AAI Limited t/as AAMI v Sainsbury
[2025] NSWPIC 97
•20 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Sainsbury [2025] NSWPIC 97 |
| CLAIMANT: | Ann Sainsbury |
| INSURER: | AAI Limited trading as AAMI |
| MEMBER: | Terence Stern OAM |
| DATE OF DECISION: | 20 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of settlement of $95,000 under section 6.23; claimant sustained psychiatric injury as a result of her mother’s death in a motor vehicle accident; liability admitted by insurer; past and future damages for economic loss awarded; Held – settlement of $95,000 approved as just, fair and reasonable, and within the range of likely outcomes. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 The proposed settlement in the sum of $95,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017.1. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Ann Sainsbury (Ms Sainsbury) was born in June 1975.
On 4 October 2021, she suffered injury as a result of a motor vehicle accident (the Accident) which Medical Assessor Alexey Sidorov described in his assessment of 25 June 2024.
Medical Assessor Sidorov certified on 8 July 2024 that Ms Sainsbury had sustained psychiatric injury as a result of the accident for which he certified 7% whole person impairment (WPI) as a result of his diagnosis of a major depressive disorder.
In consequence, Ms Sainsbury is not entitled to damages for non-economic loss.
Ms Sainsbury has not been legally represented.
On 4 October 2024, I held a preliminary conference. Ms Gazdag appeared for the insurer and Ms Sainsbury appeared.
In the preliminary conference report (PC) of 4 October 2024, I noted that Ms Sainsbury’s mother had been fatally injured in the Accident. Coincidentally, the PCR was on the third anniversary of her mother’s death.
I noted in the PCR that although Ms Sainsbury did not witness the Accident, the Insurer AAI Limited trading as AAMI (the Insurer), had conceded that she was entitled to bring a claim for damages for mental harm injury.
An application for common law damages was lodged on 8 February 2023.
The insurer accepted liability.
An independent examiner, Dr Anand, psychiatrist, reported to the insurer on 20 March 2023.
Dr Anand also diagnosed a major depressive disorder.
In this first PCR, Ms Sainsbury told me that since the accident, she had been absent from her work as a nursing assistant, on average two days a week, because of depression.
Ms Sainsbury is on psychotropic medication.
There had been no mental health plan.
At the preliminary conference (PC), I informed Ms Gazdag that at that stage, I was not satisfied that I should approve the settlement as just and equitable.
I directed that the insurer make enquiries with Ms Sainsbury’s employer to substantiate or otherwise the periods of absence.
Enquiries were made by the insurer with Ms Sainsbury’s employer and was provided copies of payslips and as a result of those enquiries, it has revised (upwards) its offer, which
Ms Sainsbury has accepted.The parties have conditionally, on approval, signed a revised Agreement Of Release (AOR), the essential terms of which are that the insurer will pay Ms Sainsbury $95,000 by way of settlement of her common law claim, which reduces to $89,962.34 after deduction of $5,037.66 pursuant to s 3.40(1)(b) of the Motor Accident Injuries Act 2017 (MAI Act) and noting weekly benefits already paid to Ms Sainsbury.
At a second PC on 21 February 2025 at 10.00am, Ms Sainsbury asked me to approve the settlement.
CONSIDERATION AND REASONS
The legislation and legal principles
The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020.
As a member of the Motor Accidents Division of the Commission, cl 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14D empowers me to determine those proceedings.
Because of the date of the accident cl 14D(3)(b) of the Personal Injury Commission Regulation 2020 provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
In making my decision I have considered the following legislation and guidelines:
(a) the Personal Injury Commission Act 2020;
(b) the Personal Injury Commission Regulation 2020;
(c) the MAI Act, and
(d) the Guidelines.
Section 6.23 of the MAI Act states:
“6.23 Restrictions on settlement of claim for damages
i.A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
ii.A claim for damages cannot be settled unless –
(a)the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b)the proposed settlement is approved by the Commission.
iii.The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Clause 7.37 of the Guidelines states:
“Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act;
(b) the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement;
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
THE EVIDENCE
Police report of 14 October 2021
I note the crash summary as set out in the police report of 14 October 2021:
“About 11.24am on 4/10/21, vehicle CW96ZJ was being driven in a northerly direction on Pindimar Rd, Pindimar at a speed believed to be in excess of the 100kph speed limit. The vehicle rounded a sweeping left hand bend, crossing to the incorrect side of the road and then leaving the road off the eastern shoulder. At that time, vehicle CQ90KM was stopped on the shoulder and in the path of CW96ZJ. A collision occurred and the driver of CQ90KM was killed as a result. The driver of CW96ZJ was transported to John Hunter Hospital for treatment.”
Certificate of Medical Assessor Sidorov of 8 July 2024
I briefly summarise the Certificate of Medical Assessor Sidorov by way of reference to paragraph numbers:
[1]There is a dispute between Ms Sainsbury and insurer regarding the degree of permanent impairment under Schedule 2, s 2(a) of the Act.
[2]The following injuries were referred by the Commission for assessment: psychological trauma and grievance.
[3]The insurer submits that the injuries suffered in the Accident resulted in a permanent impairment of no greater than 10%.
[4]Ms Sainsbury submits that the injuries resulted in a permanent impairment greater than 10%.
[8]The Medical Assessor discusses Ms Sainsbury’s pre-accident history, including a past depressive episode at the age of 18 and family history of mental health conditions.
[9]The Medical Assessor outlines the history of the Accident, detailing the sudden death of Ms Sainsbury’s mother due to a collision caused by an intoxicated, speeding driver.
[10]The Medical Assessor reviews Ms Sainsbury’s symptoms following the accident, being significant distress, depression, suicidal ideation, and impact on daily functioning.
[12]Ms Sainsbury continues to experience depressive symptoms but has returned to work.
[13]Ms Sainsbury attends ongoing psychological treatment and uses 30mg Mirtazapine daily.
[14]The Medical Assessor describes the mental state examination findings, indicating no psychotic symptoms but a depressed affect.
[15]The Medical Assessor assesses Ms Sainsbury’s current functioning, noting social withdrawal, reduced motivation, and some difficulty concentrating at work.
[17]The Medical Assessor lists documentation relied upon during the Assessment, including medical reports of Dr Anand diagnosing Major Depressive Disorder and assessing whole person impairment at 6%.
[18]The Medical Assessor confirms the diagnosis of Major Depressive Disorder based on Ms Sainsbury’s presentation and medical documentation.
[19]The Medical Assessor attributes Ms Sainsbury’s depressive disorder to the unexpected death of her mother caused by the Accident.
[20]The Medical Assessor determines that Major Depressive Disorder was caused by the Accident.
[21]The Medical Assessor considers Ms Sainsbury’s impairment to be permanent due to her symptoms becoming chronic and pervasive. Her symptoms are unlikely to change substantially, and by more than 3% in the next year, with or without medical treatment.
[22]
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Guidelines.[23]While the Medical Assessor notes a physical workplace injury, he Assessor finds no evidence of pre-existing or subsequent impairment impacting the current condition.
[24]The Medical Assessor apportions 100% of the whole person impairment to the motor accident.
[25]The Medical Assessor acknowledges mild treatment benefits and adjusts the impairment rating by 1% accordingly.
Report of Dr Anand, psychiatrist, of 10 March 2023
I briefly summarise the report of Dr Anand dated 10 March 2023:
“HISTORY of INJURY
1. Ms Sainsbury is a 47-year-old woman who separated from her ex-partner four years ago and she lives with her father and two children aged 21 and 25.
2. She is currently working as an AIN at Hawkesbury Living on a permanent part-time basis doing around 37.5 hours per week and has been with this organisation for seven years. She stated that she is currently on Workcover as she hurt her knee at work and had to undergo a knee replacement. She slipped and fell on a wet floor at work in October 2022.
3. Ms Sainsbury denied any formal psychiatric history prior to October 2021.
4. She stated that her mother was killed about 18 months ago in October 2021 when her mother Jacqueline Sainsbury was parked on the shoulder on Vindiner Road when she was struck head-on by another vehicle. She stated that she was killed by a drunk driver who was also under the influence of drugs.
5. Since then, Ms. Sainsbury has struggled with depressed mood, emotional instability, mood swings, poor concentration, weight gain, anger issues (particularly due to the ongoing court case), and occasional suicidal ideation. She reports poor sleep, low energy, and motivation, and primarily stays in her room when not at work. She avoids driving long distances and has withdrawn socially.
MENTAL STATE EXAMINATION
6. On mental state, she presented as much older than her stated age. She was moderately overweight. She had extensive tattoos on both arms and she also had a nose piercing. She was casually dressed and appeared to be maintaining a reasonable level of hygiene. She appeared to be a bit despondent but nevertheless she was cooperative and sat through the entire review. Her affect was quite broad with maintained reactivity. There was no formal thought disorder. Speech was normal in rate, tone, and volume. She was goal directed and there was no formal thought disorder. There were no suicidal ideations elicited. There were no psychotic phenomena. Her insight and judgement remained reasonable and cognitively she appeared to be quite intact.
7. She is currently taking antihypertensive medication and has a history of hypertension and a right knee replacement. There is a family history of Major Depressive Disorder and anxiety. She denied any forensic history.
8. Ms. Sainsbury was born in Sydney and is one of four children. She described having a good childhood and completed Year 8 before undertaking TAFE courses, eventually becoming an AIN, a role she has held for 21 years. She drinks alcohol socially, is a smoker, and denies any illicit drug use.
9. She stated that in a typical week she generally likes to stay in her room when she is not working. Prior to her knee replacement she was working from 6:30 to 2:30 daily and her duties including showering the residents, dressing them, giving them their feeds.
10. She can self-care fairly adequately. She stated that she showers daily. She is tidy and maintains a good level of hygiene. She was struggling with chores. She stated that “before my mother passed, | would do the lawns, I would clean the house and do extensive chores but now I mainly stay in my room”. She struggles with her chores. She stated that “I used to cook for everybody but now my son does it”.
11. Prior to her mother passing, she would walk for a half hour before work every day and go for bush walks on the weekend. She does not do that anymore.
12. She was never big into reading, but she does listen to music and meditate. She stated that she used to do a lot of art and drawing but she has not been doing that either.
13. She mainly interacts with her family during mealtimes. She talks to her sisters on the phone regularly.
14. She stated that she has distanced herself from most of her friends. She stated that she has one friend in Queensland with whom she keeps in regular touch. She denied doing any travel. She stated that she used to do a lot of kickboxing but does not do that anymore. She stated that her relationship with her father and her children is quite good.
15. Before her mother’s death, she was very social and active, enjoying bushwalking and other activities. Her GP is Dr. Hannah Eskander, and she has been attending regular psychological follow-ups.
SUMMARY
16. Ms Sainsbury meets the criteria for Major Depressive Disorder. She presents with depressed mood, poor concentration, occasional suicidal ideation (without intent or plan), chronic poor sleep, anhedonia, reclusiveness, and social withdrawal. The DSM 5 diagnostic criteria for Major Depressive Disorder are satisfied.
OPINION
17. In respect to the questions, you ask
2.Outline of all treatment received following the accident.
•From a medication perspective, she is currently taking an anti-hypertensive medication.
•Her GP is Dr Hannah Eskander.
•She has been following up with the psychologist on a regular basis.
3.Have there been any periods of hospitalisation and/or surgical procedures carried out following the accident?
•Nil.
6.What current symptoms is the customer reporting? Are there any associated disabilities which would be due to these symptoms?
•Ms Sainsbury stated that since then she has continued to struggle with depressed mood, mood swings, emotional episodes, emotionalism (tearful episodes), having multiple breakdowns, disordered appetite having put on weight, poor concentration and tending to zone out, anger issues (especially as the court case continues to go on). She stated that she has been struggling to cope and she occasionally also has suicidal ideations.
•Her sleep was quite poor. She stated that when she is not working, she mainly stays in her room. She does not like driving too far. Her energy levels, concentration levels and motivation were all described as being quite low. She also indulged social withdrawal.
7.Your clinical and functional findings on examination.
•On mental state, she presented as much older than her stated age. She was moderately overweight. She had extensive tattoos on both arms and she also had a nose piercing. She was casually dressed and appeared to be maintaining a reasonable level of hygiene. She appeared to be a bit despondent but nevertheless she was cooperative and sat through the entire review. Her affect was quite broad with maintained reactivity. There was no formal thought disorder. Speech was normal in rate, tone, and volume. She was goal directed and there was no formal thought disorder. There were no suicidal ideations elicited. There were no psychotic phenomena. Her insight and judgement remained reasonable and cognitively she appeared to be quite intact.
8.Provide an assessment of the available medical reports.
I have reviewed the following documents:
•Application for personal injury benefits 09/10/2021
•Certificate of fitness 12/10/2021
•Certificate of fitness 04/02/2021
•referral to psychologist 04/02/2022
•Certificate of fitness 03/11/2021
•Certificate of fitness 27/10/2021
•GP clinical notes 27/10/2021
•Allied health recovery request
The view noted in these documents is consistent with my diagnosis.
9.Is the customers current condition consistent with the alleged injuries and disabilities?
•Yes.
10.Your diagnosis in relation to the injuries and disabilities sustained in the accident.
•In my opinion, Ms Sainsbury meets the criteria for Major Depressive Disorder.
•I have described the presence of depressed mood, poor concentration, suicidal ideations with no intent or plan, chronically poor sleep, anhedonia, reclusiveness, and social withdrawal. The DSM 5 diagnostic criteria for Major Depressive Disorder are satisfied.
11.In your opinion have the claimant’s injuries stabilised to be considered sufficiently recovered? For those injuries that you believe have not yet stabilised, please provide an approximate timeframe for stabilisation, if possible.
•Yes. In my opinion, her injuries have stabilised.
12.Your opinion as to the reasonableness and necessity of treatment received following the accident.
•The treatment provided was reasonable and necessary.
13.Your opinion as to the reasonableness and necessity of future treatment and your comments as to duration and costs of any such treatment.
•Cognitive Behavioural Therapy (CBT) approach in conjunction with supportive counselling, coping skills training, behavioural activation and mindfulness is considered as the most appropriate approach for treating her current presentation. Her psychologist could also consider using strategies such as mindfulness, relaxation, and deep breathing to help control her anxious thoughts and improving her mood. Use of positive psychology and solution-focused psychology to reduce and manage the stress levels and decrease negative ruminations. The psychologist could also help her with her sleep hygiene and do further cognitive behavioural therapy techniques include visualisation exercises.
•CBT will help to attain greater wellbeing and better quality of life. The major aim is to increase the level of understanding and to develop skills and strategies to manage their symptoms. Primarily the focus is to provide stabilisation and safety rather than traumatic memory processing.
•She needs ongoing monthly sessions with her psychologist for another 8-10 sessions.
14.In your opinion, are the alleged injuries and disabilities the direct result of this motor vehicle accident or are they a result of a prior or subsequent injury or disability, a pre-existing condition, or some other reason.
•In my opinion, the alleged injuries, and disabilities the direct result of the motor vehicle accident, I base this opinion, noting the trajectory of her psychological injury and its impact on her psychosocial functioning.
15.Where applicable, please provide your opinion of the customer’s ability to resume their pre-accident home duties.
•She has been struggling with chores due to reasons related to her mental health.
•She stated that in a typical week she generally likes to stay in her room when she is not working.
•She can self-care adequately. She stated that she showers daily. She is tidy and maintains a good level of hygiene. She was struggling with chores. She stated that “before my mother passed, I would do the lawns, I would clean the house and do extensive chores but now I mainly stay in my room”. She struggles with her chores. She stated that “I used to cook for everybody but now my son does it”.
•Prior to her mother passing, she would walk for a half hour before work every day and go for bush walks on the weekend. She does not do that anymore.
•She was never big into reading, but she does listen to music and meditate. She stated that she used to do a lot of art and drawing but she has not been doing that either. She mainly interacts with her family during mealtimes. She talks to her sisters on the phone regularly.
•She stated that she has distanced herself from most of her friends. She stated that she has one friend in Queensland with whom she keeps in regular touch. She denied doing any travel. She stated that she used to do a lot of kickboxing but does not do that anymore. She stated that her relationship with her father and her children is quite good.
16.Where applicable, for what period, if any, would they have been unable to undertake their pre-accident home duties? To what extent was this inability, if any, due to the accident?
•Ms Sainsbury has been unable to undertake her pre-accident home duties since the accident. Her inability is predominantly due the accident.
17.If the client is still unable to resume pre-accident home duties/domestic assistance, please comment on the client’s ability to return to home duties/domestic assistance and the extent to which this is due to the accident.
•Ms Sainsbury has been unable to undertake her pre-accident home duties since the accident. Her inability is predominantly due the accident.
18.Your assessment of whole-person impairment in accordance with the AMA ‘Guide to the Evaluation of Permanent Impairment’ (4th Edition) and the Motor Accident Guidelines (effective from 1st December 2017).
PIRS Category
Class
Reason for Decision
Self care and personal hygiene
2
She can self-care adequately. She stated that she showers daily. She is tidy and maintains a good level of hygiene. She was struggling with chores. She stated that “before my mother passed, I would do the lawns, I would clean the house and do extensive chores but now I mainly stay in my room”. She struggles with her chores. She stated that “I used to cook for everybody but now my son does it”
Social and recreational activities
3
She stated that when she is not working, she mainly stays in her room. From a pre-morbid perspective, she stated that she used to do a lot of bushwalking. She was very social and active. Prior to her mother passing, she would walk for a half hour before work every day and go for bush walks on the weekend. She does not do that anymore. She stated that she used to do a lot of art and drawing but she has not been doing that either. She stated that she has one friend in Queensland with whom she keeps in regular touch. She stated that she used to do a lot of kickboxing but does not do that anymore
Travel
2
She can drive around in local areas with some apprehension. She does not like driving too far. She denied doing any travel.
Social Functioning
2
She mainly interacts with her family during mealtimes. She talks to her sisters on the phone regularly. She stated that she has distanced herself from most of her friends. She stated that her relationship with her father and her children is quite good.
Concentration, persistence and pace
2
She was never big into reading, but she does listen to music and meditate. She did advise of difficulties with concentration. She is working as an AIN on full time basis and in my opinion, her concentration is intact. She has been able to undertake a role of an AIN and this demonstrate a relatively intact cognitive profile. On mental state, there were no issues with concentration identified.
Adapdation
1
Ms Sainsbury is currently working as an AIN at Hawkesbury Living on a permanent part-time basis doing around 37.5 hours per week and has been with this organisation for seven years.
19.Your opinion of the customer’s ability to resume their pre-accident employment.
•Ms Sainsbury is a 47-year-old woman who separated from her ex-partner four years ago and she lives with her father and two children aged 21 and 25.
•Ms Sainsbury is currently working as an AIN at Hawkesbury Living on a permanent part-time basis doing around 37.5 hours per week and has been with this organisation for seven years. She stated that she is currently on Workcover as she hurt her knee at work and had to undergo a knee replacement. She slipped and fell on a wet floor at work in October 2022.
20.For what period, if any, would the customer have been unable to undertake their Preaccident employment? To what extent was this inability, if any, due to the accident?
•Not applicable. Ms Sainsbury is currently working as an AIN at Hawkesbury Living on a permanent part-time basis doing around 37.5 hours per week and has been with this organisation for seven years. She stated that she is currently on Workcover as she hurt her knee at work and had to undergo a knee replacement. She slipped and fell on a wet floor at work in October 2022.
21.For what period, if any, would the customer have been required to undertake suitable duties and/or hours? To what extent was this need, if any, due to the accident?
•Not applicable. Ms Sainsbury is currently working as an AIN at Hawkesbury Living on a permanent part-time basis doing around 37.5 hours per week and has been with this organisation for seven years. She stated that she is currently on Workcover as she hurt her knee at work and had to undergo a knee replacement. She slipped and fell on a wet floor at work in October 2022.
22.If the customer is still unable to resume pre-accident employment, please comment on the customer’s ability to return-to-work on suitable duties/hours, or in alternative employment.
•Not applicable. Ms Sainsbury is currently working as an AIN at Hawkesbury Living on a permanent part-time basis doing around 37.5 hours per week and has been with this organisation for seven years. She stated that she is currently on Workcover as she hurt her knee at work and had to undergo a knee replacement. She slipped and fell on a wet floor at work in October 2022.”
Insurer’s submissions of 5 September 2024
I refer to the insurer’s submissions of 5 September 2024 by way of reference to paragraph numbers:
Background
1.1 The claimant, currently aged 49 years of age, brings a claim for mental harm following a fatal motor accident involving her late mother,
Ms Jacqueline Marcia Sainsbury, which occurred on 4 October 2021.1.2 The circumstances of the accident are outlined in the attached Police Report. (A3)
1.3 Whilst Ms Sainsbury did not witness the accident, as the daughter of the deceased, she is entitled to bring a Damages claim for mental harm injury.
1.4 An application for Common Law Damages was lodged and on 8 February 2023 AAMI accepted liability for the claim. (A4)
Injuries
2.1 As a result of the subject accident, the claimant alleges the following injuries: Major Depressive Disorder
2.2 Following the accident, the claimant was certified as unfit for work up until
3 November 2021 (A5 – A7)2.3 The claimant returned to work after 3 November 2021 and worked up until 12 April 2022, at which time she injured her knee at work and ceased work, eventually undergoing a knee replacement.
2.4 The Insured arranged for the claimant to be examined by Dr Anand, psychiatrist, on 3 March 2023. In his report dated 10 March 2023 (A9 & A10) Dr Anand noted that the claimant was not working at the time of his assessment due to her work related knee injury. The claimant recounted the motor accident circumstances and the impact it has had on her psychologically, including social withdrawal, being less active, as well as depressed moods and tearfulness. Dr Anand diagnosed the claimant as having a Major Depressive Disorder and assessed a 6% WPI.
2.5 The claimant was further assessed by independent Commission’s Medical Assessor, Assessor Sidorov on 25 June 2024. In his report dated 8 July 2024 (A11) Assessor Sidorov diagnosed the claimant with Major Depressive Disorder and assessed an 8% Whole Person Impairment. The claimant reported that following learning of the accident and the passing of her mother, she was, understandably, very upset and distraught experiencing various psychological symptoms at different stages. As a result of the motor accident, the claimant reported having three months off work but did return to normal hours and duties at work. The claimant reported that she was commenced on anti-depressant medication which had resulted in some improvement of her mood. As at the day of assessment, the claimant reported she continued to experience depressive symptoms, lacked motivation for housework and cooking, and was less socially active than before but remained working in her pre-injury duties/hours at work. Whilst the claimant reported she was generally able to perform her work duties, at times, she found it difficult, experiencing lapses in concentration and finding motivation to attend work. The claimant reported, as at the day of assessment, she was still ingesting anti-depressant medication and undergoing monthly psychology sessions.
2.6 The claimant has been advised by the Insurer that any further treatment and/or care required by her, will continue to be provided (on the basis it is reasonable and necessary) irrespective of settlement of her Damages claim.
NON-ECONOMIC LOSS
3.1 To be entitled to damages for NEL, the level of WPI assessed must exceed 10%.
3.2 The claimant has been assessed on behalf of the Insurer, by Dr Anand, physiatrist, who assessed a 6% WPI. (A9 & A10)
3.3 The claimant was also assessed at PIC by Medical Assessor Sidorov (A11), who diagnosed the claimant with a Major Depressive Disorder and assessed an 8% WPI.
3.4 The claimant is not currently entitled to damages for non-economic loss.
ECONOMIC LOSS
3.5 At the time of the claimant’s mother’s motor accident, the claimant was 46 years of age and was working 37.5 hours per week as an Assistant in Nursing for Hawkesbury Living (nursing home).
3.6 Following the accident, the claimant was certified unfit for work from accident date until 3 November 2021, at which time her GP, Dr Eskander, certified her as fit for Pre-Injury Duties (A5 – A7).
3.7 Payslips produced by the claimant, that pre-date the accident, (A12) demonstrate for the period 28 July 2021 to 5 October 2021, the claimant earnt on average, $750 net per week.
3.8 The Insurer allows the claimant 4 weeks of wages from 4 October 2021 until 3 November 2021, that is, $3,000.
3.9 Although the medical evidence indicates the claimant had no further time off work as a result of her psychological injury sustained, the Insurer has allowed for one day off work, for each 4 weeks that has elapsed since the claimant was certified as fit for pre-injury duties. This is approximately $3,320.
3.10 On top of this, the Insurer allows $654 being the income tax paid on behalf of the claimant (Fox v Wood). (A14)
3.11 As well, the Insurer makes an allowance for Superannuation at 11%, totalling $695.20.
FUTURE ECONOMIC LOSS
3.12 The claimant is currently 49 years of age and has a further work life expectancy of 18 years (multiplier 625).
3.13 When assessed by Medical Assessor Sidorov in June 2024, the claimant reported to Medical Assessor Sidorov as follows:
“she worked for 37.5 hours per week as an assistant in nursing. This is her pre-injury duties and hours. She stated that she is generally able to perform her work duties, but, at times, finds it difficult as she has lapses in concentration. At times, she also finds it difficult to motivate herself to work.”
3.14 Notwithstanding the fact the claimant has returned to work in her pre-accident capacity, the Insurer accepts the claimant may from time to time need to take a day off work here and there on account of ongoing psychological symptoms, and in that regard has allowed a loss of approximately $100 net per week, for the next 18 years. After the necessary calculations, this totals $53,125.
3.15 On top of this amount the Insurer has calculated Superannuation at $6,906.25. $60,031.25 but rounded to $60,330.80.
Settlement
4.1 On 8 August 2024 the Insurer offered to settle the damages claim for $68,000.00 (A15).
4.2 The insurer’s offer was verbally accepted by the claimant on 30 August 2024.
4.3 A Deed was signed by the claimant on 2 September 2024 for settlement of her claim in the amount of $68,000 (A16). This Deed was received by the Insurer on 4 September 2024.
4.4 Pursuant to s 3.40(1)(b) of the MAI Act and noting weekly benefits already paid to the claimant in the amount of $5,037.66 (A14), if this settlement sum is approved, the claimant will receive the balance of $62,962.347 in the hand.
4.5 The claimant has advised she has not been in receipt of any Centrelink benefits.
Recommendation
5.1 This matter is before the Commission for approval of the proposed settlement sum of $68,000 pursuant to s6.23 of the MAIA.
5.2 It is GIO’s recommendation that the proposed settlement fissure is appropriate and complies with the requirements of Clause 7.402.2 of the Guidelines, in that it is:
“just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities impairments and losses sustained by the accident”
5.3 Accordingly, GIO recommends approval of the proposed settlement figure of $68,000 being for past and future economic loss.
Insurer’s further submissions of 19 February 2025
I refer to the insurer’s submissions of 19 February 2025 by way of reference to paragraph numbers:
1. “The Insurer refers to prior submissions in this matter dated 5 September 2024.
2. Since that time, the Insurer has come into receipt of further evidence including;
i.Particulars off the claimant’s employer, Hawkesbury Living Nursing Home pertaining to sick leave records;
ii.Various payslips provided by the claimant, documenting sick leave, unpaid sick leave and holiday leave alleged to be related to her mental health following her late mother’s motor accident;
iii.Clinical notes of North Richmond Family Practice
3. In light of the recently received information, the Insurer and the claimant have entered into further negotiations and have agreed to settle the matter in the amount of $95,000.00.
DAMAGES NON-ECONOMIC LOSS
4.1. As per prior submissions, the claimant is not entitled to damages for non-economic loss.
PAST ECONOMIC LOSS
4.2. At the time of the claimant’s mother’s motor accident, the claimant was 46 years of age and was working 37.5 hours per week as an Assistant in Nursing for Hawkesbury Living (nursing home).
4.3. Payslips produced by the claimant, that pre-date the accident, demonstrate for the period 28 July 2021 to 5 October 2021, the claimant earnt on average, $750 net per week,1 which divided by 5 days in a week, totals $150 net per day.
4.4. Previously, the Insurer allowed the claimant the sum of $7,669.20 inclusive of Superannuation and Fox v Wood in respect of past economic loss, in the absence of any evidence of time off work since the accident.
4.5. Since the last set of Insurer’s submissions, both the claimant and her employer have produced payroll records that pertain to the time off work the claimant has had, said to be related to her resultant mental health.
4.6. The claimant’s employer, by way of email, has produced the table below, charting the sick leave taken by the claimant following her mother’s motor accident on 4 October 2021.
4.7. In addition, the claimant has produced payslips documenting her leave post motor accident (which overlap the above table).
4.8. In respect of the period from the date of accident, (4 October 2021) until 12 April 2022 (when the claimant injured her right ankle in a work accident) the payroll records reflect a total of 13 days off work.
4.9. The claimant has also produced several of her own payslips which document the time she has had off work, said to be related to her mental health, following her mother’s motor accident. (attached to this bundle)
4.10. In summary, those payslips reflect the following periods off work;
2025 Hours
15.1.25 – 21.1.25
7.5
2024
4.12.24 – 10.12.24
11.75
20.11.24 – 26.11.24
7.5
13.11.24 – 19.11.24
37.5
6.11.24 – 12.11.24
7.5
30.10.24 – 5.11.24
7.5
17.7.24 – 23.7.24
7.5
3.7.24 – 9.7.24
15
26.6.24 – 2.7.24
15
19.6.24 – 25.6.24
37.5
15.5.24 – 21.5.24
7.5
1.5.24 – 7.5.24
15
10.4.24 – 16.4.24
7.5
28.2.24 – 5.3.24
7.5
31.1.24 – 6.2.24
22.5
17.1.24 - 23.1.24
15
10.1.24 – 16.1.24
20.25
2023
20.12.23 – 26.12.23
7.5
13.12.23 – 19.12.23
7
6.12.23 – 12.12.23
15
15 29.11.23 – 5.12.23
7.5
22.11.23 – 28.11.23
7.5
8.11.23 – 14.11.23
37.5
1.11.23 – 7.11.23
37.5
11.10.23 – 17.10.23
7.5
6.9.23 – 12.9.23
15
16.8.23 – 22.8.23
22.5
9.8.23 – 15.8.23
22.5
19.7.23 – 25.7.23
7.5
21.6.23 – 27.6.23
3.5
7.6.23 – 13.6.23
7.5
24.5.23 – 30.5.23
7.5
Total Hours 462.50
4.11. At 7.5 hours per day, the Insurer has converted 462.50 hours into 62 days3 but has allowed 63 days.
4.12. That is, since her mother’s motor accident, the claimant alleges a total of 764 days off work on account of her mental health.
4.13. The Insurer thus allows the claimant a total of 76 days off work since 4 October 2021, at $150 net per day, which totals $11,400.00.
4.14. The Insurer makes an allowance for Superannuation at 11%, totalling $1,254.00.6
4.15. On top of this, the Insurer allows $654.00 being the income tax paid on behalf of the claimant (Fox v Wood). $13,308.00 but say $14,000.00
FUTURE ECONOMIC LOSS
4.16. The Insurer refers to its prior submissions addressing future economic loss.
4.17. In light of recently produced payroll records, and payslips showing the claimant’s time off work following her mother’s motor accident, the Insurer has increased its prior offer for future economic loss from $60,330.80 to $81,000.00.
4.18. This has been calculated on the basis of the claimant taking one (1) day off work, each week, for the next 15 years.
4.19. Mathematically, that is, $150 net per day x 15 yrs (555 multiplier) x 85% (15% vicissitudes) = $70,762.50 [SIC]
4.20. On top of this amount the Insurer has calculated Superannuation at $9,906.25. $80,669.25 but rounded to $81,000.00
SETTLEMENT
5.1. On 19 February 2025 the Insurer offered to settle the damages claim for $95,000.00.
5.2. A Deed was signed and returned by the claimant on 19 February 2025 for settlement of her claim in the amount of $95,000.00.
5.3. Pursuant to s3.40(1)(b) of the MAIA and noting weekly benefits already paid to the claimant in the amount of $5,037.66, if this settlement sum is approved, the claimant will receive the balance of $89,962.348 in the hand.
5.4. The claimant has advised she has not been in receipt of any Centrelink benefits.
RECOMMENDATION
6.1. This matter is before the Commission for approval of the proposed settlement sum of $95,000.00 pursuant to s6.23 of the MAIA.
6.2. It is GIO’s recommendation that the proposed settlement figure is appropriate and complies with the requirements of Clause 7.402.2 of the Guidelines, in that it is: “just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities impairments and losses sustained by the accident”.
6.3. Accordingly, GIO recommends approval of the proposed settlement figure of $95,000.00 being for Past and Future Economic loss.”
CONSIDERATION
I have been provided with details of the payslips and calculations, including the calculation for future economic loss (see page 4 of the submissions).
Medical Assessor Sidorov put Ms Sainsbury’s PIRS meeting class value of 2, with a WPI rating of 7%. In all but one area, being category 2 social and recreational activities, the impairment is considered mild at the time of the psychiatric examination on 25 June 2024.
At the time of the Accident, Ms Sainsbury was 46 years of age and was working 37.5 hours per week as an Assistant Nursing, earning on average $750 net per week.
Since her mother’s death, Ms Sainsbury has alleged the total of 76 days off work on account of her mental health, that is a period of in excess of three years.
As a matter of common sense, Ms Sainsbury has made a reasonably good recovery and it is to be expected that in accordance with the age, time heals, Ms Sainsbury should continue in time to make a full recovery.
CONCLUSION
I am satisfied that the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, the disabilities, the impairments and the losses sustained by Ms Sainsbury.
I am satisfied that Ms Sainsbury understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner but does not wish to do so.
I am satisfied that Ms Sainsbury understands the binding nature and effect of the proposed settlement and that she will be precluded from making a further claim for damages arising out of the motor accident but is entitled to ongoing treatment and care needs for life.Whilst the Insurer is only liable to pay statutory benefits, including treatment expenses for five years, thereafter the claim may be transferred to Lifetime Care and Support, who will be liable for ongoing reasonable treatment expenses.
Accordingly, under s 6.23(2)(b) of the MAI Act, I approve the settlement of Ms Sainsbury’s claim for damages in the total sum of $95,000.
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