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Allianz Australia Insurance Limited v BBZ [2022] NSWPIC 639 (15 November 2022)

Last Updated: 2 December 2022

STATEMENT OF REASONS

INTRODUCTION

1. BBZ (‘the Claimant’) was born [redacted] and at the time of the Accident was a [redacted] and part-time [redacted].
2. The Claimant alleges that she sustained injury in the accident which continues to affect her.

The accident

3. At about midday on [redacted] 2009, the Claimant was driving her [redacted] sedan registration [redacted] south on Newland Street, Bondi Junction towards the intersection with Grafton Street and with the benefit of a green light travelled through the intersection when the insured vehicle travelling from the opposite direction [redacted] sedan registration [redacted], turned right in front of the Claimant’s vehicle causing a head-on collision.
4. The Claimant alleges she sustained injury as a result of the accident, that some of her injuries continue to affect her and give rise to an entitlement to the recovery of damages.

Scope of the dispute

5. The scope of the dispute is:
   1. Liability has been accepted. There is no allegation that the Claimant contributed to the cause of the accident;
   2. Parties agree that the Claimant is not entitled to damages for non-economic loss;
   3. Past and future out of pocket expenses are claimed and are disputed;
   4. Past and future economic loss are claimed and disputed.

MEDICAL TREATMENT AFTER THE ACCIDENT

6. Dr Julian Chan general practitioner of Spring St Bondi Junction certified that he examined the Claimant on 9 March 2009 and was of the opinion that she was suffering from the motor vehicle accident.
7. On 9 March 2009 he referred the Claimant to Caron Marks for opinion management and review to assess her degree of post traumatic stress/anxiety.
8. On Tuesday 10 March 2009, the Claimant consulted Dr Marilyn McMurchie. Dr McMurchie recorded the following history, examination, plan and advice:

“History Notes

Symptoms

Motor vehicle accident 6 days as a driver in a head on into a turning car; air bags inflated & black out for a few seconds SB ambulance

Medical certificate needed for MTA

Examination Notes

ENT

Right Ear = small amount od wax but NOAD

Left Ear = EAC obstructed by wax

Musculoskeletal

R Shoulder = Trapezius tender & tense

L Shoulder = Trapezius mildly tender but less tense

Cervical Tenderness = Non Tender

Cervical ROM = Normal ROM

Plan Notes

Referral Letter

Request for imaging report = 10/03/2009 faxed on 10/03/2009 and follow-up telephone call to check that received

Advice

Motor Accidents Authority booklets on whiplash recovery & anxiety Rx after a MVA read (but not taken away) MTA’s MVA form completed and photocopied for file along with MC from Bondi Junction Medical & Dental Centre”

9. Claimant was assessed by a dental surgeon Dr Cheah on 18 May 2009. On examination and after 3 x-rays were taken, he was of the opinion that, notwithstanding the Claimant’s report that she had sustained some sort of trauma to her teeth in the accident, there were no fractured teeth.
10. He continued that on 20 April 2009, the Claimant returned for prophylaxis and consulted on the bruxing problem she had.
11. He continued that the Claimant returned on 27 April 2009 for filling of the UR7. The occlusal appliance of the upper anterior teeth appeared stable, and he requested that the reader please understand that the physical trauma to these teeth can lead to the teeth becoming non-vital in the future which might require root treatment followed by post-core and crowns as final restorations.
12. Treating psychologist Kellie Swan provided a report/Statement of Treatment to the Insurer on 18 September 2019.
13. Psychological intervention was implemented during the Claimant’s engagement with the NHMRC Chronic Whiplash Study.
14. Ms Swan noted that the Claimant had attended 10 sessions between 1 August 2018 and 8 October 2018. This was, however, not for treatment as such but as part of her participation in a research trial.
15. The treatment that the Claimant received was Trauma Focussed Cognitive Behaviour Therapy (TF-CBF). Ms Swan noted that TF-CBF is an evidence based intervention which aims to assist in individuals with symptoms of post-traumatic stress disorder (PTSD) and other emotional and behavioural symptoms associated with traumatic symptoms. The main goal is that TF-CBF intervention for this study included to provide psycho-education on PTSD, managing psychiatric symptoms using relaxation strategies, utilise cognitive restructuring to identify and challenge negative thoughts, use exposure therapy to manage ongoing anxiety and intrusive thoughts and feelings and provide relapse prevention.
16. Ms Swan noted that at the end of the treatment the Claimant anecdotally reported the reduction in symptoms. She also expressed motivation and intent to continue working towards further symptom reductions.
17. Dr Steve Atkin, orthodontist reported on 3 September 2019 of his orthodontic examination of the Claimant. He noted that her chief complaint related to her poor bite which she said had worsened since the accident about 10 years before, wearing an oral appliance at night to manage her nocturnal bruxing but still noted that her teeth were chipping and breaking due to tooth grinding and clenching.
18. On examination Dr Atkin noted:
    1. Class II division 1 malocclusion, with Class II buccal segment relationship on the right side
    2. Transposition of the 14 and 13 teeth
    3. Previous trauma to the maxillary incisor teeth, reportedly at the time of her car accident
    4. Veneer restorations on the 12, 11 and 21 teeth
    5. Composite resin restoration of the 22 tooth
    6. Large restoration on 15 tooth
    7. Missing teeth 17, 24, 26, and 46, as well as third molars
    8. Overjet of 6.5 mm (excessive)
    9. Deep anterior overbite with potential for traumatic contact on palatal gingiva
    10. Dental midlines deviated to LHS
    11. Mild spacing maxillary and mandibular anterior teeth
    12. Gingival recession on 31, 13 and 34 teeth
    13. Temporomandibular joint clicking RHS on opening
    14. Temporomandibular joint pain/discomfort RHS and LHS

19. Dr Atkin concluded that the Claimant would benefit from orthodontic treatment to improve her dental relationships, assist with more definitive restoration of her teeth and edentulous spaces^[1] and facilitate provision of a new oral appliance to manage her bruxing and clenching. This treatment would need to be coordinated with an appropriate treatment plan for replacement of the veneers on her anterior teeth and restoration of the edentulous space in both arches.
20. In a supplementary report of 8 October 2019, Dr Atkin stated that the missing 17, 24, 26, and 46 teeth were missing prior to his examination. He would assume those teeth were extracted on the advice of the dentist undertaking treatment at that time. He could not comment on whether any of these teeth were affected by the motor vehicle accident.
21. Dr Atkin did comment however:
    • A Class II division 1 malocclusion would likely have been present prior to the motor vehicle accident. This malocclusion is associated with an increased overjet (prominence of the maxillary teeth) which is likely to have rendered the maxillary incisors to be at higher risk of trauma from a blow to the facial region.
    • Transposition of the 14 and 13 teeth was a developmental condition, which was not caused by the accident.
    • He continued with respect to the veneer restorations of 12, 11 and 21 teeth, that these were placed prior to his clinical examination and it was possible that these restorations were required because of the motor vehicle accident. Nevertheless, ongoing maintenance and eventual replacement of these restorations is required.
    • With respect to tooth 22, the position was the same as with the veneer restorations on teeth 12, 11 and 21.
    • With respect to the restoration of tooth 15, it was unlikely to be related to the motor vehicle accident.
    • With respect to the overjet of 6.5 mm inferred to the clinical observations reflecting the Class II division 1 malocclusion discussion earlier.
    • With respect to the relevance of orthodontic treatment planning for the deep anterior overbite it was not possible to determine whether this related directly to the motor vehicle accident.
    • With respect to the deviation of the dental midlines to the left hand side this may have been present at the time of the motor vehicle accident.
    • With respect to the mild spacing of the maxillary and mandibular teeth, this may have worsened subsequent to the motor vehicle accident.
    • With respect to gingival recession on 31, 13 and 14 teeth, recession might be related to periodontal disease, changes in bony periodontal support, traumatic injury or from abrasion during toothbrushing.
    • With respect to temporomandibular joint clicking on right hand side on opening, temporomandibular joint pain and disfunction is often related to trauma and potentially is related to the trauma suffered in the motor vehicle accident. That trauma can result in changes to the ligament and capsule in the temporomandibular joint, resulting in excessive mobility of the intracapsular disc. Pain associated with temporomandibular joint disorders can be debilitating and he recommended assessment by a specialist in the area of management of temporomandibular joint pain and dysfunction for further information.

Later clinical records

22. The more recent clinical records and, in particular, the records for the Bellbowrie Family Practice beginning with the consultation with Dr Amer Nabi commence with the consultation of 18 May 2016, when there was a long discussion between Dr Nabi and the Claimant regarding her depression and suicidal ideation. She had planned suicide when her father sold his business but didn’t want to get her father involved in her problem. Her plan was to go to Thailand, take Nembutal and end her life when her father sold his business at the end of that year. She guaranteed her safety until the end of the year. She stated that she felt responsible for her Dad’s wellbeing and could not leave him alone by committing suicide now. She agreed to see a psychologist under the MHP (Mental Health Plan). The following records contain repeated references to depression and suicidal ideation, and it is clear that Dr Nabi was worried about it.
23. It should be noted that when the Claimant saw Dr Nabi on 29 October 2016 and on 3 February 2017, she had no suicidal ideation or plan at the time of those consultations.
24. It is clear from subsequent consultations including on 13 February 2018 and 15 March 2019 that she continued to complain of psychiatric symptoms, low self-esteem, depressed mood (14 February 2018), anxiety, suicidal thoughts but no attempt (14 February 2018), very poor concentration and problem with anxiety (15 March 2018), on April 2018 bad depression (but very reluctant to go on anti-depressants) but no suicidal thoughts at that time. By 1 February 2018 anxiety had gone (no suicidal thought) reason for visit was depression and she was prescribed Lexapro.

Reports by the Medical Assessment Service (‘MAS’)

25. While no medico-legal expert opinion was qualified, the Claimant was assessed by MAS by Dr Paul Nichols for dental injury and by Dr Terence Coyne for injury to the cervical spine. She was also assessed by Dr Matthew Jones for psychiatric impairment.
26. Assessor Dr Paul Nichols made a determination on 6 March 2020.
27. Dr Nichols determined that the dental injuries the Claimant had sustained, namely trauma to the upper anterior teeth, Class II malocclusion right hand side, veneers teeth 12, 22 and 15 – teeth 17, 24, 26 and 46 missing, overjet 6.5 mm, overbite, 234 was gingival recession and TMJ dysfunction with click and pain though caused by the accident, had not had a permanent impact on mastication or deglutition^[2], nor had they caused any loss of structural integrity of the face and therefore assessment of Whole Person Impairment was not required.
28. Dr Nichols noted under the heading Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident, that when she saw Dr Atkin she had felt that her malocclusion had worsened. Dr Atkin was unable to relate the malocclusion to the motor vehicle accident. He also noted that the Claimant’s Statement of Claim 29 July 2019 did not mention her teeth. She had some TMJ discomfort but that had resolved.
29. His conclusion was that there was no diagnosis related to the accident.
30. Assessor Dr Matthew Jones, psychiatrist made a determination on 3 May 2021.
31. Dr Jones took a detailed history of the Claimant who was 56 at the time of assessment. She told him that she was living with her mother and father in Brisbane, she lived alone and was not in a relationship.
32. She had lived with her parents since 2016 as she could no longer afford to live in Sydney. She came to Brisbane to work part-time for her father’s business and then within a year he sold it.
33. She told Dr Jones that her condition was like an illness, letting go of it was very difficult and the last time she did [redacted] work was later 2014/early 2015. She said she stopped the work because her whiplash would not heal. The [redacted] kit was very heavy and extensive and lifting it in and out of the boot was difficult, as was bending over people. For every day she spent on set, she spent three days laying down and taking Codeine to deal with the pain.
34. From a psychiatric perspective, she denied any history of mental health problems or having taken psychiatric medication. She had not seen a psychologist or psychiatrist before the accident. There was no history of anxiety or depression. When she was about 20, she had bacterial meningitis and was clinically dead. She said she became obsessed with her own death and was not able to function for about a year and underwent physical rehabilitation because of pain.
35. She reported that in her thirties she went to live in Paris and had a panic attack which became a disorder. She received treatment and went for 6-12 months to a therapist who cured her.
36. She reported that she would always have a glass of wine at the end of the day when she was working. About 6 months after the accident, she was drinking 3 to 4 glasses a night and her drinking stayed at that level for a long time.
37. At the time of assessment, she would spend 5 days not drinking. She said she had taken up walking and decided to walk 2.5km every morning.
38. The Claimant told Dr Jones that she went to [redacted] College [redacted] at the age of 19, returning home on holidays. She developed meningitis which changed the next 3 years of her life, and it took her a long time to get over it.
39. She told him that she was working as a stylist and had started a clothing label “[redacted]” which sold on consignment in Sydney. Her work picked up in [redacted] and she started doing more [redacted] and [redacted]. She then became a [redacted] artist until a year after the car accident and then she started working part-time for [redacted] being paid $20 per hour. She left because she was underpaid. Since [redacted] she could not afford to live in Sydney and moved to Brisbane where she stayed to work with her father. In 2017 after her father’s business was sold she got work on a [redacted] and then they let her leave because she had a problem with a man on set who she said was ridiculing her. She left the [redacted] after about 3 months.
40. She had since been unable to obtain a job in Brisbane. She had done some [redacted] and worked for the [redacted] Festival and [redacted] Zoo.
41. She described the events immediately after the car accident including how the tow truck driver drove off with her equipment worth about $20,000 and on her protestation reluctantly stopped and “threw everything out of the boot and onto the footpath”. She had to get someone to help her to pick up the equipment and the whole thing was “a schmozzle”.
42. Dr Jones records the history of symptoms since the accident [4-5]. She related outbursts of anger, dreams and super vigilance. For a while she took a lot of Codeine and started drinking a lot. She became explosive, volatile and irritable. She had bad dreams. She was really grumpy at work. She got depressed.
43. She did not see any psychologists or psychiatrists for treatment, nor did she take any psychotropic medications.
44. She reported that she had a mental breakdown and that she had lost the will to live (about the end of 2017-beginning 2018).
45. Dr Jones diagnosed a Chronic Adjustment Disorder with mixed anxiety. She had problems with sleep, appetite, variable mood, feelings of stress and anxiety. Particular anxiety related to travelling in motor vehicles, whether as a driver or passenger. She had ongoing pain and physical limitations as well as some difficulty in psycho-social situations which perpetuate her anxiety disorder. She is not receiving any treatment, but she was looking for work but finding it extremely difficult.
46. On causation, Dr Jones was of the opinion that although it had been a very long time since the accident, the trajectory of the Claimant’s symptoms led him to the conclusion that the accident had a more than negligible impact with respect to causing her psychiatric disorder.
47. On assessing Adaptation, with respect to concentration, persistence and pace, the Claimant had a mild impairment. She reported that the limitations were predominantly physical with respect to her ability to work, although Dr Jones was of the opinion that there was an element of her psychiatric impairment consistent with a class 2 mild impairment.
48. Overall, she had a 5% Whole Person Impairment as a result of her psychiatric condition.
49. Dr Terence Coyne concluded that it was likely that the Claimant had sustained a cervical spine soft tissue injury in the accident. On his clinical examination of the cervical spine, there was restriction of right and left lateral rotation to 75% of normal range, but in other respects the examination was normal.
50. The Claimant did recount persisting pain in the back and each side of her neck and said it could become severe with heavy physical activity and if she had a severe exacerbation of pain, it could last for three days.
51. Dr Coyne concluded that the history of the accident was consistent with the Claimant sustaining a cervical spine soft tissue injury, but it was unlikely she had an injury to her primary thoracic or lumbar spine of any significance.
52. The evidentiary argument therefore for the Claimant, is that she had a soft tissue injury to the cervical spine which has not resolved after more than a decade and a continuing psychiatric injury described as an Adjustment Disorder.

SUBMISSIONS OF THE INSURER

53. On 17 February 2022, the Insurer made comprehensive Submissions which I briefly summarise where relevant by reference to the paragraph numbers:

[1.1] Unrepresented until recently.

[1.2] Liability admitted. No contributory negligence.

[1.5] No entitlement to damages for non-economic loss.

[1.6] The alleged injuries are neck, dental and psychological injury.

[4.1] Claimant is 57; developed meningitis at 20; she recovered but has persisting memory impairment as a result; from her mid-20s became a [redacted]; at the time of the accident she was hoping to work in the USA.

[4.2] Claimant alleges that after the accident she had problems in her work as a [redacted] particularly activities requiring awkward neck postures. She was also a [redacted] teacher. She was writing a manual on [redacted]. A letter from [redacted], a booking service, dated [redacted] 2020 provides support for her assertion she was having difficulties working after the accident. The Claimant was taken off their books.

[4.3] Moved to [redacted]in 2016. There is a reference to a need for her to move there to assist her elderly father, to prepare his [redacted] business for sale. She remains in [redacted].

[4.4] She had trialled a number of occupations through small businesses after the accident. All these areas of work have been adversely affected by Covid-19.

[4.5] She denied a history of neck pain before the accident. She attended a whiplash clinic at [redacted] in 2017/18 after which she improved. She later participated in [redacted] work. This work was affected by Covid-19.

54. In section 5, the Submission analyses medical issues:

[5.1] The alleged injuries as neck (whiplash), dental and PTSD.

[5.2] The Claimant had some reasonably significant dental problems before the accident. She sustained a trauma to her teeth from a fall in 2008 and consulted Dr Cheah (A7).

[5.3] Significant psychological issues after the accident. She has expressed suicidal ideation for a number of years particularly in 2016. The Claimant concedes that there were issues at play which she has chosen not to discuss.

[5.4] No regular GP.

[5.5] Consulted Dr Chan at Bondi Junction and he referred her to Ms Marks.

[5.6] X-rays of the cervical spine and the thoracic spine and chest showed degenerative thinning of the disc between C5 and C6 and some arthrosis. Mild curvature at T9.

[5.8] Dr McMurchie pre-MVA GP reported that there was no history of a pre-accident injury.

[5.9] Refers to consultation note of 10 March 2009.

[5.10] Refers to Dr Cheah’s report of 18 May 2009.

[5.11] The Claimant returned to Dr Cheah on 27 April 2009 for some fillings. Dr Cheah reported the trauma could lead to the teeth becoming non-vital in the future.

[5.12] Refers to the Claimant’s allegation that in 2015 she could no longer afford to live in Sydney as she was unable to obtain secure employment due to the accident. She moved to live with her parents in Brisbane. She started attending the Bellbowrie Family Practice. No reference in the notes to that practice (A9) to any neck problems, stress or the motor vehicle accident.

[5.13] Similar consultations with a doctor at Bellbowrie on 3 May, 18 May, 27 June 2016. A long discussion about depression and suicidal ideation. No reference made to the motor vehicle accident in respect of those discussions. She was referred for treatment under a mental health plan. On 15 August 2016, it is noted that she had seen a psychologist. She declined antidepressants. She continued to have suicidal thoughts but no plan. At follow up consultations on 29 October 2016, 3 February 2017 and 13 February 2018, she was distressed with family issues. She had severe anxiety. She was referred to J Middleton.

[5.14] The Claimant declined to provide a Centrelink authority.

[5.15] On 5 April 2018, the Claimant described migraine and sinus issues. In May 2018, she described significant improvement in her depression. She was seeing Carly Lohman psychologist. No reference to the motor vehicle accident.

[5.16] The Claimant informed Allianz that those consultations were unrelated, and she declined to give an authority for the records.

[5.18] Attended Dr Atkin, orthodontist; poor bite worse since the accident; wearing an appliance for bruxing.

[5.20] Dr Atkin was unable to say whether the treatment he had recommended was related to the accident. It was possible TMJ pain and dysfunction could be related.

[5.22] The Insurer obtained the Claimant’s response to screening questionnaires from the [redacted] Treatment Program (A18). In the inclusion criteria, the Claimant stated she had neck pain as a result of the accident within the previous 5 years, the motor vehicle accident occurred outside of the period she stated.

[5.23] The Claimant recorded she was self-employed as a [redacted] working usual hours.

[5.24] Three chiropractic treatments soon after the accident by Alexei Volkov.

[5.25] Her answers to the questionnaire in our submission suggests only a mild to moderate degree of restriction. In her subsequent questionnaire of 31 January 2019, inconsistency as to whether or not she was working. She reported her pain was very mild, she described some anxiety but considerable improvement in mood.

[5.26] Refers to the statement of treatment by Kellie Swan psychologist.

[5.27] The Claimant was observed to be committed to recovery and change.

55. Section 6 highlights no medico-legal reports were produced by either party.
56. Section 7 refers to the MAS reports of Dr Nichols and Dr Coyne and refers to the certificate from Dr Matthew Jones psychiatrist; Dr Jones diagnosed a Chronic Adjustment Disorder with mixed anxiety.
57. At [9.8] - [9.20] the Submission deals with past and future economic loss, provides a summary of taxable income from 2008 to 2020 and refers to the Insurer’s understanding that the Claimant is now a Project Manager [redacted] and that her work appears to be on a contract basis. Her business is in fact an online business selling [redacted] but was obviously impacted by Covid-19. At [9.18-9.20] the Claimant presses future economic loss. It would best be considered as a modest cushion.
58. The Insurer made further Submissions on economic loss on 29 September 2022.
59. The Submission noted that the Claimant commenced receiving Centrelink payments in 2010, providing the figures for 2011-2021.
60. The Submission continued [5] that the Claimant’s taxable income has in the main been Centrelink payments, suggesting [6] that the financial records are not of great assistance.
61. At [7] the Claimant returned to real estate in 2016 receiving a gross payment of $9,000 and in 2017 a gross payment $31,473.
62. The Claimant [8] commenced as a [redacted] assistant [redacted] in 2018.
63. At [9] the Submission sets out the Claimant’s earnings in 2019-2021 from that work.
64. At [10] the Submission proposes that the only appropriate way to deal with the Claimant’s economic loss is by way of a buffer.

CLAIMANT’S SUBMISSIONS IN RESPONSE

65. I briefly summarise the Claimant’s Submission of 12 August 2022:

[4.3] The move to [redacted] was because the Claimant could not afford to live in Sydney given that her [redacted] career was over. Her father offered her a job in his [redacted] business at $350 per week. For the 12 months of working there [redacted] and her father decided to sell the business.

[4.4] She went into unemployment after the accident and worked part time at a [redacted] company for $20 per hour. She applied for the NEIS to start up her business. She completed the course. The business was [redacted]. Revenue went to reordering stock. If she had received a payout from Allianz, she would have had enough money to keep the business going. Covid-19 did not affect her business. She was already financially strapped. Covid-19 was way after her [redacted] career ended.

[4.5] Covid did not affect her [redacted] work. [redacted] were deemed necessary employment [redacted]. Her age was the problem as younger employers did not want to work with older people under them.

[5.2] The injury she sustained at a Bondi Beach park when she fell was chipping the bottom of one of her front teeth.

[5.3] The accident caused persisting neck injury which did not heal while she worked in [redacted]. [redacted] was her ‘whole world.’ Working for her father for $350 per week was painful. She developed depression. The accident took her life from her, and she deteriorated.

[5.7] Was not a regular patient of Dr McMurchie. Only saw her three times as her regular doctor had left to give birth.

[5.8] Dr Cheah did not make notes.

[5.10] Grinding her teeth from stress and anxiety was directly related to the accident.

[5.12] She had been living with neck pain for so long she didn’t tend to bring it up with the doctors. She only discussed her new medical ailments. She has a system of going to bed for two days, taking a lot of Codeine and Nurofen when her neck pain kicks in. Pain is stress related to lack of money, work, hardship etc. Once you have whiplash it becomes a permanent weak spot that flares up under stress. You can never get rid of it.

[5.14] She provided a signed Centrelink authority at the same time as she signed the Medicare form.

[5.16] She told Dr Lohman about the accident. Tanya Howe from Allianz was an aggressive bully. Dr Lohman didn’t trust her, that is why the records were not shared.

[5.23] The Claimant was embarrassed about being unemployed and she put the [redacted] website down.

[5.25] She definitely had PTSD caused by the accident.

66. The Claimant then goes on to summarise the MAS reports.

[7.1] She didn’t have her dental records on her when she went to see Dr Nichols for MAS.

[7.10] The interview with Dr Jones was “surreal” because it was hard to relate to him audio visually. Process was unsatisfactory.

67. The Claimant at [9] makes Submissions on Non-economic Loss. She appears to ignore the fact that she has no entitlement to non-economic loss damages.
68. With respect to economic loss, the Claimant makes Submissions at [9.9] – [9.20].

[9.9] The [redacted] business failed because she needed money to put into the range to keep going. She could not get it off the ground properly and she needed about 6 years to turn a profit.

[9.10] The Claimant has never worked as a [redacted] Manager, she worked for her own small [redacted] company;

‘[redacted].’

[9.11] The Claimant was able to pick up some [redacted] management work which is nothing like [redacted] Managing. [redacted].

[9.12] Deals with taxation returns and tax figures. She says the tax return ending 30 June 2009 showed a net income of $56,540.00 and that for 2010 a net income of $50,689.00. She submits that based on these amounts and the fact that her career was on the rise, her future earnings would at least have been $65,000 per year.

The Claimant continues from 2011 onwards she had been on unemployment benefits except 2016 when she worked for her father for $350 per week. He sold the business in February 2017 and she was out of a job.

[9.15] The Claimant continues that she moved permanently to [redacted] to her parent’s home in late 2015 because she could not afford to live in Sydney.

[9.16] Covid was irrelevant. She was not receiving an income from the [redacted] business long before Covid as she could not put money back into the business to keep it going properly. The Allianz payout would have been a big help to keeping it afloat while she built it up. Covid was not a factor.

[9.17] She strongly disputes this way of calculating the loss of income. She lost her [redacted] career due to the car accident when she was 45 years old, just hitting her stride and she loved her job, it was her chosen profession.

[9.19] She had not built up a [redacted] management business in the [redacted] industry. She has applied for thousands of jobs and been rejected.

69. The Claimant sets out her summary of damages at [10]:

“I am seeking

$65,000 for 13 years,

$25,000 for Dental,

$5,000 for medical,

$150,000 for injury to my neck and trauma and emotional damage from the car accident on 5 March 2009.*

$9,990 Solicitors fees

TOTAL CLAIMED: $1,034,990

LESS: $256,815 Estimated Centrelink Repayment”

Past out-of-pocket expenses

70. In the Claimant’s Concluding Submissions in reply to the Insurer’s Concluding Submissions, undated but lodged to the Portal on 2 September 2022. The Claimant says that $5,000.00 as out of pocket expenses for past medical expenses was agreed, however, the Insurer’s solicitor said Allianz would not oppose an increase in agreed out-of-pocket expenses and the Claimant believes an increased amount to a total of $10,000.00 is reasonable as past and future pain cures are expensive.
71. The Insurer’s Submission of 17 February 2022 proposed an amount of $5,000.00 on the basis that given the effluxion of time it was unlikely that the Claimant could adequately particularise her loss and that in the circumstances $5,000.00 would be fair.
72. Given the long period of time which has elapsed and given the likelihood on the evidence that the Claimant would have spent substantial amounts on medication and noting the Medicare notice of charge referred to by the Insurer’s solicitor [9.2], I assess on a buffer basis an amount for past medical and pharmaceutical expenses of $7,500.00 of which $365.00 will be deducted for payments made by the Insurer and $343.20 will be repaid to Medicare.

Future out of pocket expenses

73. The Insurer’s solicitor submitted [9.4] 17 February 2022 that there was no evidence supporting a need for further treatment and that ongoing psychological issues did not appear to relate to the motor vehicle accident. Nevertheless, [9.6] the Insurer previously proposed the amount of $25,000.00 and commented that this amount seemed more than reasonable based on the information on hand and resubmitted that amount.
74. I consider that the approach taken by the Insurer is eminently reasonable and justified on a buffer basis noting the length of her life expectancy and given that her accident-related symptoms are likely to persist and given their chronicity and duration to date.
75. The Claimant has not provided an evidentiary basis for any more significant amount.

Past economic loss

76. The Claimant’s problem is that she has developed no coherent basis for her claim for economic loss. Her claim for a net loss of $65,000 a year for 13 years has to be based on solid evidence.
77. The best support for the proposition that the accident caused a medical condition which has impacted upon the Claimant’s capacity to derive income and therefore constitutes an impairment in her income earning capacity is that of the psychiatrist Dr Matthew Jones. His opinion was that the Claimant’s narrative was consistent with having a Chronic Adjustment Disorder with mixed anxiety associated with ongoing pain and physical limitations.
78. Although it had been a very long time since the accident, the trajectory of her symptoms led him to the conclusion the motor vehicle accident had a more than negligible impact with respect to causing her psychiatric disorder.

Consideration of past and future economic loss

79. The Claimant has established a continuing psychiatric condition namely that described in paragraph [47] above which on the balance of probabilities does constitute at least a partial impairment to the earning of income. She has applied for a multitude of jobs unsuccessfully and on the balance of probabilities the psychiatric condition and the Claimant’s subjective but genuine belief that she is physically impaired as a result of the accident has meant that she has been largely unsuccessful in obtaining employment.
80. The fundamental principle relevant to assessment of damages for future economic loss is:

(i) Does the Claimant have a relevant impairment?

(ii) Will it result in financial loss?

81. The leading case is Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 where the Court by a majority of Deane, Dawson, Toohey, Gaudron and McHugh JJ stated the principle in the following terms:

‘2. A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct, but related requirements are satisfied. The first ... is ... that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second ... is (that) ‘the diminution of ... earning capacity is or may be productive of financial loss’ (referring to Graham v. Baker [1961] HCA 48)’

82. The process by which I am required to arrive at a proper determination of future economic loss is set out clearly in the cases.
83. In IAG Ltd t/as NRMA Insurance v Damian Mares [2016] NSWSC 1792, Hall J said this with respect to the correct assessment of future economic loss:

(a) s 126 does not prevent the award of a cushion or buffer for future economic loss [para 68];

(b) the following formulation, which was approved by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61, applies [para 69]:

(1) Assess the “most likely” of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);

(2) Assess the claimant’s economic prospects as a consequence of the accident;

(3) Compensate the claimant for the difference between (1) and (2), including, where appropriate, through the use of a buffer;

(4) Adjust (3) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (1) even had the accident not occurred;

(5) Include a statement of the assumptions made as the claimant’s most likely future circumstances and the appropriate percentage adjustment as to the above formulation see also Leslie & Britts, Motor Vehicle Law New South Wales, at [MAC.126.40].

84. In Dal v Chol [2018] NSWCA 219, White JA said [at 24]:

“... Indeed, an award for future economic loss based on an assessment of the difference between the respondent’s likely earnings as a qualified motor mechanic and his actual earnings at the time of trial ($217 per week) applied to his likely working life, discounted for vicissitudes and applying the five per cent discount rate to calculate the net present value of the loss over that period, would have been unexceptionable.”

85. In Allianz Australia Insurance Ltd v Kerr [2012] 83 NSWCA 13 Basten JA stated at [24]:

“The applicant's submissions focused on the language of s 126, but identification of the specific non-conformity relied upon would have illustrated the insufficiency of that approach. Section 126 does not purport to codify legal principles relevant to assessment of loss of earning capacity. It does not identify factors to be taken into account in making an assessment. Nor does it appear to depart from or vary the general law principle that the compensable loss is not a loss of income but the loss of capacity to earn income which "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; 106 CLR 340 at 347; State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71] (Heydon JA); State of New South Wales (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [86] (Beazley JA; Allsop P and Macfarlan JA agreeing). Income earned prior to the accident may well be the best evidential basis to assess the earning capacity of the claimant, but for the injury, subject to adjustment for the passage of time since that income was last earned. Income earned between the accident and the trial may be (but often is not) a good indicator of current capacity. The latter may be capable of extrapolation into the future, but it will usually be necessary to consider whether, and to what extent, both pre-accident capacity and post-accident capacity might have been and might be expected to vary in the future.”

86. His Honour continued at [26]:

“In Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638, three members of the Court (Deane, Gaudron and McHugh JJ) referred to the exercise in respect of hypothetical events, stating that "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": at 643. It has been submitted (though not determined) that s 126 replicates that approach: State of New South Wales (NSW Police) at [88]. If so, it appears to disregard the remarks of Brennan and Dawson JJ at 640:

"Although we agree with the general thrust of the reasoning on this point in the judgment of Deane, Gaudron and McHugh JJ, we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation."

87. His Honour then summarised the comprehensive review of the principles to be found in this area quoting from Heydon JA in Moss.
88. His Honour also reproduced the assumptions about future earning capacity at [31] and other events as noted in Nominal Defendant v Livaja [2011] NSWCA 121 at [41]:

“The assumptions or events upon which a baseline may commonly be calculated include:

(a) identification of the skills, training and experience of the plaintiff, as at the date of the accident;

(b) the work he or she was undertaking immediately prior to the accident;

(c) the likelihood that he or she would have continued in such employment, but for the accident;

(d) the possibility that he or she might have obtained promotion or other benefits, but for the accident;

(e) the age to which he or she was likely to have worked in that employment, and

(f) the possibility that the employment would not have been continuous."

89. Section 126 of the MACA provides:
    1. A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

2. When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

3. If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

90. What were the Claimant’s most likely circumstances but for the accident?
    1. The Claimant probably would have continued to have worked as a [redacted], which she had commenced in her mid-twenties.
    2. The Claimant probably would have been well and probably would have avoided the full extent of anxiety and depression she has suffered.
    3. She would have worked until she retired, probably in her mid to late sixties.

91. The Claimant’s evidence provided is fragmented and largely unhelpful.
92. The Claimant sustained injury in the accident on 5 March 2009 and accepting that one of the injuries was a soft tissue injury to the cervical spine and accepting that it was relevant for at least a period of time that the Claimant had (and I accept this as truthful) difficulty with lifting her [redacted] equipment.
93. She did have a relevant impairment when combined with the psychiatric condition.
94. One of the difficulties in assessing past economic loss is that the Claimant’s taxable income in 2009 was $56,540, and in 2010 increased to $50,589, before dropping considerably in 2011 to $21,417 with a further significant drop in 2012 to -$4,903.
95. Why the income was substantial in 2009 and 2010 is not explained.
96. Taxable income is only $13,316 in 2014, $13,212 in 2015 and $15,928 in 2016. It increases to $32,250. We know that the Claimant worked for her father in the real estate business in that year.
97. The preparation of the case is poor. There is no qualified medico-legal expert opinion whether from a psychiatrist or in respect of the physical injuries. Both of these conceivably could have been of assistance in formulating the claim for past economic loss.
98. It should be made clear that there is no criticism of the Claimant’s solicitor. I have no information as to when he came into the matter or to what extent he was involved or able to obtain proper instructions.
99. It is clear as submitted by the Insurer’s solicitor that the case can only be compensated on a buffer basis. The evidence of an impairment, particularly psychiatric, is sufficient to satisfy Medlin and it is clear there has been a loss in the past although the full extent of the loss cannot be determined with any precision.
100. The Insurer submitted that an appropriate buffer was $130,000. This amount is insufficient particularly when you take into account the evidence that the Claimant was able to earn quite reasonable sums of money at various times in her career before the accident.
101. Taking into account the lengthy period in question, from March 2009 to November 2022, I consider that a buffer in the sum of $200,000 is appropriate. The Claimant has on the balance of probabilities sustained an economic loss, but the amount cannot be calculated with precision.
102. The Claimant probably would have been working for herself, and the buffer therefore does not include past loss of superannuation.

Future economic loss

103. The Claimant has spent a very considerable period of time from 2011 to 2021 at least on social security benefits. Given her current position and the psychiatric impact of her injury, the Claimant is unlikely to obtain employment soon.
104. Although, the psychiatric condition has had an impact the evidence in respect of the continued relevance of the soft tissue condition is not strong.
105. Generally, the Claimant has not been able to put forward a convincing case for long term future economic loss in regard to the order and amount she claims. There is sufficient evidence to indicate the psychiatric condition, and to a lesser extent, the residual symptoms of her soft tissue injury continued to be a barrier to obtaining employment.
106. I consider it causatively reasonable to find that the Claimant’s condition is continuing to have more than a negligible impact and probably a substantial impact on her capacity to find employment and on that basis, it is reasonable to assess a buffer for future economic loss which I do in the amount of $150,000.00 covering the period until her mid to late sixties.
107. The authorities which permit the buffer in such circumstances where a loss is likely but the amount cannot be determined with precision are: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302, Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579; QBE Insurance (Australia) Ltd v Volokhova [2014] NSWSC 726, IAG Limited t/as NRMA Insurance v Al-Kilany [2017] NSWSC 342 (30 March 2017), Sretenovic v Reed [2009] NSWCA 280 per McColl JA at paras 79-86, Allianz Australia Insurance Limited v Sprod (2012) 81 NSWSC 626, Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 (16 September 2014) and Allianz Australia Insurance Limited v Zein  [2016] NSWSC 196 ; IAG Limited v Priestley [2019] NSWSC 1185 per Fagan J (criticising at [24] the decision to award a buffer for future economic loss devoid of explanation where the assessor had said that he had taken into account a number of variables but did not quantify them in his assessment of the buffer nor did he determine the Claimant’s most likely future career alternatives or make any findings as to her weekly work hours and the reduction of same as a result of her impairment.)

ASSESSMENT OF DAMAGES SUMMARY

108. Under Sub-section 94(1)(b) of the Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
109. I assess the claim as follows on the findings set out above:

Economic losses

• Past loss of earnings $ 200,000.00
• Future loss of earnings $ 150,000.00
• Past Out-of-Pocket Expenses $ 7,500.00
• Future Out-of-Pocket Expenses $ 25,000.00

Total of economic losses and non-economic loss $ 382,500.00

Total Damages Assessed $ 382,500.00

110. The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
     • Payments made by the Insurer $ 365.00

Total credit the Insurer is to receive $ 365.00

Regulated Costs

111. There were 3 MAS Assessments all referred after 1 April 2015 for which I award $ 1,500.00.
112. I assess the amount of $1,250.00 for the PIC Hearing.
113. Given the complicated nature of the matter I allow for 4 conferences at the rate of $300.00 per hour for a total of $1,200.00.

^[1] Edentulous – without teeth.
^[2] The action or process of swallowing