CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Foroosh v QBE Insurance (Australia) Limited [2023] NSWPIC 435	
		
Claimant:	Shahram Foroosh	
		
insurer:	QBE (Insurance) Australia Limited	
		
Member:	Terence O'Riain	
		
DATE OF DECISION:	25 August 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS -  Motor Accident Injuries Act 2017; claims assessment; damages; injury; passenger; never worked in Australia since 2012; trained in retail and security; had not demonstrated desire to work before accident; symptomatic lumbar spine injury before accident; low chance of employment before accident; nil past loss of earnings; accident caused future loss of earning capacity; accident linked spine lumbar, spine aggravation and psychological condition with neck and shoulder condition; now unemployable; residual earning capacity lost; most likely future circumstances evidence; legal costs agreed; Malec v JC Hutton, Husher v Husher, Wallace v Kam, and Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) considered; Held – conditions before accident meant employability already marginal; buffer appropriate to deal with loss of earning capacity at $85,000.
	
determinations made:	CERTIFICATE
Issued under s 7.36(1) of the Motor Accident Injuries Act 2017
Damages assessment
1.	The insurer admits it 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. 
2.	Under sub-ss 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the MAI Act), I assess the amount of damages for this claim as $85,000.
3.	The amount of the claimant’s costs, considering the amount of damages assessed in respect of this claim and in accordance with the MAI Act, is $28,324.57 inclusive of GST. 
Attached to this certificate are reasons for my assessment.	

Reasons
1.	Mr Shahram Foroosh, the claimant, attended the assessment conference on 24 May 2023, with his legal representatives.
2.	The Personal Injury Commission (Commission) engaged Mozhgan Meshki a Farsi interpreter, to assist Mr Foroosh.
3.	Mr Ramon Goldfried attended for the insurer with its legal representatives.
Jurisdiction
4.	The Personal Injury Commission Act 2020 (the PIC Act) established the Commission on 1 March 2021. 
5.	I am a Member and decision-maker of the Motor Accidents Division of the Commission. 
6.	Mr Foroosh’s application to assess damages is made under the Motor Accident Injuries Act 2017 (the MAI Act). The Commission will assess the amount of damages in accordance with the PIC Act, the Commission's rules and relevant provisions of the MAI Act.
7.	Mr Foroosh served his claim for common law damages, and the insurer admitted breach of duty of care in a s 6.20 notice. The only damages to assess are for economic loss.
8.	The MAI Act sets out its objects in s 1.3(2), seeking "the early resolution of motor accident claims and the quick, cost-effective and just resolution of disputes” and “to provide early and ongoing financial support for persons injured in motor accidents". 
9.	Part 5 of the PIC Act enables the Commission to make rules regarding the Commission’s practice and procedure.
10.	Section 3 sets out the objectives of the PIC Act and includes ensuring the Commission’s decisions are timely, fair, consistent and of high quality. It also enables the Commission to decide matters justly, quickly, cost-effectively and with as little formality as possible.
11.	The rules of evidence do not apply to this assessment. I may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
Background
12.	Mr Foroosh was born in Iran and arrived in Australia in 2012 at the age of 42.
13.	Mr Foroosh performed various jobs in Iran including a Trainee Auto Electrician, Real Estate Sales Assistant and Roofer Consultant.
14.	Mr Foroosh injured his back in detention in Australia and also suffered from Hepatitis. He also injured his lumbar spine in 2015 and has had continuing treatment.
15.	Mr Foroosh sustained injuries in the subject motor accident on 24 October 2019. He was a front seat passenger in a Toyota Yaris driven by a friend.
16.	Mr Foroosh's vehicle was hit heavily from behind with enough force to push the vehicle into the vehicle in front of it. 
17.	The claimant says the force of the collision caused his body to jerk forwards and backwards. He felt immediate pain in his neck and back, particularly in the neck.
18.	An ambulance transported Mr Foroosh to Bankstown Hospital to undergo investigations including a CT scan of the cervical spine. The claimant was discharged into the care of his general practitioner (GP).
19.	The claimant consulted his GP Dr Malek on 28 October 2019, four days after the accident.
20.	The claimant complained of pain in his neck, back, chest and right lower limb. He also complained of dizziness. Dr Malek noted psychiatric symptoms including phobias and insomnia. Dr Malek prescribed pain medication and Temazepam for assistance with sleeping.
21.	These symptoms continued to be reported at the next review one week later. Dr Malek prescribed a Mental Health Plan.
22.	On 5 December 2019, Dr Malek noted the claimant developing bilateral shoulder pain and recommended MRI scans. Lyrica was prescribed to assist with pain management and Mr Foroosh was referred for physiotherapy.
23.	The clinical records of Dr Malek indicate Mr Foroosh's physical and psychological condition continued to deteriorate.
24.	Mr Foroosh was referred to a psychiatrist, Dr Eddie So at St John of God Medical Centre in or around February 2021. Dr So diagnosed Mr Foroosh with moderate post-traumatic stress disorder. Dr So noted Mr Foroosh was being prescribed Cymbalta, Diazepam and Lyrica. Dr So recommended further medication and treatment.
25.	In early 2022 Mr Foroosh was referred to Dr Manish Gupta, orthopaedic surgeon, due to persistent shoulder pain. 
26.	At the time of the accident Mr Foroosh was not employed and was looking for work. Mr Foroosh has been unable to commence employment in any capacity since the accident. He receives Centrelink payments. The insurer has not paid the claimant any statutory weekly payments.
27.	Mr Foroosh alleges that the subject motor accident caused the following injuries:
•	post-traumatic stress disorder;
•	major depressive disorder with anxiety;
•	chronic pain disorder;
•	cervical spine soft tissue injury;
•	thoracic spine soft tissue injury, and
•	lumbar spine soft tissue injury and aggravation.
28.	The claimant alleges the accident caused the following disabilities:
•	anxiety;
•	depression;
•	chronic pain;
•	pain, discomfort and restriction of movement in the neck, thoracic spine, lumbar spine and both shoulders;
•	headaches;
•	insomnia;
•	amotivation;
•	impaired social functioning;
•	impaired concentration and motivation;
•	loss of confidence;
•	hopelessness;
•	poor self-esteem;
•	concentration lapses with poor attention;
•	requires medications;
•	isolation;
•	physical discomfort;
•	loss of relationships;
•	financial stress;
•	chronic psychological injury;
•	low mood;
•	fatigue;
•	loss of enjoyment;
•	altered gait;
•	impaired balance;
•	dizziness;
•	sleep disturbance;
•	mood swings;
•	reduced frustration tolerance;
•	forgetfulness;
•	anger management problems, and
•	irritability.
Medical evidence
Pre accident health
29.	Mr Foroosh already regularly attended a GP Dr Sami at MyHealth Medical Centre in Merrylands for treatment.
30.	An entry on 16 September 2015 noted back pain after lifting furniture. Pain was also recorded in July 2016 and March 2018. The claimant underwent a CT scan of his lumbar spine.
31.	In September 2019, the claimant’s GP prescribed Lyrica for his back pain.
32.	Other than the back injury, there is no history of neck or shoulder pain before this accident, nor do any notes contain any evidence of pre-accident psychiatric history other than a notation of stress in early 2018, although this condition was included in medical certificates to Centrelink.
33.	The claimant submits that the accident aggravated his 2015 lower back injury as well as causing bilateral shoulder pain and cervical strain.
34.	The insurer submits the claimant was receiving treatment for the lumbar spine and anxiety conditions shortly before the accident, and this plus long term unemployment were the reasons why Mr Foroosh was unlikely to obtain work in the future.
Post-accident
35.	The claimant’s bundle contains photos of the accident damaged car. The car is significantly damaged at both ends. The accident caused a shunting effect, which has significantly distorted the front and rear. The insurer states that it is significant the airbags did not deploy, but that is speculative because there are various factors which activate airbags and the hypothesis this was a low impact accident cannot be given much weight.
36.	Mr Foroosh changed his GP to Dr Assad Malek at Bankstown because he was an expert in dealing with accident-related injuries.
37.	In relation to his psychiatric injuries Mr Foroosh principally relies upon the evidence of his psychiatrist Dr Eddie So as well as Dr Rastogi’s medico-legal opinion.
38.	Dr So’s report dated 24 May 2022 notes a significant deterioration in Mr Foroosh's psychological condition with post-traumatic stress disorder.
39.	Dr So notes that Mr Foroosh's Depression and Anxiety Stress Scale (DASS) score on 24 May 2022 had increased compared to his initial scoring completed in February 2021.
40.	Dr So recommended further psychological treatment and made changes to Mr Foroosh's prescription including increasing the size of the doses as well as trying new medication.
41.	Dr So opined that the accident caused a significant deterioration in Mr Foroosh's psychological state and that he was totally unfit for work because of that condition.
42.	Dr Rastogi’s report dated 11 June 2020 noted an anxious and depressed mood. Dr Rastogi wrote the accident caused major depressive disorder with anxiety and chronic pain disorder.
43.	Dr Rastogi noted Mr Foroosh had a limited work capacity because of his accident related psychiatric condition.
44.	Dr Gehr, medico-legal orthopaedic surgeon’s report dated August 5, 2020, noted Mr Foroosh was still reporting pain in the cervical spine, lumbar spine and both shoulders and a diagnosis of cervical spine soft tissue injury with spasm and dysmetria, lumbar spine soft tissue injury of the right radiculopathy, right shoulder rotator cuff pathology with pain and loss of range of motion and left shoulder pain with loss of range of motion.
45.	Mr Foroosh has reported that he experienced several falls since the accident due to back pain and reduced range of motion in his lower back, hips and knees. Dr Gehr noted Mr Foroosh’s work capacity was limited at the time of his examination. Dr Gehr recommended further physiotherapy and referral to an orthopaedic surgeon.
46.	A Commission medical review panel examined Mr Foroosh's physical injuries to assess whole person impairment.
47.	The review panel’s certificate dated 4 July 2022 accepted that the accident injured the neck and back. However it did not accept that the accident caused bilateral shoulder injuries.
48.	Dr Mohammed Assem, rehabilitation specialist produced a medico-legal report dated 18 January 2023. Dr Assem opines Mr Foroosh is unfit for work, due to cervical pain and referred pain to the shoulders. The demonstrated pain behaviour exceeded the recorded pathology though. Accordingly the specialist was concerned that it would impair and delay the claimant’s recovery from his physical condition.
49.	Dr Synott’s psychiatric report dated 22 March 2023 states it is impossible to tease apart the significance/contribution of various factors in his presentation: pre-motor vehicle accident issues, subject motor vehicle accident and non-motor vehicle accident factors (maladaptive behaviour, negative mindset, entrenched in an invalid pattern of behaviour and ‘external locus of control’). 
50.	His opinion concedes that the motor accident has caused problems, but it is mixed with other factors. Nonetheless, it appears put together with Drs Rastogi’s and Assem’s opinions the accident has cemented the claimant’s state of helplessness.
51.	Orthopaedic surgeon Dr Bosanquet examined and reported on Mr Foroosh on 3 February 2023.
52.	He opined that Mr Foroosh’s problems extend entirely from degenerative changes in the cervical and lumbar spine. It is uncontroversial Mr Foroosh had lumbar spine symptoms, but there were no cervical symptoms. The report does not provide a path of reasons regarding Mr Foroosh’s spinal issues but assumes that his problems were degenerative. It discounts the accident as minor when it was clear that the forces distorted the car’s front and rear significantly. 
53.	I noted that the police accident report referred to the driver of the car Mr Foroosh was riding in and said that the driver had suffered fractures.
54.	One observation that the doctors make generally and significantly is that Mr Foroosh’s pain behaviour is florid and seems to exceed what these doctors normally expect to see with these types of injuries and pathology.
Surveillance
55.	Surveillance was conducted on 26, 27 and 28 April 2023 at Mr Foroosh’s home address. Sixty hours of surveillance was conducted, which produced approximately 25 minutes of video footage of the claimant.
56.	Surveillance commenced early each day. Late morning on the first day the claimant was briefly observed in the driveway area, before moving out of view. At 11.50am, the claimant drove to a shopping centre to purchase several small items which he carried to his vehicle and drove home. The investigator saw him briefly walking around the driveway area before walking out of view. Some of that visit was photographed.
57.	On the following day the investigator only saw him a few times.
58.	The final day of surveillance resulted in one sighting outside his residence. 
59.	I watched the video and the significance was that he did not display any pain behaviour, moved freely and he was able to lift his arm overhead to open a gate latch.
60.	Dr Bosanquet provided a supplementary report dated 11 May 2023, which commented the same.
61.	There was also a report based on a compilation of Mr Foroosh’s social media participation since the accident. It showed he had friends with motorbikes, had visited Melbourne and there were some photos where he was trying to look his best.
Questions during assessment
62.	The Farsi interpreter assisted Mr Foroosh during the questioning, but it was obvious Mr Foroosh was able to understand most of the questions.
63.	The insurer's counsel questioned Mr Foroosh about how he used his social media. There were photographs of motorbikes on his Facebook page. Mr Foroosh said he had bought a motorbike in equal shares with a mechanic friend, but he did not ride it since the accident. He said that photographs of the person on the motorbike were not him or he was just posing with the motorbike.
64.	He was questioned about references to mental health problems in clinical notes and medical certificates shortly before the accident. The claimant denied these were serious problems, unlike what he was experiencing since the accident.
65.	He was questioned about reference in Dr Sami’s clinical notes about visits to an optometrist in late 2018, which were related to cigarette smoke allergy. This referred to a “likely reaction” to late-night working hours in a smoky club. 
66.	The insurer's counsel asked if Mr Foroosh had been working at any time since he came to Australia, because his Centrelink records show he was consistently unemployed. I noted that Mr Foroosh denied he had been working for cash and that the smoke reaction was due to him visiting smoky clubs with friends.
67.	He was also questioned about his Certificate III in Customer Service, which he underwent because Centrelink required his participation. He had never used it in employment.
68.	He talked about his attempts to obtain work with his security licence and how he had been rejected.
Submissions
Mr Foroosh’s submissions
Past economic loss
69.	At the time of the accident Mr Foroosh was not working. Newstart Allowance from Centrelink paid him approximately $278 per week and he was seeking employment.
70.	Mr Foroosh relies on occupational psychologist Peter Tingle’s report dated 11 November 2021. Mr Tingle opined that Mr Foroosh could not have gained or sustained remunerative employment since the motor accident.
71.	Mr Tingle reports that Mr Foroosh is totally unemployable on the open labour market until the age of retirement following his injuries and has limited vocational options in accordance with his training, education and experience in light of his injuries.
72.	Mr Tingle opines that if not for Mr Foroosh's psychiatric injuries, he would have continued to search for work as he was doing before the accident and it is claimed he would more likely than not have attained gainful employment but for his injuries. 
73.	Mr Tingle opines that but for the accident related injuries, Mr Foroosh's prospects of locating suitable employment were fair to good. His reports say the claimant could have obtained work as an alarm, security and surveillance monitor, weighbridge operator or carpark attendant.
74.	Mr Tingle opines that Mr Foroosh now has a very poor chance of obtaining any such work because of his injuries. 
75.	There are recommendations amongst the Centrelink material that before the accident that the most suitable work for Mr Foroosh would avoid heavy duties.
76.	Mr Foroosh had made efforts to locate employment and had obtained a security licence in 2016 with a view to working in that industry. Mr Foroosh had not located suitable work at the time of the accident and no longer has the capacity to work in such a role.
77.	But for the injuries sustained in the accident, it is claimed Mr Foroosh would have ultimately been successful in securing employment that Mr Tingle describes. Accordingly, he claims past economic loss for $1,250 x 156 weeks x 0.60 = $117,000.
78.	In addition, Mr Foroosh claims he has lost superannuation at 11.5% of past loss of earnings being 11.5% x $117,000 = $13,455. 
Future loss of earning capacity
79.	Mr Foroosh claims he will sustain an economic loss in the future due to his accident-related injuries. 
80.	Given the restrictions listed above, Mr Foroosh claim he is likely to suffer losses in the future in the open labour market. 
81.	The claimant says his most notable injuries are the psychiatric injuries and the lumbar spine aggravation.
82.	Mr Foroosh formulates his claim for future economic loss as follows:
$750 x 555 x 0.85 = $353,812.50.
83.	In addition Mr Foroosh claims future loss of superannuation as follows:
13.44% x $589,688 = $47,552.40.
Insurer’s submissions 
84.	The Commission’s Medical Assessor Preston issued a certificate dated 13 November 2021 (A10) diagnosing that the accident caused a soft tissue injury of the cervical and lumbar spine and found that the accident did not cause left and right shoulder injuries. Specifically, Medical Assessor Preston considered the evidence of supraspinatus tendon tears in both shoulders, but on examination found global restriction which she said was not consistent with the tendon problem, and she considered that the accident mechanism did not support a rotator cuff injury.
85.	The claimant sought a medical review panel, which issued a determination on 4 July 2022 (A13). The review panel noted there were no initial complaints of shoulder pain for over a month following the accident. They did not accept the claimant’s explanation as to how he sustained injury to both shoulders in the collision. The panel noted abnormal pain behaviour throughout the assessment and marked over-reaction to minimal palpation on examination, with significant abnormal pain behaviours throughout the assessment. The panel made similar findings to those of Medical Assessor Preston. 
86.	The panel said that the global restriction of movements in both shoulders and the examination findings were not consistent with the imaging. The panel did not agree that the neck pain or neck pathology caused any restriction of movement in the shoulders. They found that the shoulders, including any restriction in shoulder movements, was not related to the accident. The panel found soft tissue injuries to the cervical spine and lumbar spine.
87.	The Commission’s Medical Assessor Jones assessed the claimant’s alleged psychiatric injury. The certificate dated 23 March 2022 (A12) determined that his major depressive disorder with anxiety had resolved, and that the accident probably caused a chronic pain disorder.
Past economic loss
88.	The claimant arrived in Australia in 2012 and was granted a temporary protection Visa  and, as of 21 November 2017, was granted a safe haven enterprise Visa .
89.	Since he arrived in Australia and up to the accident in October 2019, the claimant had not been employed at all.
90.	When the accident happened he was studying at the time for a Certificate III Customer Service Certificate through TAFE. He completed that after the accident.
91.	The claimant’s clinical records from MyHealth Merrylands (A26) which date back to 2015 disclose that the claimant was suffering from Hepatitis C and a pre-existing back injury with pain radiating to the right leg, sufficient to warrant a CT scan of the lumbar spine on 5 April 2018. On 2 August 2018 the clinical records include ‘referred to specialist’ and on 4 March 2019 he was referred for physiotherapy for the back. Complaints of chronic back pain continue, including Lyrica prescriptions and he was taking Voltaren up to 19 September 2019, i.e. the month before the accident.
92.	The claimant’s Centrelink records (R11) include a list of benefits dating back to 2 August 2018 which records that the claimant was suffering from a ‘spinal disorder – other’.
93.	A Centrelink employment services assessment report (R11) on 14 August 2018, before the accident, refers to a lower back injury and chronic pain condition. This assessment identifies that the claimant’s ‘baseline work capacity’ to be 23 to 29 hours per week in light less skills work but with a ‘temporary work capacity’ of 0 to 7 hours per week. It also identified that with intervention (such as vocational counselling, disability management etc) the claimant was expected to be able to increase his capacity to 30 hours plus per week within two years.
94.	A later Centrelink 2020 assessment (R11) refers to the 2018 lower back injury as well as onset/exacerbation of lumbar and cervical injury, and bilateral shoulder injury, due to the accident. In this assessment, the claimant’s ‘baseline work capacity’ was assessed to be 
8-14 hours per week in light less skilled work but with a ‘temporary work capacity’ of 0 to 7 hours per week.
95.	The insurer submits that the earlier Centrelink assessment, which reported a current capacity of 0 to 7 hours per week, compared to the 2020 assessment, which also reported a current capacity of 0 to 7 hours per week, indicates there is no material change in the claimant’s capacity pre- and post-accident.
96.	Mr Raue’s vocational assessment (R8) noted that from 2012 to 2019, the claimant did not work, and contracted Hepatitis C which reportedly made him extremely weak and unable to engage in vigorous activity. He noted that the claimant was apparently job seeking at the time of accident as he was concerned Centrelink would cease his benefits.
97.	The insurer also refers to the certificates of capacity (R13) and notes that the certificate issued from 9 November 2019 says that the claimant was fit for five hours a day, once a week. The insurer says this is not materially different to his capacity as assessed for Centrelink on 14 August 2018, wherein the claimant had capacity to work only 0 to 7 hours per week.
98.	The insurer referred me to Centrelink documents created before the accident which referred to Mr Foroosh having psychological problems, which required treatment. The insurer submits these would also impact adversely on Mr Foroosh’s employability. The insurer submits chronic pain disorder is based on a mixture of conditions which existed before the accident and that the accident aggravated these conditions, but they have now resolved.
99.	It is more probable than not that the claimant would have remained unemployed had he not been injured in the subject accident noting his long-term unemployment and ongoing disabilities as at the date of the subject accident and that he has sustained no past economic loss.
100.	If it is found that the claimant would have engaged in some employment, the insurer submits that his capacity would have been restricted due to his existing injuries and his likely earnings but for the accident would have been minimal and his employment options would also have been limited by his long-term unemployment.
101.	The insurer submits that suggesting that the claimant could earn $1,250 net per week is unrealistic.
102.	The insurer asserts that the claimant did not mitigate his damages as required pursuant to s 4.15 of the MAI Act. If there is to be an award of damages for past economic loss, this failure ought to be taken into account.
103.	The insurer says that $5,000 is an appropriate buffer for past economic loss.
Future economic loss
104.	The claimant claims a loss of $750 net per week for the future. Presumably this is based on Mr Tingle’s assessment of the claimant being able to gain full-time employment in the customer service industry, earning about $1,200 net per week, less his residual earning capacity.
105.	The insurer submits that the claimant’s alleged probable earnings but for injury are unrealistic given the long history of unemployment and the claimant’s pre-existing injuries.
106.	The insurer refers to and relies upon the submissions in respect to past economic loss above and Mr Raue’s report (R8).  Mr Raue said that the claimant was extremely pain focused, and that test results indicated he was exaggerating the impact of pain and discomfort, consistent with his presentation. Mr Raue identified suitable work options would include security guard, information officer, sales assistant, service station console operator, product assembler or waiter.
107.	If there is to be an award of damages for future economic loss, the failure to mitigate his loss ought to be taken into account.
108.	The insurer submits that if any award is to be made for future economic loss, then a small buffer is appropriate. The claimant’s long term unemployment and unrelated injuries and conditions before the accident are relevant in determining the most likely future circumstances but for injury pursuant to s 4.7 of the MAI Act.
109.	The insurer says $25,000 is an appropriate buffer for future economic loss.
Reasons
Medical evidence
110.	The balance of medical evidence supports the accident causing a soft tissue injury of the cervical and lumbar spine, which have caused him ongoing problems but there is little support for a bilateral shoulder condition.
111.	He also suffered from a major depressive disorder with anxiety following this accident, and the accident probably caused a chronic pain disorder.
Pre-accident health
112.	Mr Foroosh’s back condition and his long history of being out of work are significant impediments, which existed before the subject accident. These are negative vicissitudes that will increase any discount for future loss.
Loss of earning capacity
113.	It is most likely that Mr Foroosh would not have been working immediately after the accident, despite him completing his Certificate III in customer service.
114.	Dr Sami was already commencing treatment for Mr Foroosh’s lumbar spine injury and depression before the accident. 
115.	Mr Foroosh had not worked before this accident since he had arrived in Australia in 2012. It was not likely he would have put his Certificate III to work until the end of the pandemic and the COVID-19 Centrelink income supplement. It is probable that the pandemic would have delayed any rehabilitation Dr Sami arranged due to restrictions on examinations and hands-on treatment. There would have been further delays in obtaining appointments after the pandemic restrictions ended due to backlogs, which had built up during the lockdown.
116.	I note that the insurer provided treatment but was not active in job placement for Mr Foroosh. This may have been due to the pandemic’s impact and not due to the insurer overlooking providing assistance.
117.	This makes it likely Mr Foroosh would not have been actively job seeking until late 2021 at the earliest. However, he was under pressure to find work from Centrelink and with the training he has done he probably would have found some suitable, albeit light and part time work.
118.	To achieve employment, he would have to display motivation and a can-do approach to get himself into work. This had not been the case at any time before his accident until Centrelink intervened to prescribe that he had to do further study to maintain his benefits. The occupational therapist reports are useful for identifying suitable work, but the most optimistic reports do not account for his nonparticipation in the past.
119.	I would assess that before the accident, it was most likely only had a 40 to 50% chance of finding and sticking with suitable work, but I assess that cervical pain, the aggravation to his lumbar spine and his psychological condition linked to the accident has made him totally unemployable.
Residual earning capacity and mitigating loss
120.	Mr Foroosh had to prove his economic loss; see Todorovic v Waller (1981) 150 CLR 402 at [412]-[413]. However, once he established that loss, it is for the insurer to prove that Mr Foroosh has a residual earning capacity and provide evidence of what he can do and what jobs are open to him. The insurer must also prove the claimant did not mitigate his loss.
121.	The insurer must show that a claimant has a residual earning capacity that he is practically capable (rather than theoretically capable) of exercising. A tribunal must make a practical assessment of the likelihood of Mr Foroosh obtaining and keeping a real job, which is accessible to him, considering his pain, restriction and impairment: see Mead v Kerney [2012] NSWCA 215 and South Western Sydney Local Health District v Sorbello [2017] NSWCA 201.
122.	Mr Foroosh’s history before the accident had not demonstrated an established work ethic in Australia. That could be partly due to his non-English speaking background, visa status and diagnosed conditions, as well as issues that may have arisen arising from his time as a refugee, and the Iranian suppression. Those issues are speculative as he did not expand on what had been happening for him when he decided to flee Iran. He did not talk about any racism experiences here either that may have affected his job seeking. 
123.	The insurer has not provided evidence that deals with the following:
(a)	how Mr Foroosh would deal with seeking concessions from potential employers to make up for his functional and psychological disabilities;
(b)	the submissions and reports do not deal with how he would manage his functional and psychological conditions if his work required him to go outside the restrictions that he may need. Also, nothing addresses how he would retain full-time employment if he inflamed those conditions, and
(c)	no strategies address how Mr Foroosh would fare when competing with non-disabled applicants in the open labour market for full-time work.
124.	I am not satisfied that the insurer has discharged the onus that Mr Foroosh failed to mitigate his loss. The pandemic’s impact limited his chances for obtaining suitable work with the training Centrelink prescribed and the insurer did not facilitate job rehabilitation.
125.	The broad consensus of medical evidence from Drs Assem, Synott and Rastogi supports the claim that the accident has left Mr Foroosh psychologically and physically impaired and that each impact on the other.
126.	Suitable part-time work would have to be available. Mr Foroosh would still be limited because his capacity to accept work would depend on appropriate work being available, overcoming his established unemployment status and being well enough to get that work.
127.	I am not satisfied that the insurer has proved Mr Foroosh has a residual earning capacity.
128.	In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher [1999] HCA 47 the High Court has confirmed that the fundamental question to be determined in a case such as this is whether a claimant has sustained a loss or diminution in his or her earning capacity due to a compensable accident, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard for the provisions of s 4.7 of the MAI Act.
129.	The basic principles for evaluating a claim for future economic loss is enunciated in Malec v JC Hutton Pty Ltd (Malec) where it was held in assessing damages, the likelihood of future hypothetical events is to be taken into account.
130.	Justices Deane, Gaudron and McHugh stated that: 
“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring . . . Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.”
131.	Therefore, a claimant's future earning capacity must be evaluated by reference to probabilities, including other health conditions, business failures, and commercial shocks such as recessions, promotion, growth or alternative employment. No precise probability calculations are provided, but all of the aforementioned are foreseeable and cyclical in occurrence.
132.	An allowance for economic loss needs to be calculated because although Mr Foroosh’s shoulder pains have resolved, his accident related continuing neck and lumbar spine problems and his psychological condition, which has resolved into a chronic pain disorder will more than negligibly restrict his already restricted employment opportunities. 
133.	Considering that as Mr Foroosh could be working for another 14 years, the degree of probability that the accident related conditions will impact adversely on his capacity for work is significant, but not capable of being calculated precisely. I also keep in mind that conditions not related to the accident will impact adversely on his future earning capacity. That will mean the cushion cannot be generous.
134.	I allow a cushion of $85,000 for total past and future loss including superannuation.
Assessment of damages summary
135.	Under sub-s 7.36 (1) (b) of the MAI Act, I am required to assess the amount of damages that a court could award.
136.	I assess the claim as follows on the findings set out above:
Economic losses		
Cushion for loss of opportunity to obtain employment since the accident and into the future	$85,000	
Interest	Nil	
Total of economic losses	$85,000	
Total damages assessed	$85,000	
Costs and disbursements
137.	The parties have made further submissions, in response to my draft damages assessment. I have calculated costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accident Injuries Regulation 2017.
138.	I provided a damages and costs calculator to the parties, based on the amount of damages awarded and disbursements tendered. The parties agreed that $28,324.57 as calculated is the appropriate amount.
Conclusion
139.	In accordance with Division 7.6 of the Motor Accident Injuries Act, the Commission’s assessment is regarding liability for the claim, the insured driver owed a duty of care to 
Mr Foroosh, breached that duty of care, and Mr Foroosh sustained injury, loss and damage as a result of that breach.
140.	The amount of damages assessed for the claim is $85,000.
141.	Costs and disbursements are assessed at $28,324.57.
Legislation and cases
142.	In making my decision I have considered the following legislation, cases and guidelines:
•	the MAI Act;
•	Personal Injury Commission Rules;
•	Malec v JC Hutton (1990) 169 CLR 638 per Deane, Gaudron and McHugh JJ at [7];
•	New South Wales v Moss (2000) 54 NSWLR 536 per Heydon, JA at [70];
•	Husher v Husher [1999] HCA 47; 
•	Medlin v State Government Insurance Commission (1995) 182 CLR 1;
•	Wallace v Kam [2013] HCA 19, [15], and
•	Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis.