AAC v NRMA Insurance
[2021] NSWPIC 45
•23 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAC v NRMA Insurance [2021] NSWPIC 45 |
| APPLICANT: | AAC |
| RESPONDENT: | NRMA Insurance |
| MEMBER: | Margaret Holz |
| DATE OF DECISION: | 23 March 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Claims Assessment; dispute about the amount of damages the applicant is entitled to; applicant claimed common law damages; agreed that applicant not entitled to compensatory damages for pain and suffering; applicant entitled to recover damages for past and future loss of earnings and impairment to earning capacity; Held- defendant owed a duty of care; defendant breached that duty of care; applicant suffered past loss of earnings and future loss of earnings; applicant at a disadvantage on the open labour market; damages assessed according to sub-section 7.36(1)(b) of the Motor Accident Injuries Act 2017. |
| DETERMINATIONS MADE: | 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. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017 (the Act), I specify the amount of damages for this claim as $48,500. 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 Act is $13,344.92 inclusive of GST. |
Reasons for Decision
Issued under section 7.36(1) of the Motor Accident Injuries Act2017
BACKGROUND
On 4 June 2018, AAC (the claimant) then aged 28, was walking across a pedestrian crossing at the corner of Old South Head Road and Albemarle Avenue, Rose Bay, when a car turned right onto Old South Head Road and struck her. She fell onto the driver’s bonnet and then onto the roadway, suffering injury.
A claim for statutory benefits was lodged with NRMA Insurance, the insurer of the vehicle that struck her. NRMA accepted that its vehicle was at fault and that the claimant’s injuries were of a non-minor nature, thus entitling her to a lifetime of treatment and care.
The claimant has subsequently claimed common law damages. The parties have agreed that her injuries have not resulted in an impairment which satisfies the statutory threshold prescribed by section 4.11 of the Motor Accident Injuries Act2017 (the Act) and thus she is not entitled to compensatory damages for the pain and suffering she has endured since the accident. She is however entitled to recover damages for past and future loss of earnings and impairment to her earning capacity.
Before dealing with those issues, I will briefly outline the claimant’s injuries and treatment and the evidence that she has given as to how those injuries have impacted her ability to earn. Those matters will inform my assessment.
It is relevant to record that having seen the claimant give evidence during the course of a video conference, I formed the view that she is a truthful witness, not given to exaggeration or fabrication and that her evidence is reliable.
INJURIES AND TREATMENT
The claimant says that she recalls, immediately after the accident, experiencing pain to her head, right hip, right buttocks, lower back, right knee, right ankle and left wrist. There was also a small chip on her upper front tooth and various bruises and abrasions to her right shin and right foot.
She was conveyed by ambulance to St Vincent’s Hospital where she was x-rayed and administered medication for pain. She was discharged later that day with advice to rest and take analgesia.
The claimant then came under the care of her general practitioner at the Bondi Junction 7 Day Medical Centre. At her first attendance, she complained particularly of pain in the right knee and ankle. She was referred for an ultrasound to the right ankle and an MRI scan to the right knee. It was noted that she had been traumatised and felt emotional, freezing when she heard the pedestrian signal allowing her to cross.
The ultrasound to the right ankle showed a number of abnormalities and a CT scan was recommended for clarification. This confirmed a cortical avulsion at the lateral talus involving the talofibular ligament attachment. Moderate joint effusion was also seen. The MRI to the right knee showed a bone bruise consistent with a direct blow and oedema consistent with a low-grade meniscal sprain.
The claimant was referred to Orthopaedic Specialist, Dr Andrew Wines, who reported on 18 June 2018 that she was mobilising with a barely perceptible limp, had a mildly swollen right ankle with tenderness and restricted movement. He recommended physiotherapy as well as pool and gym based rehabilitation.
By 16 July 2018, according to Dr Wines’ report, the claimant was improving with her right ankle, but was complaining of ongoing discomfort in her left wrist. She had earlier undergone a wrist x-ray which was reported to be normal. Dr Wines referred her for an MRI scan, which, according to his report, demonstrated inflammation in the tip of the left ulnar styloid as well as a full thickness tear of her triangular fibrocartilage. He suggested that she see Dr Beard, Hand Surgeon, in relation to the wrist.
Before seeing Dr Beard, the claimant attended for a final time on Dr Wines on 27 August 2018, when she reported that she was mobilising more comfortably and that her ankle felt relatively stable. She did not limp and there was minimal swelling or tenderness in the ankle, with no evidence of lateral or syndesmotic ligament instability. Dr Wines expected her to make a full recovery over the next three to six months.
Two days later, the claimant saw Dr Anthony Beard. She complained to him of pain around the ulnar aspect of the wrist and of having later developed secondary muscle spasm in the mid forearm. It was painful to drive or rotate her forearm and her wrist felt unstable and weak. She used a splint from time to time. She had problems with pushing up off the palm of her hand.
Dr Beard noted that the claimant had a pre-existing deformity in both wrists but suspected that the impact had caused injury to the ulnar styloid and caused the abnormality in the triangular fibro-cartilage to become more significantly damaged and symptomatic. He recommended simple anti-inflammatories and that she avoid activities that would impact her wrist.
The claimant did not see Dr Beard again until 1 February 2021, not long before the assessment conference. The doctor reported that her pain had improved, but not yet completely resolved and she had been avoiding many physical activities such as tennis. She was attempting to resume her yoga and reported difficulty with weight bearing on her extended wrist.
The doctor considered that she had a remarkably good wrist with good range of motion and function for many tasks, although it may be difficult to get back to completely normal function.
Having arranged an updated MRI study, Dr Beard subsequently reported that the changes were similar to those seen in the original MRI with some small areas of cystic change around the wrist. He noted that the claimant lacked the last 15 degrees of wrist extension and that when she forced those last few degrees, the wrist became painful. Activities such as planking, surfing and doing push-ups were therefore a problem to her. The doctor recommended against doing these as they were likely to cause ongoing inflammation and pain. He considered that her injured wrist would not completely resolve but advised against an arthroscopy. The claimant had been using a wrist widget with some considerable benefit and he thought it reasonable that she continue to do so. He also recommended massage and strengthening exercises.
MEDICO-LEGAL REPORTS
Each of the parties has arranged a medico-legal opinion, the first of these chronologically coming from Dr Frank Machart of 25 July 2019 to the insurer. The claimant complained to him of having continuing pain in the left wrist and right ankle with spasms and discomfort in the lower back, the latter from having fallen heavily on to the right side sustaining bruising to the right torso and hip area. Her right ankle clicked and was at times unstable and she found it difficult to stand for lengthy periods of time. She could not run and found it difficult to do anything repetitive with her left wrist, including writing for lengthy periods.
Dr Machart raised the possibility of arthroscopy for each of the left wrist and right ankle and a potential ligament reconstruction in the right ankle. He thought, however, that such treatment would not be necessary.
As regards her capacity to work, the doctor opined that after the first couple of months post-accident, she would have been reasonably fit for her pre-injury work and that her future work capacity was unlikely to be impacted on by the injury.
The claimant’s medico-legal expert, Dr Evan Dryson, reported on 1 June 2020. He recorded that the claimant had difficulty standing for more than about 10 to 20 minutes at a time because of problems with her right ankle and that she could no longer jog. Stairs, slopes and uneven ground were difficult and caused pain and she could only manage about 10 minutes of driving.
Her left wrist had reduced range of movement and she dropped objects because of decreased strength. She was no longer able to do yoga. He recorded that her work as a locum pharmacist had been impacted. Her work as a pharmaceutical representative involved a degree of driving, as far as Port Macquarie. She had seen a counsellor for symptoms of anxiety after the accident and was undertaking meditation. She was using Voltaren two or three times a week.
Dr Dryson accepted the claimant’s left wrist injury would affect her ability to undertake activities such as handwriting or other work above light physical demand. He accepted that she was not able to undertake work involving frequent to constant standing or driving for more than an hour at a time.
THE CLAIMANT’S EVIDENCE
The claimant has provided two statements and gave sworn evidence at the assessment conference. In her second written statement of 18 February 2021, she stated that she had recently enrolled in surfing lessons but had difficulty due to pain and had not resumed. She also enrolled in a yoga instructor course and had thought of becoming a yoga instructor as a means of supplementing her income.
Although she says that she cannot jog, she later conceded that she does jog from time to time, but not as much as she used to do, limiting herself to a 6 to 7 km jog. She can go trail walking and is an avid participant in yoga.
In terms of her employment, the claimant maintains that she would have difficulty being on her feet all day to work as a locum pharmacist and that she would have difficulty in driving long distances to visit medical practices as part of her current position as a pharmaceutical representative. It appears however, that travel is fairly rare in her job and that she has worked from home since the onset of COVID restrictions. She mentioned a couple of trips to Newcastle.
She maintained on questioning that she could not work as a locum pharmacist, that using a perching stool was not an option and that the typing involved in being a pharmacist would be beyond her. The claimant says that her emotional symptoms are still in evidence and that she remains very anxious when crossing a road, especially at main intersections.
The claimant was questioned about her various travels since the accident. Within a few weeks of the accident, she travelled overseas with a friend to Poland and other countries for about three weeks. There was another trip to Poland last year and in January 2019, she travelled to Boston for training with her former employer for a period of about 10 days. In between, there have been numerous domestic trips, mainly to Melbourne. She made no mention of difficulties when travelling.
I accept that the claimant continues to experience restriction and weakness in the wrist and that when her wrist is fully extended, such as when she does push-ups or planking, it is painful. Dr Beard advises against her doing this and it is quite likely that this will be a lifelong restriction for her.
While she claims a loss of potential income through not being able to work as a yoga instructor, this is a very late claim. She enrolled in a yoga instructor course in only 2021, apparently after Dr Beard had told her that she should not engage in activities that caused her wrist to be painfully extended. I accept that being a yoga instructor is probably beyond her, but, as the insurer submits, it is difficult to understand why such a claim would be made when the claimant has been told that forceful wrist extension should be avoided. Further, there is no evidence of how much a yoga instructor might earn and whether such work would be available to her.
I accept that the claimant does continue to experience some pain in the left ankle. While she says that she is yet to see Dr Wines again, it appears that she did not see anyone in relation to either her wrist or ankle for the whole of 2019 and for much of 2020, seeking a referral to Drs Beard and Wines only at the end of 2020. She explains the absence of consultations on the basis that she had been told that nothing much could be done for a couple of years.
I am not persuaded that the ankle is a major source of problem to her, given that she is capable of trail walking and jogging 6 or 7 kilometres. I appreciate that her current level of physical activity is restricted, when compared with her very active pre-accident lifestyle. She has not however been impeded in her ability to travel overseas or interstate and has made no complaint of difficulties in that regard. Furthermore, she has been capable of holding down a fulltime job as a pharmaceutical representative from the time of the accident up until the present.
For someone who has obviously been very fit, the effects of this accident are more than minimal and I accept that her lifestyle has been impacted more than might be the case for someone less active. However, the claimant does not qualify for an award of general damages that might compensate her for those losses.
I discuss below the impact on her income and earning capacity, both past and future.
DAMAGES
Past economic loss
The claimant is a pharmacist, having obtained her licence in around 2013, so far as I can ascertain. She worked as a licensed pharmacist for about a year and then obtained a fulltime position with a pharmaceutical company which involved pharmaceutical research and sales and remained there for a couple of years. During that time, she started working as a locum pharmacist at weekends. She says she worked 1 to 2 days per week for 8 hours on each occasion with a pharmacy in Bondi Junction.
In about 2016, she obtained a job with XXX Pharmaceuticals, working fulltime as a medical information specialist. This was the position that she held at the time of the accident, while also working as a locum pharmacist. She remains registered as a pharmacist, but has not worked as a locum since the accident.
Around the end of July 2018, she left XXX Pharmaceuticals and joined YYY Pharmaceuticals, doing much the same work but at a considerably increased salary including performance bonuses. She worked for YYY until April 2020 and during that time, was sent overseas for a training course in Boston in January 2019. The claimant obtained another job after leaving YYY Pharmaceuticals, this being essentially the same job with a different company, ZZZ Pharmaceuticals. She remains in that position and is paid less than she was with YYY. She mainly works from home.
Her claim for economic loss is put on two bases:
(a) A loss of income as a locum.
(b) A loss of income from her fulltime position with a pharmaceutical company.
Loss of work as a locum
In written submissions, the claimant claims $43.50 per hour for 12 hours per week for every week from the accident up to the present time. At the assessment conference, she conceded when being questioned about the amount of work that she did as a locum, that in the 2017 tax year she earned the equivalent of about six days’ work as a locum and in the 2016 tax year she earned the equivalent of about nine days’ work as a locum. She declared no income at all from working as a locum in the 2018 tax year.
She was questioned about a letter sent from the pharmacy indicating that she had lost two locum shifts after the accident. In fact, the letter stated that, “According to AAC, she was scheduled to work in the 10th June 2018, and was requested to work on the 14th July 2018, but was unable to cover these 8-hour shifts as a result of injury following her accident”. Accepting that this information was correct, the claimant lost two days of work as a locum up to and including 14 July 2018, some six weeks post-accident. The claimant agreed that the work as a locum was very infrequent and that when she started with XXX Pharmaceuticals, her locum work became less frequent.
A few weeks after the accident, the claimant went overseas and upon her return, moved from the Eastern Suburbs to the Manly area. She did not return to the Bondi Junction pharmacy and has never sought locum work in the northern beaches area.
The insurer submits that I should make no allowance at all for the loss of income as a locum and points out that there is no medical evidence to support that the claimant cannot do this work. I agree that the evidence does not support anything like the claim being made for lost income as a locum. There was no regular locum work being performed for some time before the accident and the move to the Manly area would have prevented her, realistically, from continuing with the Bondi Junction pharmacy.
In the circumstances of this case, given the evidence of minimal participation in locum work up until 30 June 2017 and no participation (apart from the brief letter from her former employer) in locum work after that time, it is appropriate in my view to award a small buffer to represent such loss of income as a locum pharmacist as can be ascribed to the effects of this accident. I accept that the claimant’s difficulties standing for prolonged periods may have deterred her from seeking locum work following her move to the northern beaches. In my view, that loss can be adequately compensated by an award of $5,000.
Loss from fulltime work in pharmaceutical company
The claimant had about a week and a half off work with XXX Pharmaceuticals and claims a loss of $1,882.79 for that period. The insurer points out that the payslip relating to the immediate post-accident period suggests that the claimant did not take any time off work in that she was paid “normal” hours during that month. Given the severity of her injuries, I accept that she did in fact take time off, although I agree that there is minimal evidence that her time off resulted in an actual loss of income.
She says that she worked on with XXX after the accident for about three months, but also says that she obtained her job with YYY Pharmaceuticals at the end of July 2018 which is less than three months post-accident. She travelled overseas from 23 July 2018 to 13 August 2018 so it may be that she commenced with YYY after her return from her travels.
Her job with YYY paid considerably more than she had been earning with XXX Pharmaceuticals. She says that she had a number of absences related to the accident and that her performance and absenteeism resulted in that company’s decision to outsource her role from April 2020. She obtained a new position at a much lesser salary. There is however no claim that she lost income as a result of the change of position from YYY to her current employer. Instead, she claims $2,000 for the days she had off work following the initial 1.5 weeks post-accident.
I interpolate that there has been a large quantity of irrelevant material lodged in relation to what has turned out to be a very modest claim for loss of income from the claimant’s full-time employment.
There are various payslips supporting that the claimant took two days of sick leave in June 2018 (presumably immediately after the accident) and about two days of sick or annual leave in June 2019. There is evidence of her taking a day of personal leave in July-August 2020. There is however nothing to indicate that the leave taken in 2019 and 2020 was related to the accident.
In the circumstances, I think it fair to award the claimant an amount of $3,000 to represent her losses from her fulltime employment after the accident. Adding this to the assessed loss as a locum, my award for past economic loss therefore totals $8,000, such sum to include any loss of employer-sponsored superannuation.
Future economic loss
For the future, the claimant seeks an amount of $150,000 for loss of future earnings, plus loss of future superannuation.
The claim for future economic loss is based on an assumption that, but for the accident, the claimant would have worked for the foreseeable future on a fulltime basis in the pharmaceutical industry and on the weekends as a locum pharmacist to supplement her salary. It is submitted that at some time in the future, she would have ceased her weekend work as a locum and continued working on a fulltime basis, either in a research based pharmaceutical role or as a locum pharmacist up until her proposed retirement age of at least 67 years. It is submitted that she can no longer pursue this career path, unimpeded by the effects of the accident.
She relies on the opinion of Dr Dryson that she is not able to undertake work which involves frequent to constant standing or which requires greater than light physical demand and that she is not able to drive for more than one hour at a time. The claimant’s recent supplementary submissions add an allegation that she cannot teach yoga without aggravating her injuries. This claim has never previously been raised and I regard it with a degree of circumspection.
The insurer submits in response that there is no reason that the claimant cannot use a perching seat if she chooses to work in a pharmacy. It also relies on the 2019 opinion of Dr Machart that the claimant was fit then for her pre-injury work and that her future capacity was unlikely to be impacted by her injuries.
I am satisfied that but for the accident, the claimant would have worked fulltime in pharmaceutical research and sales or in some similar position to retirement age. I am also satisfied that she may have supplemented her income from time to time with locum work. I am not satisfied that she would have worked as a yoga teacher.
I accept that she may have difficulty in carrying out work requiring her to stand all day, but I am not persuaded that, given her history of only occasional locum work, she would necessarily seek this work on other than a very piece-meal basis or for more than a limited period into the future. While I accept some interference with her capacity to work unrestricted as a locum pharmacist, I am not satisfied that this interference should sound in other than a small amount of damages.
I am satisfied that her ability to work full-time for a pharmaceutical company has also been impacted to a minor degree by the effects of the accident in that she may have difficulty with travelling long distances to visit prospective clients. As such, I accept that the claimant is at a disadvantage on the open labour market.
In circumstances such as this where there is no current actual economic loss, but where the claimant is a high-income earner and where any absence from work may produce a substantial monetary loss, it is appropriate in my view to award a buffer.
Having regard to the evidence, including the claimant’s tax returns and statements and the medical evidence, it is my view that an appropriate figure for future economic loss is $40,000, such sum to include any loss of superannuation benefits.
Travel expenses
The claimant seeks the sum of $500 for travel expenses. The insurer concedes that this is appropriate and I award that sum.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply and any further information provided by the parties.
ASSESSMENT OF DAMAGES SUMMARY
Under sub-section 7.36 (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.
I assess the claim as follows on the findings set out above:
· Past loss of earnings (incl. superannuation) $ 8,000
· Future loss of earnings (incl. superannuation) $ 40,000
· Other $ 500.00
Total Damages Assessed $ 48,500
Costs and disbursements
I assess the claimant’s legal costs and disbursements in the sum of $13,344.92 in accordance with Part 8 of the Act and the Motor Accident Injuries Regulation and in accordance with the attached sheet.
Conclusion
| · 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. · Under sub-sections 7.36 (3) and 7.36 (4) of the Act , I specify the amount of damages for this claim as $48,500. · 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 $13,344.92 inclusive of GST. |
Legislation
In making my decision I have considered the following legislation and guidelines:
Motor Accident Injuries Act 2017 (NSW);
·Motor Accident Injuries Regulation 2017, and
·Motor Accident Guidelines 2017.
Margaret Holz
Member (Motor Accidents Division)
Personal Injury Commission
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