorcycle so as to avoid the accident.
c.	failure to slow his motorcycle on approach to the crest where the claimant knew or ought to have known he did not have a clear view of the road of any hazards on or near the roadway ahead, and
d.	riding at an excessive speed in all the circumstances.
12.	The solicitor for the claimant has submitted the allegation of contributory negligence cannot be substantiated and accordingly submits I should find the allegation of contributory negligence not to be proven and assess contributory negligence at 0%.
13.	In support of the allegations of contributory negligence, the insurer relies upon the reports of Barringtons investigators dated 4 November 2019, report of Accident Investigation services Pty limited (author Nigel McDonald) dated 20 October 2022 and supplementary report of Accident Investigation services Pty limited (author Nigel McDonald) dated 26 May 2023.
14.	The solicitor for the claimant served a report from William Keramides dated 21 April 2023.
15.	Both Nigel McDonald and William Keramides have provided comprehensive and detailed reports containing a number of photographs taken at the scene of the accident together with detailed measurements and calculations in regard to the following:
(a)	perception response.
(b)	sight distance.
(c)	motorcycle braking, and
(d)	motorcycle speed.
16.	In paragraph 25 of his report, Nigel McDonald concludes the following:
(a)	the claimant travelled east along Wells St and struck the offside of the insured trailer which was at an angle across and blocking Wells St adjacent to Lock Ave.
(b)	the claimant stated he was travelling around 50 to 60 kmph and braked upon seeing the insured trailer across the road but was unable to avoid a collision.
(c)	at a speed of 60 kmph, a collision was likely to be unavoidable in the time and distance available upon seeing the trailer.
(d)	if the claimant was travelling at a notable speed less than 60 kmph, such as 
55 kmph or less, the collision would likely have been avoidable.
(e)	there is no information to indicate that the claimant was travelling in excess of the 60kmph speed limit.
(f)	the 60 kmph speed limit was however inappropriate given the vertical curvature of the crest and the limited sight distance it produced.
(g)	road design standards indicate a safe speed over the crest is in the order of 
40 kmph.
(h)	the poor sight distance and need to reduce speed was indicated by a preceding crest warning sign.
(i)	the claimant also reported he was familiar with the road and therefore should have been familiar with the limited sight line over the crest, and
(j)	sun glare might have limited vision, if so, that is an additional prompt to travel slower over a crest with limited slight distance.
17.	In the report of William Keramides, he concludes the following:
(a)	there was a consistency between the accounts of both the claimant and the insured as to the motion of both the articulated heavy vehicle combination and the approach of the motorcycle.
(b)	the speed zone for the area was 60 kmph and a crest of approximately 300m radius existed a short distance west of the impact location. Figure 15 of the report depicts this location as well as the point of impact. A smaller scale version of that figure is reproduced below (Refer to page 478 of the claimant paginated bundle).
(c)	the crest created a restriction to sightlines such that the claimant would only have had an initial glimpse of the top of the trailer deck 44.75m prior to impact and a more realistic sightline distance of about 39m (of the side of the trailer).
(d)	the claimant’s likely speed immediately prior to his brakes being applied was assessed at close to 50 kmph meaning that he had likely slowed from an initial(stated) speed of 60 kmph.
(e)	the very unusual circumstances which presented itself to the claimant likely to have meant that his perception response time (PRT) would have been longer than for a straightforward’ path intrusion’ case.
(f)	the combination of the expected PRT and sightline restrictions meant that the claimant could not have avoided the impact, even though he was alert and riding appropriately in the circumstances.
(g)	the insured knowingly entered Wells St contrary to a ‘no entry’ sign. He also saw the claimant approaching but was not in a position to manoeuvre the prime mover and the trailer out of the claimant’s path.
(h)	the insured created an emergency situation when there was no need to have done so. His actions leading up to his attempted turn into Wells St highlight his failure to consider the consequences of those actions as he clearly chose convenience over safety, and
(i)	had the insured acted as expected of a prudent (let alone professional) driver, this collision would not have occurred.
18.	I refer to the supplementary report of Nigel McDonald dated 26 May 2023 commencing at page 9, I note the following paragraphs:
“27.	Given it is unclear as to how much of a hazard the prime mover appeared to be as it was stopped and towards the southern side of the road, I have considered only when the trailer became visible as a clear  an immediate hazard, after some height of the trailer was visible  (from 0.35 metres above the ground and higher) .In  doing so I have evaluated when the hazard was clear and unambiguous. that alleviates the need to consider when the claimant could have seen the prime mover beforehand, and when the top of the trailer was visible but not perceptible as a threat.
28.	Mr Keramides has adopted the’ less info’ variable as opposed to ‘more info’ adopted by myself. This variable can be considered as a measure of whether or not the road user has been put on notice of a potential hazard ahead. For example, at an intersection cross traffic can be expected, on a curve another road user may appear that warrants an action, and if a warning is placed that hazard can be expected. 
29.	I have adopted’ more info ‘as I believe there are a number of prompts for the claimant to be alert. These include the claimant's familiarity with the magnitude of the crest, the presence of the crest itself (a vertical curve) and a signed posted warning for the crest.
30.	For the reasons above. I consider the 1.5 seconds perception response time to be appropriate.
31.	 If Mr Keramides 3.0 to 3.6 seconds were adopted, I note that the perception response distance alone (prior to any evasive action commencing) is 41.7 to 60 metres at 50 to 60 kilometres per hour (see Table 2) Mr Keramides estimates the sightline for the subject accident was in the order of 39 to 45 metres for an object height of. 0.6 metres. Road designers assess stopping distances with an object height of 0.2 metres and the taillights are below 0.6 metres. Accordingly, Mr Keramides appears to be suggesting that the claimant could not have stopped for any hazard that was present over the crest. My view is that road users should approach a crest at a speed whereby they could stop if a hazard appeared beyond the crest and stop in a controlled manner without full emergency braking.
32.	 Mr Keramides and myself agree that apart from a design perspective, 40 kilometres per hour was an appropriate speed for the crest. Design speeds assumed braking in a controlled manner and without emergency full brake application. We also agree that while a crest warning sign was in place, there was no specific speed advisory attached.
33.	 An advisory speed is not appropriate for a crest given the appropriate speed varies depending on the eye height of the road user and the object being observed beyond the crest. Given the claimant was familiar with the road and the vertical curve (crest) it is more likely than not he would adopt a speed based on his own experience and practice rather than the sign posted speed as occurs with advisory speeds for horizontal curves.
34.	Mr Keramides is of the opinion that the claimant slowed to 50 kilometres per hour, and therefore appliance the claimant had slowed for the crest. There is no physical evidence to calculate the claimant’s speed and therefore no physical evidence to show he slowed to 50 kilometres per hour.
35.	My opinion is that the claimant  should have slowed such  that he could avoid a hazard over the crest if it was present .A hazard could be another vehicle( potentially towing a load trailer or having a load tray such as a utility )stopped and turning from the eastbound lane ,a vehicle turning into or otherwise across the eastbound lane ,a motorcycle or bicycle stopped or crossing the eastbound lane, or any number of other vehicles or objects in or moving across the eastbound lane.
36.	The claimant should have approached the crest in a manner that allowed him to respond to whatever hazard could be present beyond the crest. It is apparent that the claimant was travelling at a speed or level of alertness whereby he did could not cognitively process and respond to a hazard across the eastbound lane once it was clearly identifiable.
42.	To summarise what I consider to be the most pertinent issue the claimant should have approached the crest in a manner that allowed him to respond to whatever hazard could be present beyond the crest. It is apparent that the claimant was travelling the speed and / or level of alertness whereby he could not cognitively process and respond in time to avoid a hazard across the eastbound lane upon it becoming visible and was clearly identifiable.”
CONCLUSION AS TO LIABILITY
19.	The onus proving contributory negligence rest upon the insurer. The driver of a motor vehicle is to take reasonable care for the safety of other road users.
20.	In Manley v Alexander [2005] HCA 79 at 11 the majority of the High Court emphasised the duty of a driver to ‘give reasonable attention to all that is happening on or near the roadway that might present a source of danger’.
21.	An insured driver who asserts a claimant is negligent in failing to keep a proper lookout must also establish the claimant had the opportunity to see the insured driver and failed to do so. This is consistent with the principle in Manley v Alexander, that is the duty of a motorist to be observant of all possible sources of danger on the road.
22.	Section 5R (1) of the Civil Liability Act 2002 provides principles that are applicable in determining whether a person has been negligent can also apply in determining whether the person who has suffered harm has been contributory negligent in failing to take precaution against the risk of that harm. The standard of care required of the person who suffered harm is that a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time, see s 5R (2)(a) and (b).
23.	Section 5B of the Civil Liability Act 2002 provides in determining whether a reasonable person would have taken precautions against the risk of harm, the court is to consider the following amongst other relevant things:
(a)	the probability that the harm would occur if care were not taken.
(b)	the likely seriousness of the harm.
(c)	the burden of taking precautions to avoid the risk of harm.
(d)	the social utility of the activity that creates the risk of harm, and
(e)	the determination of whether a claimant it has been contributory negligent is to be decided objectively on the basis of the facts and circumstances of the case see, Serrao (by his tutor) Serrao v Cornelius (2) 2013 NSW CA231 at (61).
24.	At the general assessment conference, the claimant admitted, when questioned by counsel for the insurer, that he eased off the throttle of his motorcycle as he approached the crest of the hill. He calculated the distance between when he first saw the prime mover and trailer and the point of impact was a distance of only 10 -15m. I do not accept this estimate by him, and I accept the estimate provided by Mr Keramides in paragraph 17, above which is a distance of 39m.
25.	I note from the police report dated 30 January 2020; it is recorded the claimant pre-crash speed is 50 kmph. At the assessment conference, he stated he had been travelling at 
60 kmph as he approached the hill. However, I accept that he eased off the throttle as he approached the crest and I therefore find as he came over the crest of the hill, he was travelling at a reduced speed of 50 kmph.
26.	I agree with the findings of Mr Keramides. The claimant was presented with very unusual circumstances and I accept his perception response time would have been longer than for a straightforward ‘path intrusion’ case. The only option available to the claimant was to brake in order to avoid a collision with the trailer. There was no option for him to try to manoeuvre around the trailer.
27.	I do not accept the submission by Mr McDonald if the claimant was travelling at less than 
60kmph, such as 50kmph, the collision would likely have been avoidable. I reject the submission for the reason I agree with Mr Keramidas the perception response time would have been much longer for a straightforward path intrusion and I accept his submission the perception response time would have been a period of 3.0 to 3.6 seconds. I also reject the submission by Mr McDonald that sun glare might have limited vision as there is no documentation or statements in support of this proposition.
28.	The claimant was familiar with this stretch of road and had driven over it on numerous occasions and was familiar with the road sign ‘crest’ in Wells St.
29.	I reject the submission by Mr McDonald that road users should approach a crest at a speed whereby they could stop if a hazard appeared beyond the crest and stop in a controlled manner without full emergency braking. The claimant had reduced his speed of his motorcycle as he approached the crest and I find he reduced the speed from 60 kmph to 
50 kmph and the limited perception response time available to him meant it was impossible for him to avoid colliding with the trailer, which any view, was a completely unexpected and very unusual danger to him.
30.	I therefore find the allegation of contributory negligence not proven, and I assess contributory   negligence at 0%.
31.	Furthermore, for the reasons which I state below, I have accepted the claimant sustained personal injury loss and damage as a result of the said breach of duty of care. I will now assess damages.
Outline issues in dispute
32.	The following issues have arisen in this matter:
(a)	non-economic loss.
(b)	past economic loss.
(c)	past superannuation.
(d)	future economic loss.
(e)	future superannuation, and
(f)	Fox v Wood.
33.	The main issues requiring my determination are as follows:
(a)	what is the entitlement to damages for non-economic loss.
(b)	to what extent if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until the present time and for the remainder of his working life, and
(c)	what is the entitlement to damages which flow from the findings on the above issues.
Documents considered.
34.	I have considered the documents provided in the application and the reply and any further information provided by the parties.
Submissions made by the claimant. 
35.	I refer to the claimant’s statement dated 2 September 2022 where he states the following at paragraph 20:
  “20. I am not sure what another career path I can take now. I am devastated that I on't be able to return to my career as a chef, this was something I loved, and I took pride in my ability to be a great chef.”
36.	I further note the following paragraphs in the said statement:
“45.	As a result of the injuries, I am now greatly restricted in what I can do. My left shoulder continues to cause me aching pain and is very stiff. I struggle to move my left arm above shoulder height as it becomes very painful.
46.	I also constantly have pain in my chest as my ribs have still not healed. Whilst I can breathe easier than I could and no longer get the sharp stabbing pain I once had, the throbbing pain does not leave and stops me from pushing myself physically.
47.	I still try to stay away from pain medication as it blocks up my stomach
48.	I have a large tear in my left thigh muscle that causes my left thigh to cramp up when I overexert myself this can occur by just doing 2 or 3 squats and I immediately have to stop what I am doing.
49.	I find that the pain in my right leg and knee is made worse when I walk long distances. I also find that if I sit a certain way it can cause me pain.
52.	I am currently working through the anxiety I have when I get back onto the road. It is a slow and frustrating process.”
37.	The solicitor for the claimant arranged for him to be examined on a medico legal basis by 
Dr Uthum Dias and I refer to his report dated 18 October 2022. Dr Dias has provided a comprehensive report. He carried out a physical examination of the claimant and viewed medical reports, clinical records as noted on page 4 of his report.
38.	He has detailed the claimant’s current symptoms on page 8 of his report and noted the restrictions the claimant is suffering from regarding his day-to-day activities. On page 14 of his report, he records the following under the heading ‘Diagnosis’:
(a)	Mr Mossman suffers from chronic left shoulder pain stiffness and discomfort secondary to an acute undisplaced greater tuberosity fracture of the humerus with associated rotator cuff tendon strain and chronic subacromial bursitis. 
Mr Mossman underwent a left shoulder arthroscopic decompressive bursectomy procedure on 12 April 2021 under the care of Dr Simon Hutabarat, orthopaedic surgeon. He has continued to suffer from ongoing left shoulder pain, stiffness and discomfort over the course of the past 18 months since undergoing left shoulder surgery.
(b)	Mr Mossman suffers from chronic left sided rib cage pain, discomfort and stiffness, secondary to multiple displaced fractures involving the left ribs from rib 4 to rib 8. His left rib cage injury was initially associated with a flail segment and hydropneumothorax.
(c)	Mr Mossman suffers from chronic left thigh pain, discomfort, and persisting deformity secondary to an acute rupture of the medial head of the rectus femoris muscle.
(d)	Mr Mossman suffers from chronic right knee patellofemoral dysfunction secondary to an acute transverse patellar fracture.
(e)	Mr Mossman suffers from persistent right tibial external rotation / right leg pain and discomfort secondary to an acute open right tibial midshaft fracture.
(f)	Mr Mossman suffers from consequential right hip pain, stiffness and discomfort, secondary to prolonged altered gait patterns as a result of his lower limb injuries. His right leg symptoms have manifested over the course of the past 18 months, and
(g)	I know that Mr Mossman also sustained an acute right ankle lateral ligament sprain as a result of his involvement in the subject accident. This injury appears to have clinically resolved by the time of my assessment of Mr Mossman on 
18 October 2022.
39.	He also notes the numerous restrictions suffered by the claimant on page 15 of his report. He comments on the medico legal report of Dr Wallace dated 11 April 2022. This report was a joint examination as agreed upon by the parties. Dr Dias states the following on page 17 of his report:
“I agree completely with Dr Wallace that Mr Mossman is no longer fit to work as a sous chef .the job role of working as a sous chef or indeed any other kitchen staff role in the hospitality industry inherently entails prolong standing, prolonged walking, repeated manual handling of items weighing an  excessive 15-20 kg, repetitive bending and twisting of the torso and intermittent overhead and above shoulder height work, as well as intermittent squatting and crouching. Mr Mossman’s injuries to his lower limbs, rib cage and left shoulder would be at an unacceptable risk of aggravation on a daily basis if he were to return to his pre-accident vocation as a sous chef or any other similar role, within the scope of his previous education training and experience.”
40.	Dr Dias also comments on the report of the Vocational Capacity Centre report dated 
22 June 2022 also on page 17 of his report:
“I do not believe that Mr Mossman could work as a product assembler, forklift driver order clerk, stock clerk ,sales assistant or parking inspector as a result of his  compensable physical injuries stemming from the subject accident. In my opinion Mr Mossman’s persistent disabilities and chronic symptomatology associated with his injuries will constitute insurmountable barriers for Mr Mossman with respect to a re-entry into the workforce in any of the above-mentioned job roles either on a full time or part time basis. Each of the above-mentioned job roles inherently involves prolonged walking and prolonged standing as well as repetitive manual handling as part of the job description. It is highly doubtful that any of the above-mentioned job roles would fit within the scope of Mr Mossman’s disabilities listed above. In my answer to question 2. As such, in my opinion Mr Mossman’s chronic injuries affecting his lower limbs, chest wall and left shoulder would be at an unacceptable daily risk of aggravation and exacerbation if he worked returned the workforce in any of the above-mentioned job roles, either on a part time or full-time basis.”
41.	Dr Dias also provides an opinion as to the limit of the claimant’s post-accident residual earning capacity in terms of hours per week and range of suitable occupations. He states the following on page 18 of his report:
“in my opinion Mr Mossman’s injuries stemming from the subject accident have effectively rendered him totally unfit for any job role that will be within the scope of 
Mr Mossman previous education, training and experience. Mr Mossman left high school after completing year 9 and is only ever worked as a chef/ cook in the hospitality industry since the age of 15 years. On a sustainable basis. His injuries will be at an unacceptable risk of aggravation, exacerbation if he were to return to his previous job as a chef or any other job within the scope of his previous education, training and experience on the open labour market.
Given the chronicity of Mr Mossman’s symptoms and considering his relatively poor prognosis for improvement, in my opinion Mr Mossman’s total capacity for suitable gainful employment is likely to persist on an indefinite basis into the foreseeable future, resulting in his total and permanent disablement from any form of sustainable gainful employment on the open labour market. As such, realistically, when considering Mr Mossman’s real world employment prospects, Mr Mossman has sustained a 100% permanent loss of earning capacity, when considering his vocational options and earning capacity on the open labour market both of the present time and for the remainder of his working life
Mr Mossman lacks the transferable vocational skills to return to the workforce in a job role that would conform to the scope of his functional disabilities listed above in my answer to question 2. Mr Mossman would require extensive and expensive vocational retraining and rehabilitation if he were to return to a job that could conform to the disabilities mentioned above in my answer to question 2 and is likely that any future vocation Mr Mossman would be able to sustain in the open labour market would fall well outside the scope of his previous education, training and experience. Such job roles, ie office based administrative job roles, customer service job roles in the retail industry, or other such job roles, would require extensive vocational rehabilitation, as Mr Mossman lacks the transferable vocational skills to return to the workforce within the range of these occupations”
42.	I also refer to the report of Dr Simon Hutabarat dated 3 February 2023. He is the claimant’s treating orthopaedic surgeon.  
On page 2 of his report, he sets out in detail the claimant's restrictions in regard to his ability to carry out sedentary work, light work, medium work, heavy work and very heavy work.
Submissions made by the insurer.
43.	The insurer has lodged two sets of submissions dated 29 September 2022 and 15 November 2022. 
44.	The insurer arranged for the claimant to be examined by, Dr Raymond Wallace, orthopaedic surgeon, and I refer to his report dated the 11 April 2022. Dr Wallace also provided a comprehensive report, and he noted the claimant's present complaints on pages 4 and 5. He carried out a physical examination of the claimant and viewed numerous imaging reports. He is of the opinion the claimant remains unfit to return to his full-time pre-injury duties at work as a chef. On page 9 of his report, he states the following:
“Mr Mossman would not be fit for activities requiring repetitive overhead use at his left shoulder, repetitive bending, squatting, crouching or kneeling at his right leg, prolonged periods of walking or stair climbing or repetitive lifting above 10 kilos. Mr Mossman is currently fit to return to work at full time light duties with due consideration given to restrictions on his activities detailed above.”
45.	Dr Wallace assessed the claimant as having a whole person impairment of 27%. He also is of the view the claimant's working life will be reduced as a result of the injuries sustained in the accident and if the claimant obtains suitable treatment and rehabilitation, he is of the opinion he will be fit to continue work on full time light duties in the long term.
46.	In a supplementary report dated 29 September 2022, Dr Wallace expressed an opinion the claimant would be fit to carry out the roles proposed by the Vocational Capacity Centre on a full-time basis. These roles were discussed by Dr Diaz in his report, and I refer to paragraph 39 above.
47.	The insurer also arranged for the claimant to be examined by the Vocational Capacity Centre and I refer to their report dated 22 June 2022. This also is a comprehensive report and I note the claimant advised of his physical limitations which are recorded on page 5 of the report.
48.	I note he was examined by Mitch Jordan, psychologist, and in this regard, I note the following paragraph on page 8 of his report:
“Based on his presentation and self-report I am of the opinion that he has capacity for full time work from a purely psychological perspective. I am unable to comment on his functional capacity for work from a physical perspective, as this is outside my area of expertise. As such it is recommended that the vocational options in this report are considered by an appropriately qualified specialist to confirm suitability Mr Mossman’s self-reported tolerances have been considered in identifying the vocational options outlined in this report. I was unable to identify any specific functional capacities or limitations in the documents provided with the referral.”
49.	I find the claimant’s physical limitations are the major reasons why he has an inability to return to the workforce, at the present time, on either full time or part time basis rather than any psychological limitations.

REASONS
Non-economic loss
50.	The claimant is entitled to damages for non-economic loss. The solicitor for the claimant has submitted a sum of $350,000 four such damages, and in response, the insurer has submitted a sum $150,000 to be appropriate for non-economic loss. In determining the appropriate amount to be awarded to the claimant, I was assisted by the reports of Dr Dias and 
Dr Wallace.
51.	I was also assisted by the statement of the claimant dated 2 September 2022 and referred to in paragraph 36 above. I find the claimant to be honest and forthright when questioned by both counsel at the general assessment conference. I accept this accident had a significant impact upon his enjoyment of life, as well as his physical and mental well-being, I accept the disabilities of which he complains of, arising from his injuries and I further accept, on a daily basis, he is in distress and discomfort and suffers as such continually. He is still a relatively young man, and his ongoing disabilities are permanent. I have viewed the photographs of his scarring which were subsequently lodged on the portal, after the general assessment conference, and also have taken such scarring into account when assessing damages for non-economic loss.
52.	I therefore consider an appropriate allowance for non-economic loss having regard to his age and his injuries and disabilities is the sum of $350,000.
Past loss of earnings
53.	I was assisted by the report of Dr Dias regarding the claimant’s inability to return to the workforce and I accept since his accident and up until the present time, he has been unable to engage in either full time or part time employment. At the general assessment conference, he stated he had made some efforts to obtain gainful employment and had applied for a job at ALDI but did not get an interview. He was considering obtaining work repairing mobile phones, or even a sales assistant job at a 7/11 store or a cleaning job at a preschool. He expressed the view customer service is not within his best capabilities, however, he did express a desire to obtain some form of part time employment subject to his physical restrictions.
54.	Accordingly, I have accepted the calculation of past economic loss as submitted by the solicitor for the claimant. The period is from 15 October 2019 to 15 August 2023 at $742 net per week. This results in the calculation of $148,400.
55.	Therefore, the total amount to be awarded for past loss of earnings is the sum of $148,400.

Past superannuation
56.	In accordance with the agreement reached between the parties, I have calculated past superannuation on the basis of 12% of the net sum of $148,400, which results in an amount to be allowed for past superannuation in the sum of $17,808.
Future loss of earnings 
57.	The claimant is presently 31 years of age and has an expected working life to the age of 67 years. The multiplier is 884.8 for the 36-year period. I find the most likely future circumstances for the claimant is that he will continue to suffer from his ongoing disabilities, which will cause him to suffer a diminution in his earning capacity for the remainder of his working life. He will always be at risk on the open labour market, and it will be difficult for him to obtain suitable light duty work, even after he has undergone further rehabilitation and appropriate retraining.
58.	I do accept the claimant is well motivated and will use his best endeavours to obtain suitable light duty employment, however, I do not accept the submission by the solicitor for the claimant I should compensate him on the basis of total incapacity. I accept but for the accident, the claimant may well have earned salary increases however I do not accept the sum of $950 net per week as submitted, as there was no documentation or evidence to support this net weekly figure.
59.	However, as stated above, I do find the most likely future circumstance for this claimant  is  he will continue to suffer a diminution in earning  capacity for the remainder of his working life and therefore, I consider it appropriate to award future economic loss based upon a diminution of $550 per week, which in accordance with the actuarial tables less 15% for vicissitudes results in a calculation of $413,644.
Future superannuation
60.	In accordance with the agreement reached between the parties, I allow 14% on the net sum of  $413,644 which results in an amount to be awarded for future superannuation in the sum of $57,910.
Fox v Wood
61.	The parties have a have agreed the amount to be awarded for Fox v Wood is the sum of $12,062.
Assessment of damages summary
62.	Under sub-section 7.36 (1)(b) of the MAI Act. I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
63.	I assess the claim as follows on the findings set out above:
non-economic loss                                                                                    $350,000
Past loss of earnings                                                                                 $148,400
Past superannuation                                                                                 $17,808
Future loss of earnings                                                                              $413,644
Future superannuation                                                                              $57,910
Fox versus Wood                                                                                       $12,062
Total of economic losses and non-economic loss                                      $999,824
Reduction for contributory negligence                                                        Nil
TOTAL DAMMAGES ASSESSED                                                              $999,824
Costs and disbursements 
64.	I assess the claimant's legal costs and disbursements in accordance with the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet.
CONCLUSION
65.	On the issue of liability for the claim the NRMA's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. In respect to the allegation of contributory negligence on the part of the claimant, I assessed contributory negligence at 0%.
66.	I specify the amount of damages for this claim as $999,824 which includes the statutory benefits paid by the insurer.
67.	The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $85,485.71 inclusive of GST.
LEGISLATION
68.	In making my decision I have considered the following legislation and guidelines:
(a)	Motor Accident Injuries Act 2017.
(b)	Motor Accident Injuries Regulation 2017.
(c)	Personal Injury Commission Regulation 2020.
(d)	Motor Accident Guidelines 2017, and
(e)	Personal Injury Commission Rules 2021.