Under s 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW), the word 'likely' means a 'real chance' or 'real prospect', not 'more probable than not'. A court is not required to make a specific assessment of contributory negligence but must determine whether there is a real and not remote chance of contributory negligence being assessed at or below the relevant threshold. The plaintiff bears the onus of establishing the matters in s 109(3)(b). A court may in principle include non-economic loss in the predictive assessment even without a Medical Assessor's determination of permanent impairment, though sufficient evidence must be available. The question whether House v The King principles properly constrain appellate review of s 109 decisions remains open.
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