AAI Limited t/as GIO v Phillips

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as GIO v Phillips [2024] NSWPIC 300
CLAIMANT:	Linda Jayne Phillips
INSURER:	AAI Limited t/as GIO
MEMBER:	Anthony Scarcella
DATE OF DECISION:	3 June 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999 (MAC Act); motor accident in 2009; liability wholly admitted; physical and psychological injuries; assessment of damages in circumstances where claimant had a long and complicated pre-accident medical history; disentangling the claimant’s pre-accident medical conditions from the motor accident related injuries; unreliable witnesses; parties agreed that there was no entitlement to non-economic loss damages; claim for past and future economic loss; claim for past and future treatment expenses; claim for past gratuitous care and domestic assistance; claim for future commercial care and domestic assistance; claim for damages for the loss of capacity to provide domestic services (section 15B of the Civil Liability Act 2002); issue as to the claimant’s entitlement to legal costs on the basis of a series of offers of settlement made by the insurer over the years preceding the assessment; Held – the claimant was awarded damages for past treatment and future treatment only; the claimant’s rejection of the offers of settlement made by the insurer were not unreasonable in the circumstances and her costs were not unreasonably incurred; the insurer is to pay the claimant’s legal costs and disbursements in accordance with sections 149 and 150 of the MAC Act and the Motor Accidents Compensation Regulation 2020 as agreed or assessed.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Part 4.4 of the Motor Accidents Compensation Act 1999, the Commission’s assessment is: 1. The amount of damages assessed in respect of this claim is $51,286.91. 2. The insurer is to pay the claimant’s legal costs and disbursements in accordance with ss 149 and 150 of the Motor Accidents Compensation Act 1999 and the Motor Accidents Compensation Regulation 2020 as agreed or assessed. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

BACKGROUND

This dispute relates to an application for a general assessment of damages (the Application) under s 94 of the Motor Accidents Compensation Act 1999 (MAC Act) in respect of a motor accident that occurred on 27 May 2009 (the motor accident).
The Application was lodged with the Personal Injury Commission (Commission) by AAI Limited t/as GIO (GIO) on 9 December 2022 for assessment by a Member of the Commission.
The claimant, Ms Linda Jayne Phillips, is a 53-year-old woman, who alleges that she suffered injuries in the motor accident.
Ms Phillips made a claim for damages for the personal injuries she sustained in the motor accident against the compulsory third-party insurer of the vehicle at fault, GIO.
GIO wholly admitted liability (including an admission of breach of duty of care) but disputed the extent of Ms Phillip’s motor accident related injuries and incapacity. There were no allegations of contributory negligence on the part of Ms Phillips.
At a preliminary conference on 29 May 2023, the matter was set down for an audio-visual assessment conference on 4 September 2023. Mr Joseph Hallion of counsel appeared for Ms Phillips, instructed by Ms Thao McKay, solicitor. Ms Christine Allan of counsel appeared for GIO, instructed by Mr Bryce Crampton, solicitor. The assessment conference could not be completed on 4 September 2023 and was stood over part heard to 14 September 2023. The appearances on 14 September 2023 were the same as those on 4 September 2023, except that Ms Kathryn Burrows attended in place of Mr Crampton.
The following issues were required to be determined by me:
(a)    the nature and extent of Ms Phillips’ injuries and incapacity;
(b)    Ms Phillips’ entitlement to damages for past loss of earnings or past loss of earning capacity;
(c)    Ms Phillips’ entitlement to damages for future loss of earnings or future loss of earning capacity;
(d)    Ms Phillips’ entitlement to damages for past treatment expenses;
(e)    Ms Phillips’ entitlement to damages for future treatment expenses;
(f)    Ms Phillips’ entitlement to damages for past gratuitous domestic assistance under s 141B of the MAC Act;
(g)    Ms Phillips’ entitlement to damages for future gratuitous domestic assistance under s 141B of the MAC Act, and
(h) Ms Phillips’ entitlement to damages for loss of capacity to provide domestic services under s 15B of the Civil Liability Act 2002 (CLA).
The parties agreed that:
(a)    Ms Phillips has no entitlement to damages for non-economic loss;
(b)    payments made by GIO under s 83 of the MAC Act amounted to $26,218.41, and
(c)    GIO made advance payments to Ms Phillips totalling $23,000.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and were considered in making this determination:
(a)    Ms Phillips’ final bundle of supporting documents to her reply to the Application lodged with the Commission on 9 August 2023 (Ms Phillips’ documents);
(b)    GIO’s final bundle of supporting documents to the Application lodged with the Commission on 3 September 2023 (GIO’s documents);
(c)    Ms Phillips’ statement dated 21 May 2021, being part of the documents lodged with the Commission identified as R2 at pages 53-69;
(d)    the last page of Ms Susan Younie’s signed statement dated 7 July 2023 lodged with the Commission on 19 September 2023;
(e)    GIO’s updated list of payments lodged with the Commission on 11 September 2023;
(f)    GIO’s schedule of past treatment expenses lodged with the Commission on 28 September 2023, and
(g)    Ms Phillips’ schedule of past treatment expenses lodged with the Commission on 3 October 2023.

Oral evidence

Oral evidence was adduced from the following at the assessment conference:
(a)    Ms Linda Jayne Phillips;
(b)    Mr Connor Reece Phillips, and
(c)    Ms Susan Younie.

SUBMISSIONS

Ms Phillips, through her lawyers, provided written submissions on the substantive issues dated 19 July 2023,[1] supplemented by oral submissions at the assessment conference.
[1] Ms Phillips’ documents at pages 4-46.
GIO, through its lawyers, provided written submissions on the substantive issues dated 7 December 2022,[2] supplemented by oral submissions at the assessment conference.
[2] GIO’s documents at pages 4-17.
I will refer to the parties’ submissions following an analysis of the evidence.

THE NATURE AND EXTENT OF THE INJURIES AND INCAPACITY

Ms Linda Jayne Phillips’ evidence

In evidence, there were three written statements by Ms Phillips dated 21 May 2021, 24 May 2023 and 8 August 2023. Ms Phillips’ statement dated 24 May 2023, generally, repeated the information contained in her statement dated 21 May 2021 but in some more detail. Ms Phillips also gave oral evidence at the assessment conference.
Ms Phillips stated that her parents are still alive and that she was the elder of two children. At the age of about five years, life became more complicated and difficult. Her mother suffered from a mental illness. She was always unwell and physically aggressive. Her father was often absent.
Ms Phillips stated that, after her parents separated, she continued to live with her mother. She and her mother had a fractious and combatant relationship, which culminated in her mother having Ms Phillips admitted to a psychiatric unit for two terms when she was 14 years of age on the pretext that she was non-compliant in taking her insulin and posed a risk to herself. Ms Phillips was discharged home and she resumed her schooling in year 10. However, her mother threw her out of home and as a result, Ms Phillips went to live with a friend whilst she completed year 10. She attained her School Certificate in 1986.
Ms Phillips stated that, after leaving school, she worked as a pharmacy assistant for two years. In 1988, she commenced work for Telstra as a sales representative until 1995 when she ceased paid employment to be a full-time homemaker and carer to her children.
Ms Phillips stated that she married in 1995 and that she and her husband moved to the Central Coast. There were three children of the marriage, namely, Connor (born in 1997) and the twins, Blake and Chloe (born in 1999). After the birth of the twins, she developed postnatal depression which was treated with an antidepressant prescribed by her general practitioner. Thereafter, she experienced recurrent episodes of depression over the years secondary to stress and chronic pain.
Ms Phillips stated that her marriage ended in 2001. She remained in the family home. The twins were 18 months of age at the time and she had no support. She was later provided with home care two days per week to assist with housework. She commenced receiving a Centrelink sole parent benefit and raised the three children on her own. She found the divorce, property settlement and custody arrangements very stressful.
Ms Phillips stated that she started another relationship that lasted about one year because her partner turned out to be physically abusive. She had to call the police to have him removed from the home. She has not been involved in any relationships since then.
Ms Phillips stated that she was transferred from a Centrelink sole parent benefit to a disability support pension in mid-2000. The disability support pension was granted on the basis of chronic pain in the right hip, sacroiliac joints and abdominal pain with the support of Dr Charmaine Bahr of the Prince of Wales Hospital pain clinic.
The Centrelink documents in evidence recorded that Ms Phillips commenced receiving a disability support pension on 18 January 2007.[3] In her oral evidence, Ms Phillips conceded that the latter date had to be correct.
[3] GIO's documents at page 5,527.
Ms Phillips stated that, prior to the motor accident, it was her intention to be a “stay-at-home mum”[4] and make children’s clothing as a side business. She made gym and dance clothing which she exchanged for free dance classes and kindy gym fees for her three children, who attended ballet, jazz and contemporary dance classes. She sewed whenever she could. Sometimes, she sewed at night after the children had gone to bed. She usually sewed for about an hour at a time with an hour’s rest in between.
[4] Ms Phillips' documents at page 117 at [3].
Ms Phillips described her medical history prior to the motor accident in the following terms:
“I have had a very complicated medical history however my pre-existing fragility never resulted in me being unable to function but made me particularly susceptible to injury and I suffered an exacerbation of the pre-existing conditions in addition to new and different injuries because of the MVA.”[5]
[5] Ms Phillips' documents at page 93 at [28].
Ms Phillips’ summarised her pre-accident medical conditions as follows:
(a)    abdominal, bladder and chest pains;
(b)    abdominal scar tissue and adhesions;
(c)    asthma;
(d)    benign familial nephritis;
(e)    bursitis of the right hip;
(f)    cardiac arrhythmia;
(g)    chronic pain;
(h)    degeneration of the lower back;
(i)    degenerative cartilage;
(j)    mild depression;
(k)    type I diabetes mellitus;
(l)    dystonic bladder;
(m)     diabetic neuropathy;
(n)    glomerular basement membrane renal disease;
(o)    heart murmur;
(p)    high cholesterol;
(q)    hypertension;
(r)    immunodeficiency disorder (IgG deficiency);
(s)    irritable bowel syndrome;
(t)    liver hemangiomas;
(u)    lumbar scoliosis;
(v)    migraines;
(w)   neuropathic nerve pain;
(x)    orthostatic hypotension;
(y)    asymptomatic osteoarthritis in both knees and hands;
(z)    osteopenia;
(aa)    ovarian cystic disease;
(bb)    chronic sinusitis, and
(cc)     sleep apnoea.
Ms Phillips also provided further details in respect of some of the medical conditions referred to above.[6]
[6] Ms Phillips' documents at pages 93-96 at [31]-[56].
In her oral evidence, on questioning by GIO’s counsel, Ms Phillips conceded that, contrary to the contents of her written statements, her left knee condition had not resolved following the arthroscopies performed by Dr Solomon in 2007.
Ms Phillips stated that, despite the pain and difficulties she experienced prior to the motor accident, she had a positive disposition about her management of the above-mentioned health conditions. She was doing well and she was able to manage her medical conditions and they did not impact on her daily life. She was very active and involved in her children’s lives and in her community. She managed her own self-care. She was able to care for her children. She performed most domestic duties herself. She socialised with other mothers. She had hobbies which included sewing, craftwork and she made clothing for pleasure. She took arts and craft classes. She worked part-time making costumes for her children’s dance school. She was able to drive long distances to Sydney and back for medical appointments. She often walked and swam in the ocean near her home.
However, in her oral evidence, on questioning by GIO’s counsel, Ms Phillips conceded that she was struggling to deal with everything in the 12 months leading up to the motor accident. Further, she agreed that she had contacted the Department of Community Services (DOCS), as it then was, in 2006 because she had difficulty caring for her children.
In her oral evidence, on questioning by GIO’s counsel, Ms Phillips initially denied wanting to relocate to Sydney to be close to her specialists at Prince of Wales Hospital as early as September 2008 and at other times before the motor accident. She later gave evidence that she did not think that she had thought of moving back to Sydney before the motor accident and conceded that she may have.
In her oral evidence, on questioning by GIO’s counsel and after having been taken to numerous entries in the clinical records of her treatment providers, Ms Phillips would not concede that she was not managing her medical conditions prior to the motor accident. Rather, she stated that she was managing them as best she could. However, she did concede that the medical conditions were definitely having an impact on her daily life, especially because she was on her own with two special needs children.
Ms Phillips stated that, at the time of the motor accident, she was living in a 41 square, two storey house on the Central Coast. She provided a description of the house.[7] At the time, she was provided with four hours of home care per week subsidised by the government. The home care cleaner vacuumed and mopped the floors; cleaned the bathrooms and the kitchen; changed the bedlinen; and did the spring cleaning annually. Ms Phillips cleaned the bathroom sinks, toilets, kitchen sink and kitchen bench. She also swept and mopped a small area of the floor. She did the laundry, hung it on the line, took it off the line and folded it. She ironed clothes. She undertook the weekly grocery shopping. She cooked meals. She hosed the outside windows. Following the motor accident she received an extra two hours of home care for 13 weeks to assist with the laundry and the shopping.
[7] Ms Phillips' documents at page 105 at [106].
Ms Phillips stated that, on 27 May 2009, she was a pillion passenger on the motorcycle of an acquaintance. It had started to rain and the rider of the motorcycle lost control and the back end of the motorcycle fishtailed. She was thrown from the motorcycle and fell heavily onto the road on her left side. She recalled being bounced down the roadway about 30 metres before she came to a stop. She was unable to get up. She experienced severe pain in her back and extensive grazes down the left side of her body, particularly, in the region of the left olecranon, the extensor surface of the left forearm, left wrist, left hand, left hip, both knees and the left ankle. She experienced increasing pain in the left shoulder. However, the main area of discomfort was in the lower part of her back. She was unable to get up off the roadway and she was unable to weight bear.
Ms Phillips stated that she was evacuated from the motor accident site by helicopter to John Hunter Hospital where she was admitted for two weeks.
Ms Phillips stated that she suffered the following injuries in the motor accident:
(a)    fractures involving the sacrum and coccyx;
(b)    prepatellar bursitis in the knees, the left worse than the right;
(c)    contusions to the left ankle;
(d)    injury to the left olecranon and left wrist;
(e)    development of adhesive capsulitis (frozen shoulder) in the left shoulder;
(f)    left hip fracture and cartilage damage to the labrum;
(g)    aggravation of degenerative changes at the L5/S1 level;
(h)    aggravation of pre-existing asymptomatic degenerative changes in the knees and,
(i)    aggravation of pre-existing sacroiliac joint pain as a result of the injury to the left hip impacting on the right hip.
Ms Phillips described the consequences of the motor accident in the following terms:
“The MVA was like the tipping point for me, and I toppled over and have never recovered not only from the injuries suffered in the MVA but the exacerbation to my pre-existing injuries which as a result of my reduced functioning and resilience, contributed to an overall deterioration in my functioning and level of independence and functioning I had pre MVA.
It was not until the injuries I suffered in the MVA did I descend into chronic and ongoing deterioration which prevented me from functioning and manage [sic] my comorbidities.”[8]
[8] Ms Phillips' documents at page 93 at [29]-[30].
On 10 June 2009, Ms Phillips completed a personal injury claim form in respect of the motor accident.[9] The application form set out the basic particulars of the motor accident and Ms Phillips described the accident as follows:
“Driving along a straight road. It was wet. Back of bike started to fishtail. Felt like driver almost got it back, then the bike went down. The driver and I were thrown from the bike. I tumbled & was thrown further down the road. I think the bike went into a tree.”[10]
[9] GIO's documents at pages 19-29.
[10] GIO's documents at page 21.
In the personal injury claim form, Ms Phillips described the injuries she received in the motor accident as follows:
“Fractured hip & coccyx. Cuts, grazes, bruising, swelling. Very sore left knee & foot. Elbow pain.”[11]
[11] GIO's documents at page 25.
In the personal injury claim form, Ms Phillips disclosed that prior to the motor accident she sustained a torn cartilage in her left knee on 10 April 2007 and underwent an arthroscopy. She also disclosed that she had ongoing bursitis in her right hip which was treated by nerve blocks at the Prince of Wales Hospital pain clinic.
In the personal injury claim form, Ms Phillips recorded that she was a disability pensioner and had not lost any income because of the motor accident.
In her written statement, Ms Phillips went on to state that her perception was that, since the motor accident, there had been a deterioration in both her mental and physical functioning.
Ms Phillips described in detail her ongoing pain, symptoms, difficulties, disabilities and restrictions as a result of the injuries she sustained in the motor accident,[12] which may be summarised as follows:
[12] Ms Phillips' documents at pages 101-107 at [76]-[117].
(a)    restricted movement in the left shoulder;
(b)    constant pain in the lower back at L4 and L5, aggravated by bending, standing, sitting and walking;
(c)    exacerbation of pre-accident sacroiliac joint pain;
(d)    pain in both hips, which affect her gait;
(e)    constant bilateral knee pain with instability, having fully recovered from pre-accident bilateral knee problems by the time of the motor accident;
(f)    aggravation of pre-accident depression resulting in an increase in pre-accident medication and new medication;
(g)    poor concentration;
(h)    fatigue;
(i)    feelings of uselessness;
(j)    difficulty using stairs or walking on uneven ground or paths with a gradient;
(k)    monthly headaches;
(l)    interrupted sleep as a result of anxiety and pain, particularly in the left shoulder and the left hip requiring medication to assist with sleeping;
(m)     difficulty walking, walking with a limp and using a walker when in severe pain;
(n)    self-conscious about using a walker;
(o)    inability to wear shoes with heels due to pain;
(p)    an increased risk of falls causing great anxiety;
(q)    inability to kneel;
(r)    difficulty squatting without support;
(s)    difficulty lifting 3kg or above in weight;
(t)    requirement to undergo regular bilateral hip nerve blocks, left shoulder nerve blocks, L4/L5 nerve blocks, sacroiliac joint nerve blocks and ketamine infusions;
(u)    restricted physical and mental ability to work;
(v)    restricted ability to perform household activities;
(w)   inability to maintain a garden;
(x)    difficulty driving due to pain, poor concentration, fatigue and anxiety resulting in the decision not to renew her driver’s licence;
(y)    inability to make dance and gym costumes;
(z)    restricted ability to perform craft work, and
(aa)    the need to downsize her residence in order to manage as a result of the ongoing pain, symptoms, difficulties, disabilities and restrictions referred to above.

Ms Phillips stated that, due to the motor accident exacerbating her pre-existing medical conditions, she struggled because of the extra difficulties and disabilities associated with the motor accident related injuries to her left shoulder, left elbow, left forearm, left wrist, left hand, left hip, left ankle and bilateral knees. The effect on her functioning impacted her ability to manage and care for her children and culminated when, in 2012, DOCS intervened and compulsorily removed the twins from her care. The removal followed a stressful period of problems the twins were experiencing and a breakdown of the relationship between them. Ms Phillips stated that she was physically unable to intervene and ensure the safety of Chloe from her twin, Blake.
Ms Phillips stated that the twins had been diagnosed with attention deficit hyperactivity disorder (ADHD). Further, Blake had been diagnosed with obsessive-compulsive disorder (OCD) and Asperger’s syndrome. Ms Phillips stated that such conditions were more challenging for her due to her reduced coping mechanism and due to the physical and mental injuries she suffered in the motor accident.
Ms Phillips stated that, following the motor accident, the twins initially stayed with her mother and Connor stayed with a friend. In her oral evidence, Ms Phillips stated that, once she was discharged from hospital following the motor accident, the three children came back home to live with her. She agreed that she did not have a particularly good relationship with her mother. Before the twins were born, her mother would visit every three to six months. After the twins were born, she would come around and stay overnight and help out every three months or so. She was never there very much.
Ms Phillips stated that, following the motor accident, she found that, in particular, she could not cope with the special needs of the twins despite the external assistance she was receiving and despite Connor’s assistance.
Ms Phillips stated that she sold the family home in May 2010 and moved back to Sydney where she rented a three-bedroom apartment. She sold the home for a number of reasons, including an inability to maintain the home, being closer to her medical care providers and Connor’s schooling. When she moved to Sydney, home care assistance was reduced from four hours per week to two hours per week because she was living in an apartment and she no longer received assistance with spring cleaning.
Ms Phillips stated that, in December 2011, Blake went to stay with her mother whilst she was hospitalised with a bowel obstruction.
Ms Phillips stated that, in October 2012, Chloe complained to her father and her school that Blake had hit her. She also complained that there was no food in Ms Phillips’ home. As Ms Phillips had become very withdrawn after the motor accident, she was not opening mail and consequently not responding to requests from DOCS about her children. This contributed to the removal of the twins from her care. Ms Phillips was reported to DOCS and even though DOCS found food in her house, it was decided that Chloe should go and live with Ms Phillips’ mother. Chloe hated living with her grandmother and kept running away and self-harming. Ms Phillips’ mother was unable to cope with Blake and he was then placed with a foster family. Chloe eventually went to a refuge for young people.
Ms Phillips stated that Blake was impulsive and volatile with little self-control, which placed Chloe at risk when Connor was not present. She could not effectively intervene. Further, Blake’s behaviour appeared to influence Chloe’s behaviour.
Ms Phillips stated that, from 2012, DOCS arranged for alternative living arrangements for Chloe in foster care as she was not permitted to stay with her. Chloe reported that she had been sexually assaulted twice whilst in foster care. She was diagnosed with ADHD, anxiety and likely post-traumatic stress disorder as a result of the sexual assaults. Blake fared better in foster care but similarly, was not allowed to stay with Ms Phillips.
In respect of the removal of the twins from her care by DOCS, Ms Phillips stated:
“The MVA’s impact on me may appear disproportionate to what else I was suffering with but was very real for me and had a devastating effect, the most significant being that the DOCS assessed my functioning post MVA as requiring intervention and the removal of my twins from my care.”[13]
[13] Ms Phillips' documents at page 112 at [147].
Ms Phillips stated that, throughout the period of her separation from the twins, Connor continued to reside with her. She became dependent on him. Nevertheless, Connor excelled in his studies at school and with dance during this time.
Ms Phillips stated that, in March 2013, she moved into a two-bedroom apartment in Sydney. She currently resides in a one-bedroom apartment in Sydney.
Ms Phillips stated that, in about February 2014, she commenced studying for a bachelor’s degree in nursing at the University of Notre Dame at Darlinghurst on a full-time basis for about 18 hours per week on campus. Despite her struggles, she made an effort to complete the degree and performed relatively well. She drove to and from the university. She struggled because of her injuries and deferred her exams to February 2015 because the clinical work had aggravated her pain. She had a placement in Liverpool Hospital and a student in her year drove her from home to the hospital and back. She graduated in January 2017 and undertook practical training at various public hospitals for about eight hours for five weeks each time. She suffered immense pain and exhaustion during those weeks and often called in sick. She had to do extra training to make up her sick leave days.
In her oral evidence, on questioning by GIO’s counsel, Ms Phillips stated that, once she commenced her university studies, she was required to do practical work placements in hospitals as part of her degree twice each year. The duration of each work placement was five to six weeks on a full-time basis in hospital wards attending to patients. When it was put to Ms Phillips that she had managed those work placements, she responded that she had managed them but would leave each day in tears and was unable to move on her bed. She would not eat. She also had to have time off work placement and make up for the time lost. She did not use a walking stick whilst on work placements.
Ms Phillips stated that, between April 2017 and April 2018, she worked on an unpaid part-time basis as a nursing assistant with a beauty clinic known as Ageless Clinics. She worked about five hours each month. It was her plan to use her nursing degree to work in cosmetic clinics where her duties would be sedentary. In the end, this was not feasible due to her restrictions and in particular, due to her lack of mobility and stamina.
In her oral evidence, on questioning by GIO’s counsel, Ms Phillips stated that, prior to commencing her university nursing degree, she used to “help out” at Ageless Clinics with advertising and “different things like that”. She stated that was when she became interested in nursing. She would sometimes talk to the general practitioner’s patients about “using the machine and drawing up their insulin and stuff”. When asked why this information had not appeared in her evidentiary statements, she was unable to explain other than to say, “I suppose because the time that I did there was negligible”.
In her oral evidence, on questioning by GIO’s counsel, Ms Phillips agreed that in her application form for acceptance into the nursing degree at Notre Dame University on 29 October 2013, she had stated that she had been working as a practice manager at Ageless Clinics between July 2010 and the date of the application. She then conceded that she “may have over-extended that a bit”. When asked by counsel what she meant by “over-extended”, Ms Phillips was prepared to concede that she had lied in part because she did not start doing anything for the doctor until January/February 2011. In his reference, Dr Cumpston “made my time a little longer and made my title more than it was”.[14] She then conceded that when she signed the declaration in the application form she knew that information was incorrect.
[14] GIO's documents at pages 5,604-5,605.
In respect of Dr Cumpston’s reference that accompanied Ms Phillips’ university application, she agreed that she was not employed as the business development manager for Ageless Clinics and that Dr Cumpston had lied about that in his reference. Ms Phillips denied being paid for the services she provided at Ageless Clinics and maintained that she bartered Botox and fillers in exchange, that is, free treatment. Dr Cumpston’s statement that she was well versed in all aspects of the business treatments was true. In 2012, through Ageless Clinics, she had trained in cosmetic and paramedical tattooing. When asked why this information had not appeared in her evidentiary statements, she blamed her state of mind and denied that she was being intentionally misleading. She denied that she had intentionally lied in her evidentiary statements.
In her oral evidence, on questioning by GIO’s counsel, Ms Phillips agreed that she had travelled to Canberra and Orange for Ageless Clinics on weekends to meet with people from the local newspaper and radio. She stated that she, the doctor, the nurse and the nurse’s mother flew to Canberra and Orange. The doctor paid for her airfares. Ms Phillips stated that she only travelled to each of those locations once. She also stated that she only worked five hours each month for Ageless Clinics between 2017 and 2018. Ms Phillips’ explanation for being able to work full-time during her university work placements and then only five hours per month for Ageless Clinics between 2017 and 2018 was that the work placements nearly killed her and she had driven herself to do it. After that, she was just a mess. Her body told her that she could not push through anymore. Ms Phillips stated that she did not think she could have worked more than five hours per month at Ageless Clinics between April 2017 and April 2018.
In her oral evidence, on questioning by GIO’s counsel, Ms Phillips denied telling Dr Harvey on 20 January 2020, that she was working two hours, two or three times per week at Ageless Clinics. She added that Dr Harvey was hard of hearing and that she often had to correct him. Ms Phillips denied telling Dr Sekel on 8 January 2020 that she was working several hours per shift, three or four shifts per week at Ageless Clinics. There were no set times for her to attend Ageless Clinics. There were times she went there just to read manuals so that she would not have to be at home alone. She confirmed that she was not being paid for her attendances at Ageless Clinics.
In her oral evidence, on questioning by GIO’s counsel, Ms Phillips agreed that she stopped working for Ageless Clinics when she was hospitalised with diabetic ketoacidosis and had not worked since then. She stated that she had not worked since then because her mental health had reached its worst and felt like her body had used up all its energy and that she could not push herself anymore. She did not believe that the deterioration in her condition was caused by the effects of diabetic ketoacidosis but rather, by the motor accident because she had pushed herself until then for so long.
Ms Phillips stated that she had not been able to secure paid employment due to the regular sick leave she would be required to take to manage her symptoms and receive medical treatment and also due to the physical and mental toll such employment would cause due to the extent of her injuries. Her nursing registration has now lapsed.
In respect of her present circumstances, Ms Phillips stated:
(a)    she suffers from arthritic degeneration in the right hand, which was asymptomatic prior to the motor accident;
(b)    she suffers from constant pain in her left groin, left hip and left buttock, which is aggravated by walking, standing and sitting;
(c)    she suffered no pain in her left groin, left hip or left buttock prior to the motor accident;
(d)    she has restricted movement in the left hip and walks with a slight limp;
(e)    she suffers constant pain in her left shoulder radiating into the top of her left arm, left scapula and across the top of her left clavicle, which is aggravated by movement and activity;
(f)    she suffered no pain in her left shoulder prior to the motor accident;
(g)    psychiatric symptoms and moods tend to fluctuate and she has suffered a relapse in her mental health;
(h)    she uses a walking frame;
(i)    she has become overweight since the motor accident and gained about 50kg due to immobility exacerbating her underlying osteoarthritis, which prior to the motor accident had been asymptomatic;
(j)    appetite remains poor;
(k)    social and recreational activities are restricted to visits to her mother in a retirement home with transport organised by her mother;
(l)    she attends Prince of Wales Hospital every four weeks for an infusion of antibodies;
(m)     she consults her general practitioner every three weeks and as required, and
(n)    she attends Prince of Wales Hospital pain clinic for pain blocks and ketamine infusions, the frequency of which have increased since the motor accident.
Ms Phillips’ provided a list of 31 medications and supplements she is currently taking.[15]
[15] Ms Phillips' documents at pages 113-114 at [152].
Ms Phillips stated that, since the motor accident, she has required greater assistance with her activities of daily living. Connor has assisted as much as he could and whenever he could. Connor has now moved out of home and is in a relationship.
Ms Phillips stated that Blake is the licensee and manager of a hotel and lives with his girlfriend. Chloe is undertaking an internship at a Mercure hotel two days per week. She has attempted suicide on a number of occasions and still experiences a lot of mental health issues.

Mr Connor Reece Phillips’ evidence

In evidence, there was a statement by Mr Connor Reece Phillips (Connor) dated 27 July 2023.[16] Connor also gave oral evidence at the assessment conference, GIO having requested his attendance for questioning.
[16] Ms Phillips' documents at pages 123-131.
Connor stated that he is a sessional academic and PhD candidate.
Connor stated that he is the eldest of Ms Phillips’ three children. He has younger twin siblings, Chloe and Blake.
Connor stated that his parents separated when he was about four years of age and that he had had little to do with his father thereafter.
Connor stated that his mother cooked meals each night and always had dinner with the children. She was very warm and always positive and very optimistic even though she was a single mother with three small children and health issues.
Connor stated that his mother was the primary caregiver and was an influence on him. She was very engaged in his education and although she had other issues to deal with, encouraged him to seek selection for a selective high school. She encouraged them to be active and participate in sports such as soccer, athletics, gym and swimming. All three of them became involved in dance.
Connor stated that their involvement in dance led their mother to become actively involved in making costumes and props for the dance school and other parents. She worked at home making patterns and sewing.
Connor stated that he was aware that his mother had health issues. He recalled that she would have to administer insulin before meals.
Connor stated that, in respect of the twins, he became aware at an early age that they were different from him and were having problems. He interpreted the behaviour as being quite manipulative of his mother and as the twins got older, they developed behavioural problems. Blake was impulsive and would find himself getting into fights and unable to avoid conflict. Similarly, Chloe gravitated towards conflict although it was not usually physical. The twins were different from him and had a different relationship to that which he had with his mother. He could not fathom why they were so different from him, having had the same experience growing up.
Connor stated that he gradually became more aware that his mother was involved in trying to manage the twins’ behaviour as well as carrying out normal parenting. He was conscious of the extra demands made on his mother in terms of medical appointments for the twins.
Connor stated that Chloe was eventually diagnosed with attention deficit disorder (ADD) and that Blake was diagnosed with ADHD and Aspergers. The twins were prescribed medication but were non-compliant unless they were managed. This was a source of conflict between them and their mother. His mother never asked him to intervene. However, sometimes he felt compelled to do so because his mother was so ineffectual in doing what she wanted to do.
Connor stated that, by the time Blake was 10 years of age, he had become a disruptive influence in the home and he not only threatened Chloe but was also aggressive towards his mother. Until then, his mother was able to manage his behaviour through her physical ability. The escalation in behavioural difficulties was occurring prior to the motor accident but his mother had been able to manage it.
Connor stated that his mother used various strategies to mitigate the twins’ behaviour including locking cupboards to pantries and locking the refrigerator to stop them from stealing confectionary. Access to sugar for the twins was restricted and strictly controlled because the medical advice was that it was contributing to their hyperactivity. His mother had been able to manage the twins prior to the motor accident.
Connor stated that, at the time of the motor accident, he was about 12 years of age and attending Gosford High School. As a result of the motor accident, he left home and stayed with a friend from school and the twins stayed with their grandmother. Then, Blake went to live with his father but that ended after a few months.
Connor stated that, following the motor accident, his mother gradually ceased doing the domestic tasks, extracurricular activities and costume making referred to above. She struggled with her mental health. Being unable to do things physically that she once could, left her upset and feeling useless. However, she still took great pride in being a good mother.
Connor stated that the motor accident affected his mother’s ability to physically perform the tasks she previously carried out. It affected how she functioned. She developed physical and psychological issues with driving.
Connor stated that the move to Sydney had a negative impact on the twins because the premises were smaller and they were living in much closer proximity to each other, which heightened the conflict between the twins. The flat had three bedrooms and he shared a bedroom with Blake. The move to Sydney was also difficult for his mother because she lost her support network and she had to manage the twins alone with his assistance. Blake tended to direct his anger and threats of violence towards him.
Connor stated that, by 2011/2012, his mother was physically unable to separate Blake and him. By this stage, his mother’s intervention in managing conflict was greatly impaired and limited to attempting to mediate but was useless as far as managing conflict between Chloe and Blake. His mother appeared both physically and mentally helpless in dealing with the conflict situations. By 2012, she had become passive.
Connor stated that he appreciated that Chloe may have felt unsafe alone with Blake and that it may have resulted in her complaint about their mother. The family situation deteriorated when Chloe complained at school about something that resulted in the intervention of a child protection caseworker from Family and Community Services (FCS). FCS required the twins to be removed from his mother’s care. A compromise was reached and the twins went to live with their grandmother due to concerns about his mother’s ability to manage them. He remained in the care of his mother.

Connor stated that the twins proved too challenging for their grandmother. On an unspecified date, Blake moved in with his father. Later, Chloe left her grandmother and went into a program called Steppingstones.
Connor stated that the impact of his siblings’ removal from his mother’s care in 2013 was severe. She confided in him that, during her low moments, she had nothing to live for without the children. Connor did not believe that his mother would ever fully recover from the impact of the removal of his siblings from her care all those years ago.
Connor stated that, an opportunity arose for his mother to do a nursing degree at university. At the time, he was living at home and recalled that when she came to do the practical placements in her course, she struggled a lot. He also recalled discussing her difficulties in this regard. She even struggled attending campus. She had to organise transport and rely on other students for assistance. He was able to assist her because his degree was in medical science. However, he observed that his mother had a natural aptitude through her own health history.
Connor stated that he provided the following domestic care and assistance to his mother after the motor accident and until January 2018, when he moved out of home:
(a)    three hours per week performing general house cleaning and laundry;
(b)    five hours per week in meal preparation;
(c)    two hours per week grocery shopping, general and personal supplies and collecting medication;
(d)    one hour per week of minor medical care such as wound monitoring and dressing, organisation and administration of medication, providing first aid and procuring medical services as necessary, and
(e)    taking her to and from medical appointments as needed.
Connor stated that he provided, at least, 11 hours of domestic care and assistance per week for his mother between 2009 and 2018.
Connor stated that, since moving out of home in January 2018, he has continued to provide assistance to his mother whenever she requests it and when he is able to do so. He visits her often to provide her with mental respite as well as assist with whatever needs doing around the house, such as, deep cleaning and fixing items.
In his oral evidence, Connor stated that after his parents separated, his grandmother would visit them on the Central Coast one to three times per year and it was usually a day visit. He did not recall staying with his grandmother in Sydney before the motor accident.
Connor stated that, apart from his mother’s diabetes, he did not recall her having other health issues at the time, as he was quite young. He was aware that his mother attended appointments at Prince of Wales Hospital prior to the motor accident but he was unaware what the appointments were for. He was unaware of the amount of pain medication taken by his mother prior to the motor accident.
Connor confirmed that the escalation in Blake’s behavioural difficulties occurred prior to the motor accident and that his mother had managed. She was able to physically separate Blake and Chloe. She never complained to him of her inability to look after the twins.
Connor was not aware that, prior to the motor accident, his mother was planning to sell the family home.
Connor stated that, prior to the motor accident, he was doing things around the house to help his mother out of a desire to do so as opposed to a necessity. He assisted with the preparation of meals, hanging out the laundry and accompanying his mother when grocery shopping.
Connor stated that his recollection was that, either before or after the motor accident, there was a cleaner who came in about once per fortnight. The cleaner did the heavier house work like vacuuming, changing sheets, washing the dishes, cleaning the kitchen, cleaning the floors, cleaning bathrooms and cleaning windows.
Connor agreed that when the family moved to a small three bedroom apartment in Sydney, the volume of time required for him to complete tasks was reduced. He agreed that if his mother asked him to do something in the home, he would just do it without giving any thought as to whether she could do it or could not do it.
Connor stated that he was aware that his mother was doing some work for Ageless Clinics with Dr Cumpston. He was unable to say how often she worked there. He was aware that she went to Canberra or Orange for work on less than 10 occasions. It was a rare occurrence. He believed that his mother was driven to and from those places.

Ms Susan Younie’s evidence

In evidence, there was a statement by Ms Susan Younie dated 7 July 2023 lodged with the Commission on 19 September 2023. Ms Younie also gave oral evidence at the assessment conference, GIO having requested her attendance for questioning.
Ms Younie stated that she is the mother of Ms Phillips.
Ms Younie stated that Ms Phillips had struggled with various health issues throughout her life which commenced when she was diagnosed with diabetes at 12 years of age. Whilst the health issues presented her with many challenges and complications in her life, Ms Younie had always observed her to show perseverance, resilience and determination in achieving her goals, the foremost of which, was her family and doing the best she could for them.
Ms Younie stated that it was always Ms Phillips’ intention to return to the workforce when she felt comfortable with the children having her less involved in their lives. Her observations were that, before the arrival of the children, Ms Phillips enjoyed work and found motivation in it.
Ms Younie stated that, when Ms Phillips married in 1995, she moved to the Central Coast and there was a period where Ms Younie had less involvement in her life. However, that changed after Connor was born and increased with the arrival of the twins. Ms Phillips’ house on the Central Coast was large and from time to time, Ms Younie would stay at the house to assist. After Ms Phillips separated from her husband, Ms Younie continued to assist from time to time. During her visits, she was able to observe Ms Phillips’ total commitment to the children by ensuring that they had access to all the activities of their friends, despite struggling with pain, financial stress and being alone. The children were always actively engaged in organised activities including swimming, gym, soccer and dancing. These activities provided Ms Phillips with a little respite and the ability to socialise.
Ms Younie stated that, in May 2009, Ms Phillips was seriously injured in a motorcycle accident. She spent about five weeks in hospital and in rehabilitation. Once released, she remained restricted and unable to manage independently. As a result of the motor accident, Ms Younie’s role in Ms Phillips’ life and family changed significantly. Initially, the twins stayed with Ms Younie and her husband in Sydney for about two months. Connor stayed with a friend. Ms Younie thought that after a short while, Blake may have gone to live with his father.
Ms Younie stated that, once the children went back home, she travelled up to the Central Coast to stay more regularly to assist Ms Phillips and to assist her in managing the children. After the motor accident, the twins would come to stay with Ms Younie and her husband for two weeks during school holidays because Ms Phillips was unable to manage them anymore.
Ms Younie stated that, following the motor accident, she observed a change in Ms Phillips, not only due to her physical injuries but also with her social interactions. She became withdrawn and less able to make the effort to be involved outside the home. After a couple of years, Ms Phillips was communicating less regularly with her. It was not until she received a telephone call from a DOCS support worker in about September 2012, that she was made aware of the extent to which Ms Phillips’ ability to manage the children had reached the stage where there were concerns for Chloe’s safety. The support worker asked Ms Younie to agree to taking Chloe for a couple of days or possibly, a couple of weeks. She asked the DOCS support worker when she could expect Chloe and the support worker responded that she and Chloe were in the car out the front of Ms Younie’s home.
Ms Younie stated that Chloe moved in to her home first and Blake followed a couple of months later. The matter then went to the Children’s Court.
Ms Younie stated that the twins were challenging. She and her husband found it very demanding. Blake was particularly challenging for her and at times, she felt physically intimidated by him. So, she could relate to Chloe’s fears. Blake appeared to be happier with a male in charge and eventually, went to live full-time with the younger foster couple who had provided respite care one night every six weeks.
Ms Younie stated that, initially, the twins settled into their home after she and her husband reordered the house and rearranged their lives to work around them. However, after a period, things became less settled and the twins started running away and the police had to get involved. Ms Younie and her husband provided care virtually 24 hours per day as they would need to be alert to the twins running away or staying out all night. It became a particular problem when the care agency recommended that the twins be provided with mobile telephones. Ms Younie found this counter-productive because they could, on occasions, spend all night speaking to Ms Phillips on the telephone. The mobile telephone issue was a focus of much conflict and contributed to the twins staying out all night or calling in the early hours of the morning asking to be picked up.
Ms Younie stated that the motor accident was not only a turning point in Ms Phillips’ life in terms of how it changed her ability to manage and participate in life both physically and mentally but it also changed her life. She would never have imagined that she and her husband would have to virtually co-parent from 2009 and then provide full-time parenting from September 2012.
In her oral evidence, Ms Younie stated that she saw Ms Phillips once per month after she moved out of home at age 18 to 20 years until she moved to the Central Coast and then she saw her once every month or six weeks. Ms Phillips was not working when she moved to the Central Coast. After Connor was born, Ms Younie visited the family every few weeks.
Ms Younie was not of the understanding that there were medical conditions which impacted Ms Phillips’ capacity to work. It was looking after the children that kept Ms Phillips from working. Although, after she had the twins, Ms Phillips did suffer from severe endometriosis and underwent a couple of operations and she eventually had a hysterectomy. At that time, Ms Younie spent weeks at the Central Coast with the family, coming back to her home in Sydney usually on weekends.
On further questioning, Ms Younie stated that Ms Phillips had been a diabetic from the age of 12 years. She was aware that Ms Phillips attended the Prince of Wales Hospital pain clinic but did not remember how often. Ms Younie did not recall Ms Phillips having pain in her knees and hips prior to the motor accident.
After Ms Phillips separated from her husband, Ms Younie would visit the family on the Central Coast about once a fortnight or once every three weeks. Sometimes, she would stay overnight.
Ms Younie was aware that Ms Phillips was receiving assistance with her house work before the motor accident. Some of that assistance was because she had the twins and the twins were actually quite difficult. Also, because of the diabetes and other things she had. She knew that Ms Phillips was on a disability support pension but did not know when that started.
Ms Younie stated that she was unsure whether both Blake and Chloe stayed with her whilst Ms Phillips was in hospital following the motor accident. She thought that, at some time during that period, Blake did go to stay with his father. She was certain that she had Chloe and that Connor was looked after by the mother of one of Connor’s friends.
When questioned as to whether she was aware that Ms Phillips had complained to various people that she was not coping with looking after the children, Ms Younie responded that the twins were very difficult children to manage. Ultimately, Ms Younie took the twins in 2012. Ms Younie stated that she found it difficult to manage Blake and she ultimately, found Chloe difficult as well. The two of them together were like “dynamite”. She agreed that it was understandable that Ms Phillips was having difficulties looking after the three children.
Ms Younie stated that she was aware that Ms Phillips completed a nursing degree after the motor accident and that she was doing some work for a cosmetic clinic called Ageless Clinics. Ms Younie thought that the work for Ageless Clinics came before Ms Phillips commenced the nursing degree. She never had to babysit the children whilst Ms Phillips was working for Ageless Clinics. Ms Younie agreed that, before the motor accident, Ms Phillips would not have contemplated working for Ageless Clinics and obtaining a nursing degree.

Ms Chloe Phillips’ evidence

In evidence, there was a statement by Ms Chloe Phillips (Chloe) dated 8 August 2023.[17] GIO requested her attendance for questioning. However, on the two dates the assessment conference took place, Chloe was in hospital receiving medical treatment. The Commission was unaware of the precise nature of the medical treatment or the medications Chloe was receiving at that time. Further, privacy could not be guaranteed if a video link or telephone link with Chloe could be organised whilst she was in hospital. In those circumstances, questioning of Chloe was not pressed by GIO.
[17] Ms Phillips' documents at pages 132-135.
Chloe stated that she is the daughter of Ms Phillips and confirmed her date of birth in 1999. She also confirmed that she had a non-identical twin, Blake and an older brother, Connor.
Chloe stated that Ms Phillips had diabetes and managed it by administering insulin. She was aware that Ms Phillips had a few other health issues because of her visits to doctors. She did not observe that those issues interfered with their lives.
Chloe stated that her parents separated when she was 18 months old and that her father played little part in the family from an early age.
Chloe stated that she had ADD and that Blake had ADHD and Aspergers.
Chloe stated that she felt there was sibling rivalry between her and Blake. Their strong personalities clashed a lot.
Chloe stated that they did dancing, swimming and other activities with their mother. They did playgroup and went to friends’ houses with other children. Their mother was very social and popular. She would drive them to doctors’ appointments and school appointments. She would cook every night and look after the house. They would go on outings together. Their mother would manage their medications.
Chloe stated that, when she was almost 10 years of age, her mother was involved in a motor accident. She was hospitalised for a long time and she and Blake stayed with their grandmother. They also spent school holidays with their grandmother. Their lives changed after the motor accident.
Chloe stated that the father of Chloe’s best friend was the rider of the motor cycle that caused the motor accident. It was spoken about a lot at school. Rumours started to spread and she and her mother started being left out of things. Her mother had less friends and some, even turned on her.
Chloe stated that, after the motor accident, her mother was not as active. Mentally, she struggled and that affected them. Her mother was not doing the things she did before. She was not as social because of the rumours about the relationship between her and the motorcycle rider. She was no longer really doing housework. A lot of people came to help but she was unable to remember who they were. The two storey house they were living in had a garden and an outdoor area, all of which required her mother’s attention but she showed no interest and struggled physically to do much at all. Chloe and Blake’s grandmother became more involved in their lives. Connor stayed with their mother or friends. She and Blake would go to their grandmother.
Chloe stated that things between her and Blake started to become more difficult and she felt more vulnerable, intimidated and unsafe, even when her mother was at home. By 2012, her mother seemed helpless in dealing with Blake’s behaviour and did not seem to have the will or capacity to make Chloe feel safe. Blake had a lot of anger management issues and when he got upset, he would become threatening and even regularly threatened her with a knife. Her mother could not physically step in or was not home to do so because she was out at appointments. When her mother was at home, she ran away because she felt that she could not protect Chloe.
Chloe stated that, eventually, she told a school counsellor about her mother and how she was not coping with them. The counsellor reported her mother to FCS, who, in September 2012, contacted her grandmother to ask whether Chloe could stay with her. The stay with her grandmother became permanent and about three months later, Blake joined her. They attended Concord High School and things improved. Chloe and Blake kept in contact with their mother.
Chloe stated that, whilst living with her grandmother, respite carers were made available. When she started running away, she and Blake were moved permanently to the respite carers. After a few months, the respite carers got rid of her without an explanation and she went to emergency foster carers. Then she became homeless and was on the street at the age of 13 years. She ended up in refuges and was bouncing around refuges until she attained the age of 18 years, with periods on the streets when DOCS were unable to find places for her to stay.
Chloe stated that she was now doing well. She had her own apartment. She was working as a receptionist at a hotel.

The medical evidence

The nature of this claim requires a detailed analysis of the medical evidence prior to and following the motor accident.

Pre-accident medical history

There is no dispute that Ms Phillips had a long and complicated pre-accident medical history. The details of her medical conditions preceding the motor accident can be found in the voluminous clinical records in evidence from Erina Fair Medical Centre,[18] John Hunter Hospital,[19] St Vincent’s Hospital,[20] Prince of Wales Hospital,[21] Sydney Orthopaedic Specialists,[22] Dr Leo Pinczewski,[23] Department of Respiratory and Sleep Medicine,[24] Dr Simon Roger,[25] Royal Prince Alfred Hospital[26] and Gosford Hospital.[27] They have also been referred to in Ms Phillips’ evidence and in some of the medico-legal evidence.
[18] GIO's documents at pages 218-444.
[19] GIO's documents at pages 445-546.
[20] GIO's documents at pages 547-1,220.
[21] GIO’s documents at pages 1,371-3,053.
[22] GIO’s documents at pages 3,054-3,068.
[23] GIO’s documents at pages 3,069-3,083.
[24] GIO’s documents at pages 3,084-3,114.
[25] GIO’s documents at pages 3,121-3,157.
[26] GIO’s documents at pages 3,158-3,573.
[27] GIO’s documents at pages 3,716-5,033.
The John Hunter Hospital discharge referral dated 16 June 2009 provided a list of secondary diagnoses as follows[28]:
[28] GIO's documents at page 458.
(a)    type I diabetes mellitus;
(b)    depression;
(c)    hypertension;
(d)    glomerular membrane disease;
(e)    systolic murmur;
(f)    asthma;
(g)    benign familial nephritis;
(h)    osteoarthritis and osteopenia;
(i)    chronic pain: abdomen, knees, hip, chest, hands, lumbar spine, buttocks, shoulders and hands;
(j)    hypercholesterolaemia;
(k)    irritable bowel syndrome;
(l)    liver hemangiomas;
(m)     neurogenic bladder – self catheterised;
(n)    sleep apnoea;
(o)    chronic bronchitis, and
(p)    antibody deficiency.
The John Hunter Hospital discharge referral also provided a list of medications on admission that included Norspan transdermal patches; oxycodone; paracetamol; gabapentin; aspirin; atorvastatin; Coloxyl; Movicol; ramipril; mirtazapine; temazepam; and Symbicort.

The St Vincent’s Hospital discharge summary dated 29 November 1983 reported that Ms Turnbull (now Phillips), aged 13 years, presented at the hospital’s accident and emergency centre on 28 October 1983 in a diabetic coma. She was poorly responsive to pain, peripherally shut down, hypotensive, dehydrated and cachectic. She had not previously been diagnosed with diabetes. She was discharged on 1 November 1983.[29]
[29] GIO's documents at page 549.
Ms Phillips’ St Vincent’s Hospital clinical records disclosed that she had suffered diabetic ketoacidosis multiple times since being first diagnosed in 1983.[30] She came under the care of Professor John Chisholm, endocrinologist, at the hospital for many years and after he retired, she consulted Dr Jerry Greenfield, endocrinologist.
[30] GIO's documents at page 1,174.
Ms Phillips’ Prince of Wales Hospital clinical records disclosed that she had for many years regularly consulted Professor Denis Wakefield, immunologist, for Intragam infusions in respect of her immunodeficiency disorder. Over many years, she also regularly consulted Dr Chimene Bahr of the Prince of Wales Hospital pain clinic for ketamine infusions to assist with the reduction of her intake of narcotic medication and nerve blocks for the pain in her right hip, bilateral sacroiliac joints and the L4 and L5 regions.
On 3 November 2004, Dr Timothy Lew, general practitioner, of the Erina Fair Medical Centre recorded in Ms Phillips’ clinical records that she now complained of bilateral knee pain with the left knee being worse than the right. On examination, Dr Lew noted that there was not much to see. There was slight swelling of the left knee with mild crepitus but no heat or rubor.[31]
[31] GIO’s documents at page 220.
On 5 November 2004, Dr Lew recorded in Ms Phillips’ clinical records that she was suffering from infrapatellar bursitis. He recommended that she continue taking Mobic, apply ice and use a knee guard.[32]
[32] GIO's documents at pages 220-221.
On 13 December 2004, Dr Lew recorded in Ms Phillips’ clinical records a complaint of pain in both knees and the right hip. On examination, he noted that Ms Phillips’ knees were “OK” and that her right hip was tender over the right greater trochanter insertion.[33]
[33] GIO's documents at pages 221-222.
On 21 December 2004, Dr Lew recorded in Ms Phillips’ clinical records a complaint of left knee and back pain. On examination, there was tenderness over the medial left knee joint line. There was no tenderness in the spine. Dr Lew noted that an X-ray demonstrated mild lower lumbar scoliosis and degeneration.[34]
[34] GIO's documents at page 222.
On 24 January 2005, Dr Lew recorded in Ms Phillips’ clinical records problems with her knees, irritable bowel syndrome, abdominal pain and neuropathy type pains in the abdominal wall. He referred Ms Phillips to Dr Leo Pinczewski.[35]
[35] GIO's documents at page 223.
On 20 July 2005, Dr Lew recorded in Ms Phillips’ clinical records that she had been in hospital with bowel adhesions, constipation and chronic pelvic pain. He noted past endometriosis and that she had undergone a laparoscopy and dividing of adhesions. The hospital put her on MS Contin.[36]
[36] GIO's documents at page 226.
On 29 July 2005, Dr Eileen Arndt, general practitioner, of the Erina Fair Medical Centre recorded in Ms Phillips’ clinical records that Ms Phillips had complex pain management issues relating to her history of endometriosis.[37]
[37] GIO's documents at page 226.
On 14 September 2005, Dr Arndt recorded in Ms Phillips’ clinical records a complaint of aching knees and anxiety regarding her children and their illnesses.[38]
[38] GIO's documents at page 228.
On 7 October 2005, Ms Phillips consulted Dr Leo Pinczewski, orthopaedic surgeon, on the referral of Dr Lew. In a report to Dr Lew, Dr Pinczewski opined that Ms Phillips had an anterior knee pain syndrome with acute medial joint line tenderness. He arranged for Ms Phillips to undergo an MRI scan of the left knee.[39]
[39] GIO's documents at page 3,071.
On 25 October 2005, Ms Phillips underwent an MRI scan of her left knee on the referral of Dr Pinczewski. The MRI scan demonstrated a tear in the posterior horn of the medial meniscus. There was a small ganglion adjacent to the anterior horn lateral meniscus but no lateral meniscal tear was identified.[40]
[40] GIO's documents at page 3,083.
On 28 October 2005, Dr Pinczewski reported to Dr Lew that the left knee MRI scan demonstrated a degenerative cleavage tear of the medial meniscus with a parrot’s beak component. In view of the severity of Ms Phillips’ symptoms, he felt she should undergo an arthroscopic subtotal medial meniscectomy.[41]
[41] GIO's documents at page 3,072.
On 28 November 2005, Dr Arndt recorded in Ms Phillips’ clinical records that she had been using a walking stick to reduce knee pain. Ms Phillips requested more scripts for analgesia.[42]
[42] GIO's documents at page 230.
On 20 January 2006, Dr Arndt recorded in Ms Phillips’ clinical records that she had been staying with friends and screaming out during the night with pain. Dr Arndt did not record the location of the pain. Dr Arndt noted that Ms Phillips requested a chest X-ray to allay her anxiety. Ms Phillips also expressed her concern about her coping ability and felt that she may require a carer to assist her as her son has ADHD and Aspergers.[43]
[43] GIO's documents at page 232.
On 25 January 2006, Dr Arndt recorded in Ms Phillips’ clinical records that she was crying and distraught with her situation. She was crying out with the pain in her kidneys and chest at night.[44]
[44] GIO's documents at page 232.
On 3 February 2006, Dr Arndt recorded in Ms Phillips’ clinical records that they discussed at length Ms Phillips’ analgesic requirements over the last few months and it was noted that, if anything, her pain problems had escalated. Dr Arndt noted that Ms Phillips was having problems coping at home as a single parent and she hoped that her upcoming appointment at the Prince of Wales Hospital pain clinic would sort things out.[45]
[45] GIO's documents at pages 232-233.
On 10 February 2006, Dr Arndt recorded in Ms Phillips’ clinical records that they discussed at length Ms Phillips’ increasing dependency on analgesics and the need to correct some pain problems which can be improved, for example, the knee.[46]
[46] GIO's documents at page 233.
On 3 March 2006, Dr Arndt recorded in Ms Phillips’ clinical records that she had been hospitalised for diabetic ketoacidosis. She was given Serepax and Doloxene. Dr Arndt noted that Ms Phillips’ “cocktail of drugs” was expanding.[47]
[47] GIO's documents at page 233.
On 6 April 2006, Dr Michael Solomon, orthopaedic surgeon, reported to Dr Bahr that he had consulted Ms Phillips, who had complained of bilateral knee pain, worse on the left and bilateral hip pain, worse on the right. He noted that she had consulted another orthopaedic surgeon (Dr Pinczewski) who had investigated her knee pain and that a medial meniscal tear was confirmed on MRI. Dr Solomon opined that, considering her symptoms and signs, it was not unreasonable to proceed with arthroscopic surgery.[48]
[48] GIO's documents at page 3,057.
On 26 May 2006, Dr Arndt recorded in Ms Phillips’ clinical records that Ms Phillips had experienced a bad week with more pains and difficulties with her children and their behaviour.[49]
[49] GIO's documents at page 235.
On 16 June 2006, Dr Arndt recorded in Ms Phillips’ clinical records that Ms Phillips had experienced a fall with multiple grazes and contusions. The location of the grazes and contusions was not recorded.[50]
[50] GIO's documents at pages 236-237.
On 8 September 2006, Dr Arndt recorded in Ms Phillips’ clinical records that Ms Phillips needed to use Oxynorm three times daily despite all her other medications. Dr Arndt noted Ms Phillips’ major stressors with her son, his expulsion from school and his difficult behaviour. Dr Arndt discussed her concerns regarding the escalation of her medication dosage and noted some somatisation in her pain profile which needed to be discussed with the pain clinic.[51]
[51] GIO's documents at pages 239-240.
On 14 September 2006, Dr Douglas Arndt, general practitioner, of the Erina Fair Medical Centre recorded in Ms Phillips’ clinical records that Ms Phillips was stressed out looking after her children, Blake and Chloe, as they fight all the time. He noted that Ms Phillips is a single mother with severe health problems, who required respite care. He noted that Blake was violent and had been expelled from school. Dr Arndt recorded the reason for Ms Phillips’ visit as chronic pain syndrome and family dysfunction.[52]
[52] GIO's documents at page 230.
On 23 October 2006, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that she was still awaiting knee surgery and planning to obtain a disability allowance in order to access the “grey army” to assist her with cleaning and home care.[53]
[53] GIO's documents at page 241.
On 5 January 2007, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that she had been hospitalised from 2 January 2007 to 5 January 2007 with diabetic ketoacidosis.[54]
[54] GIO's documents at page 244.
On 23 January 2007, Ms Phillips underwent a Centrelink referred job capacity assessment. A job capacity assessment report was produced thereafter.[55] The report recorded Ms Phillips’ conditions as permanent chronic pain; temporary lower limb deficiencies; and unsatisfactorily controlled insulin dependent diabetes mellitus. In respect of the lower limb deficiencies, the report noted that Ms Phillips was to undergo arthroscopic surgery to both knees. The assessor opined that Ms Phillips had a baseline work capacity of 0 to 7 hours per week with or without intervention due to her permanent medical conditions and that she was experiencing a difficult time sustaining her current level of functioning and would not cope with work. No referrals were facilitated because Ms Phillips had a very limited capacity to participate.
[55] GIO's documents at pages 5,531-5,537.
The job capacity assessor noted that Ms Phillips was diagnosed with insulin-dependent diabetes at the age of 13 years. Treatment had included the use of insulin and regular reviews with several specialists. Although her condition was generally well-controlled, she had frequent hospitalisations for diabetic ketoacidosis and had undergone eight to twelve hospital admissions in the past five years. Ms Phillips suffered from endurance limitations and it took her much longer to recover from illness.
The job capacity assessor noted that Ms Phillips was diagnosed with chronic pain disorder in 1999. Treatment had been intensive and optimal. Ms Phillips suffered from severe abdominal, bladder and chest pain. She also experienced pain in both hands. Pain had resulted in endurance limitations and an inability to persist with physical tasks. She was only able to do basic domestic chores around her home including, washing, meal preparation and shopping. She had a home care service coming to her home for four hours per week to undertake all other tasks. Ms Phillips needed to sit on a stool whilst showering and had handrails and other modifications made to her home. She was unable to write for long periods and could not peel potatoes. She had difficulty with concentration at times due to the combined effects of her medication and pain levels.
The job capacity assessor noted that, two years earlier, Ms Phillips had developed problems with both knees. Treatment had included hydrotherapy, meditation and medication. Ms Phillips continued to experience difficulty walking and standing and had to use a walking stick for stability. She was on the waiting list for surgical treatment in the public health system and had been waiting for 18 months for surgery.
In her oral evidence, on questioning by GIO’s counsel, Ms Phillips agreed with the contents of the job capacity assessment report.
On 10 April 2007, Ms Phillips underwent a bilateral knee arthroscopy by Dr Solomon at Prince of Wales Hospital. The right knee findings were normal. In respect of the left knee, there was a medial meniscal tear post horn that was resected. Otherwise, the left knee was normal.[56]
[56] GIO's documents at page 1,483.
On 15 May 2007, Dr Douglas Arndt recorded in Ms Phillips’ clinical records that her knee pain was worse than before the arthroscopy. Effusions were present but no infection. Ms Phillips reported that her hips were also painful.[57]
[57] GIO's documents at page 247.
On 22 May 2007, Dr Douglas Arndt recorded in Ms Phillips’ clinical records that Ms Phillips complained of numbness in her left foot. He noted that she was receiving Meals on Wheels twice per week.[58]
[58] GIO's documents at page 247.
On 29 June 2007, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that Ms Phillips requested referrals to a psychologist and physiotherapist. Dr Arndt proposed referring her to a neurologist to investigate the symptoms of numbness in her hand, lower leg and foot. Dr Arndt advised Ms Phillips of her concern that the bulk of her medications for neuroleptics and narcotic analgesics may be contributory to her problems. It was noted that Ms Phillips was using a walking stick and that she was to undergo a steroid injection for bursitis in her right hip at Prince of Wales Hospital.[59]
[59] GIO's documents are pages 248-249.
On 23 July 2007, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that she had discussed, at length, her concerns regarding Ms Phillips’ analgesic and neuroleptic medication and the fact that she continued to need such high doses given that issues of pain were being addressed with multiple specialist involvement. Dr Arndt’s concern was possible long-term dependency and side effects.[60]
[60] GIO's documents at page 249.
On 20 August 2007, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that she again discussed, at length, Ms Phillips’ use of analgesia. Dr Arndt noted that Ms Phillips reported that a cortisone injection for bursitis worked for about a fortnight but was now wearing off. Whilst in hospital, she spoke about her pain management and felt that she had been proactive in the management of her health issues but that it did not seem to have done much. Most of her time was spent seeing doctors. Dr Arndt advised that her impression was that Ms Phillips’ care had been better than most in view of her multiple issues. Dr Arndt advised that it seemed unusual to have further areas of pain popping up when she was on such high doses of multiple agents. Dr Arndt noted that Ms Phillips would be attending the pain clinic that week and suggested that perhaps she should have an MRI of the hip to ensure that it was only bursitis.[61]
[61] GIO's documents at page 250.
On 29 October 2007, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that Ms Phillips may have further admissions for ketamine. She was experiencing neck pain.[62]
[62] GIO's documents at page 251.
On 4 January 2008, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that she advised Ms Phillips to undergo a follow-up bone density study, noting that the last study was normal and there was a report of osteopenia on X-ray. Ms Phillips reported a plan for monthly gamma globulin infusion on the advice of her immunologist. There was also a plan for further ketamine infusion and steroid injections at the pain clinic.[63]
[63] GIO's documents at page 252.
On 4 February 2008, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that the bone density study revealed some reduction in the neck of the femur. They discussed pain management and it was noted that Ms Phillips was due for another ketamine infusion. Dr Arndt noted that Ms Phillips still seemed to be taking a lot of analgesics.[64]
[64] GIO's documents at pages 252-253.
On 3 March 2008, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that she had had a telephone conversation, at length, with Dr Bahr. She expressed her concerns for Ms Phillips and her escalating use of analgesics and over-the-counter products with an unrelenting list of symptoms. Dr Bahr was very aware and reassured Dr Arndt about harm minimisation in Ms Phillips’ case and the need to strengthen her coping strategies and direct her away from her reliance on medical and pharmaceutical interactions. Dr Arndt noted that she had been very much reassured by Dr Bahr’s input.[65]
[65] GIO's documents at pages 253-254.
Ms Phillips’ Prince of Wales Hospital discharge summary dated 1 April 2008, referred to findings of chronic pain in the hips, knees and abdomen, amongst other things.[66]
[66] GIO's documents at page 3129.
On 7 April 2008, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that Ms Phillips went to Sydney to stay with a friend, became unwell with a kidney infection and was hospitalised. She underwent an extensive range of consultations during her admission, including ketamine infusion, diabetes follow-up and neurology follow-up. A room companion in hospital told Ms Phillips that she had sleep apnoea and Ms Phillips thought this may need investigation. Dr Arndt advised her that her narcotic medication intake was obviously going to have some impact and it may be difficult to interpret any studies. Dr Arndt reduced MS Contin to 20mg and Ms Phillips was quick to point out that such quantity was inadequate for a month’s supply. Ms Phillips found her psychiatric consultation helpful. Ms Phillips’ main fear was her diabetes rather than chronic pain.[67]
[67] GIO's documents at page 254.
On 2 June 2008, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that they had discussed her antidepressant medication. Dr Arndt noted that Ms Phillips was anxious to see a social worker in Sydney to discuss her fears and anxiety. She felt that she was not holding it together and tried to put on an outward show by dressing up. Dr Arndt observed that her expectations were probably very high given her somatic complaints, medications, the fact that she was a single parent with diabetes and had children with special needs. She advised Ms Phillips to allow her Sydney specialist to adjust her medication.[68]
[68] GIO's documents at page 256.
On 4 July 2008, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that Ms Phillips would continue within immunoglobulin infusions for life. She noted that Ms Phillips was due to have sleep studies with a respiratory specialist in Sydney.[69]
[69] GIO's documents at pages 256-257.
On 1 August 2008, Dr Eileen Arndt recorded in Ms Phillips’ clinical records that everything was getting on top of her. The children were running rings around her. She was advised to get a mental health plan. She was already seeing a psychologist through the pain clinic.[70]
[70] GIO's documents at page 257.
In a report to Professor Wakefield dated 5 August 2008, Dr Elizabeth Brown of Prince of Wales Hospital noted, amongst other things, that Ms Phillips had a chronic pain syndrome with pain in her abdomen and chest as well as osteoarthritic pain in her knee and hips. She also had back pain and abdominal pain secondary to endometriosis.[71]
[71] GIO's documents at page 3,113.
Ms Phillips’ Prince of Wales Hospital clinical records on 17 September 2008 noted complaints of headaches and pain in the abdomen, kidney area, chest, hip, knees, left shoulder, right heel and hand.[72] The records also noted that Ms Phillips felt she was not doing well mentally. She felt her general practitioner was not supporting her treatments. She was just spiralling and not coping. It was also noted that Ms Phillips wanted to relocate to Sydney to be in proximity of her treating specialists at Prince of Wales Hospital.
[72] GIO's documents at page 1,663.
On 18 September 2008, Ms Phillips consulted Dr Kok Eng Khor of the Prince of Wales Hospital pain clinic, who reported to Dr Eileen Arndt.[73] Dr Khor reported that Ms Phillips complained of progressively worsening pain predominantly over the sacroiliac area, right hip, left knee and left shoulder. Due to the increased pain, her medication had been increased. Dr Khor arranged for Ms Phillips to be readmitted to hospital for repeat of the joint injections and ketamine infusion.
[73] GIO's documents at pages 1,730-1,731.

I give little weight to Ms Younie’s evidence in respect of the pre and post-accident assistance she stated that she provided to Ms Phillips and the periods during which she cared for one or more of the children in her own home. Ms Younie’s evidence was vague. It was inconsistent with Connor’s evidence and Ms Phillips’ evidence. Ms Younie stated that she was unsure whether both Blake and Chloe stayed with her whilst Ms Phillips was in hospital following the motor accident. Ms Younie was not of the understanding that there were medical conditions which impacted Ms Phillips’ capacity to work. It was looking after the children that kept Ms Phillips from working. Ms Younie’s understanding in this regard was inconsistent with the evidence.
Chloe’s recollection was that, following the motor accident, she and Blake stayed with their grandmother whilst Ms Phillips was hospitalised. They also spent school holidays with their grandmother. Chloe recalled that, after the motor accident, her mother was not as active. Her mother struggled mentally and was no longer doing the things she used to do before. Their grandmother became more involved in their lives. Again, due to her young age at the relevant time and the effluxion of time, the periods of care provided by her grandmother to her and her siblings and to her mother were understandably vague. Therefore, I have also treated Chloe’s evidence in this regard with caution.
On 2 February 2010, Dr Harvey noted that Ms Phillips had been receiving domestic assistance prior to the motor accident and continued to do so. He did not consider the motor accident had created the need for any continuing domestic assistance. He opined that it was quite likely that she would have required increased domestic assistance for the first three months or four months after being discharged from hospital.
Ms Grinter opined that Ms Phillips had required domestic assistance since the motor accident of one hour per week in respect of cleaning; one hour per week in respect of laundry; 1.5 hours per week in respect of shopping; and 3.5 hours per week in respect of meal preparation that had been provided by Connor and her friends. Ms Grinter’s opinion was provided in the scenario where only Connor was residing with Ms Phillips and presumably, in addition to the government subsidised home care of four hours per week. Although, the latter assumption is by no means clear. Ms Grinter envisaged extra assistance when each of the twins returned home. I give little weight to Ms Grinter’s opinion. She was reliant on the information provided to her by Ms Phillips, whose evidence I have treated with caution for the reasons already stated.
On 15 July 2015, Dr Harvey considered it reasonable that Ms Phillips would have required assistance for the first three or four months following her discharge from hospital. He noted that, prior to the motor accident, she was receiving 2.5 hours of domestic assistance per week and that she was provided with additional assistance to help with shopping for six weeks after her discharge from hospital. He opined that Ms Phillips may have required about six hours of additional domestic assistance per week that would gradually have declined. About four months after the motor accident, she would not have required any additional domestic assistance because of the musculoskeletal injuries. Dr Harvey did not consider that Ms Phillips’ motor accident related physical injuries had created the need for any continuing domestic assistance in the future. Dr Harvey confirmed his opinion in his subsequent reports.
On 4 December 2015, Dr Sekel opined that it would have been reasonable for Ms Phillips to require an additional two to four hours of domestic assistance in addition to the four hours she had been already receiving for some years before the motor accident for the initial several weeks following her discharge from Toronto Private Hospital. Beyond that period, Ms Phillips’ functional capacity would have returned to the level of moderate disability that had already existed before the motor accident. That is, beyond two to three months after the motor accident there was no longer a need for increased domestic assistance. Dr Sekel; confirmed his opinion in his subsequent reports.
On 15 January 2020, Dr Vickery noted fluctuating requirements for past domestic assistance due to Ms Phillips’ pain perception and personal stressors. He opined that there was no requirement for domestic assistance or attendant care in the future as a direct consequence of any psychiatric injury suffered in the motor accident. I give Dr Vickery’s opinion in this regard little weight for the reasons already stated.
Dr Bodel did not provide an opinion in respect of the extent of Ms Phillips’ need for care and domestic assistance.
I prefer the opinions expressed by Dr Harvey and Dr Sekel in respect of the need for care and domestic assistance as a result of the motor accident.
I find that the need for gratuitous care and domestic assistance as a result of the injuries Ms Phillips sustained in the motor accident was exhausted within six months. Further, I find that Ms Phillips’ ongoing impairments in respect of her motor accident related left hip and left shoulder injuries had an insignificant impact on her need for gratuitous care and domestic assistance.
Consistent with my findings on injury and the ongoing symptoms and restrictions resulting from the motor accident, I find that any gratuitous care and domestic assistance required and provided by Connor, Ms Younie or others did not exceed the threshold imposed by s 141B(3) of the MAC Act.
Accordingly, I make no allowance for past gratuitous care and domestic assistance.

FUTURE COMMERCIAL CARE AND DOMESTIC ASSISTANCE

The legislation and legal principles

I must be satisfied that an inference can be reasonably drawn that the future commercial domestic assistance claimed will be incurred in obtaining the necessary assistance in the circumstances. I must also be satisfied that the need for such commercial domestic assistance is supported by the evidence and relates to the injury caused in the motor accident.
Section 127(1)(c) of the MAC Act provides that where an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referrable to the value of future services of a domestic nature or services relating to nursing, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate. Section 127(2) of the MAC Act prescribes a discount rate of 5%.

GIO’s submissions

Any care required in the future is not as a result of the motor accident but rather Ms Phillips’ pre-existing medical conditions.
The claim for future care fails.

Ms Phillips’ submissions

There must be an allowance for future care. One could comfortably allow four hours per week for 34 years into the future on the life tables at $34.77 per hour on the relevant multiplier comes to $103,511, rounded down to $100,000.

Consideration and findings

I am not satisfied, on the evidence referred to above and for the reasons stated above, that Ms Phillips has a need for future commercial care and domestic assistance as a result of the motor accident. Any need for care and domestic assistance relate to Ms Phillips’ numerous pre-existing and unrelated serious medical conditions.
Accordingly, I make no allowance for future gratuitous care and domestic assistance.

DAMAGES FOR THE LOSS OF CAPACITY TO PROVIDE DOMESTIC SERVICES

The legislation and legal principles

Section 15B of the CLA relates to damages for the loss of capacity to provide domestic services, in Ms Phillips’ case, to her children.
Section 15B(2) provides that damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that:
(a)    the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose;
(b)    the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity;
(c)    there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants for at least six hours per week and for a period of at least six consecutive months, and
(d)    there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

GIO’s submissions

It cannot be argued that the twins were removed from Ms Phillips’ care as a result of the motor accident.
Any domestic services provided under s 15B of the CLA did not exceed the statutory threshold.

Ms Phillips’ submissions

There is a substantial claim under s 15B of the CLA that has not been rebutted on the evidence. The evidence is that Blake and Chloe were removed from Ms Phillips. If it is accepted that Ms Phillips’ ongoing disability is as a result of the motor accident, then there is an entitlement to damages for loss of capacity to provide domestic services under s 15B of the CLA.
The foster parents were not being paid. They received a gratuity or allowance which assisted them. Blake was in foster care for some time and Chloe was in and out of foster care.
There must be an allowance for damages for the past loss of capacity to provide domestic services under s 15B of the CLA. There should be an allowance of $31,356 for the first six months. Then $16,800 until the point where the children are removed. Thereafter, over a period of four years at an average of $30 per hour for 40 hours per week comes to a figure of $280,000 in respect of Blake and $250,000 for Chloe.

Consideration and findings

Ms Phillips bears the onus of proof under this head of damage.
Ms Phillips has failed to adequately particularise her claim under this head of damage and provide adequate evidence to prove an entitlement to damages.
There was uncertainty about which child was with whom whilst Ms Phillips was hospitalised following the motor accident. There was uncertainty about who the twins were being cared by once Ms Phillips was discharged from hospital following the motor accident.
I have already rejected Ms Phillips’ submission that the twins were removed from her care in 2013 as a result of the effects of the motor accident on her. It was clear on the medical evidence I have referred to that, prior to the motor accident, Ms Phillips was already not coping with caring for her three children. She was struggling to manage her many medical conditions. In particular, she was not coping with the twins’ behavioural issues.
I find that Ms Phillips’ loss of capacity to provide domestic services to her children following the motor accident as a result of her motor accident related injuries lasted less than six months. Further, I find that Ms Phillips’ ongoing impairments in respect of her motor accident related left hip and left shoulder injuries had an insignificant impact on her capacity to provide domestic services to her children after the period of time referred to above.
Consistent with my findings on injury and the ongoing symptoms and restrictions resulting from the motor accident, I find that any domestic services provided by Ms Younie or others did not exceed the threshold imposed by s 15B(2)c) of the CLA.
Accordingly, I make no allowance for the loss of capacity to provide domestic services.

ASSESSMENT OF DAMAGES SUMMARY

Under s 94(1)(b) of the MAC 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:
Non-Economic Loss  $0.00
Economic losses
·         Past loss of earnings (inclusive of superannuation)               $0.00
·         Future loss of earnings (inclusive of superannuation)           $0.00
·         Past treatment (inclusive of s 83 payments):                $26,286.91
·         Future treatment:  $25,000.00
·         Past gratuitous care and domestic assistance:  $0.00
·         Future commercial care and domestic assistance:                $0.00
·         Loss of capacity to provide domestic services:  $0.00
Total of economic losses and non-economic loss                 $51,286.91
Total Damages Assessed  $51,286.91
Ms Phillips’ economic loss is to be reduced by, and GIO is to have credit for, the following payments:
·        Payments made under s 83 of the MAC Act:                $26,218.41
·        Payments made under s 84A or s 130 of the MAC Act: $23,000.00

COSTS AND DISBURSEMENTS

Background

At the assessment conference, GIO requested that my statement of reasons be issued in draft so that it could consider any further submissions it may need to make in respect of legal costs. The statement of reasons was issued in draft to the parties on 16 April 2024 together with the following directions:
“1.     The insurer is to provide any written submissions as to costs by 23 April 2024.
2.     The claimant is to provide any submissions in reply by 30 April 2024 together with a list of claimed disbursements and attached invoices (which were not included in the final bundle of documents).
3.     The insurer is to provide any further submissions in reply by 3 May 2024.
4.     Once all submissions have been received, the Certificate will be completed by the inclusion of a determination of costs.”
On 23 April 2024, GIO provided its written submissions on costs.
Ms Phillips belatedly provided her written submissions on costs on 16 May 2024.
On 23 May 2024, GIO provided its written submissions in reply.

Relevant legislative provisions

Chapter 6, (ss 147-156) of the MAC Act deals with the recovery of legal costs.
Section 149 of the MAC Act deals with the regulations fixing maximum costs recoverable by Australian legal practitioners. Section 149(3) of the MAC Act provides that s 149 does not entitle an Australian legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.
Clause 13 of the Motor Accidents Compensation Regulation 2020 provides the following in respect of the assessment of costs by the Commission:
“(1) In making an assessment and specifying damages under section 94 of the Act in respect of a claim, the Commission may include in the assessment an assessment of the claimant’s costs in the matter, including:
(a)costs for legal services referred to in Schedule 1, and
(b)fees for medico-legal services referred to in Schedule 2.
(2)     An assessment of those costs may also be made, whether or not an assessment has been made under subclause (1), if a court:
(a)does not determine a matter after the issue of a certificate under section 94 of the Act, and
(b)remits the matter to the Commission for further assessment.
(3)     In making an assessment under this clause, the Commission:
(a)may have regard to the amount of any written offer of settlement made by either party to the matter, and
(b)must give effect to:
(i)any requirement of a court under section 151(3) of the Act, and
(ii)clause 12 of this Regulation, and
(c)must have regard to the principles and matters referred to in section 200 of the Legal Profession Uniform Law (NSW).
(4)    The amount of any assessment under this clause must not exceed the relevant amounts set out in Schedules 1 and 2.”

GIO’s costs submissions

I provide a brief summary of GIO’s relevant submissions below.
By way of letter dated 26 October 2011, GIO conveyed an offer of settlement in the sum of $71,187 with no allowance for costs on the basis that Ms Phillips was self-represented at that time. A copy of that letter was attached to GIO’s written submissions.
By way of an email dated 23 May 2012, GIO followed-up Ms Phillips for a response to the offer of settlement conveyed on 26 October 2011. A copy of that email was attached to GIO’s written submissions.
By way of letter dated 22 May 2014, Ms Phillips’ lawyers referred to GIO’s offer of settlement and sought copies of documents held by it so that a history of the claim could be better understood. A copy of that letter was attached to GIO’s written submissions.
By way of letter dated 17 August 2020, GIO’s lawyers conveyed an offer of settlement to Ms Phillips’ lawyers in the sum of $150,000 inclusive of s 83 payments and advances plus regulated costs and disbursements. The offer was left open for a period of 14 days. A copy of that letter was attached to GIO’s written submissions.
By way of letter dated 5 April 2022, GIO’s lawyers conveyed an offer of settlement to Ms Phillips’ lawyers in the sum of $150,000 inclusive of s 83 payments and advances plus regulated costs and disbursements, open for acceptance for a period of 28 days. A copy of that letter was attached to GIO’s written submissions.
By way of letter dated 31 August 2022, GIO’s lawyers conveyed an offer of settlement to Ms Phillips’ lawyers in the sum of $230,000 all-inclusive, open for acceptance for a period of 14 days, following which it was withdrawn. A copy of that letter was attached to GIO’s written submissions.
GIO submitted that the Commission ought to have regard to the amounts of the written offers of settlement made by it when assessing costs, in accordance with cl 13(3)(a) of the Motor Accidents Compensation Regulation 2020.
Relying on its offer of settlement dated 26 October 2011 in the sum of $71,187, GIO’s primary position was that Ms Phillips’ costs and disbursements ought to be assessed as nil. It was a reasonable offer of settlement in respect of Ms Phillips’ claim and was clearly more favourable to her than the outcome she achieved on assessment. Further significant costs were unnecessarily incurred and accordingly, there should be no allowance for the same in the circumstances.
In the alternative, GIO relied on the subsequent offer of settlement on 17 August 2020 in the sum of $150,000. That offer far exceeded the amount Ms Phillips achieved on assessment and she ought not be awarded costs and disbursements beyond 17 August 2020 because she had clearly not bettered her position. She was legally represented at the time and the permanent impairment dispute had been determined. Given that it was 10 years following the motor accident, Ms Phillips was in a position to make an informed decision about the offer with the assistance of her lawyers.
Alternatively, GIO submitted that costs ought to be assessed in accordance with the Motor Accidents Compensation Regulation 2020 but that there ought to be no allowance for costs and disbursements after 17 August 2020.

Ms Phillips’ costs submissions

I provide a brief summary of Ms Phillips’ relevant submissions below.
An order for costs in this matter should be made in the ordinary course in accordance with the Motor Accidents Compensation Regulation 2020.
The general rule is that the costs follow the event and the event being the practical result of a particular claim.[183] An award of costs is compensatory and to compensate a party for the costs of having had to prosecute the claim.[184]
[183] Hans-Egon Bruno Bernhard Metzner v Metzner [2021] NSWSC 1565 at [17].
[184] Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33.
Whilst an award of costs is discretionary, there is, in the absence of special reasons, a general rule and a reasonable expectation of an entitlement to a successful party that costs will follow the event.
Any exercise of the discretion to depart from the general rule must be exercised judicially and involves a broad evaluative assessment of what justice requires.[185]
[185] Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113 at [113]-[114].
Where a previous offer has been made, not accepted and not been bettered, the following factors have been found to be relevant in the exercise of the discretion in respect of costs:
(a)    there is no presumption in favour of the offeror that the offer was unreasonably rejected by reason of it not being bettered;[186]
(b)    absence any presumption arising in favour of an offeror, the question of reasonableness depends on the circumstances of each case;[187]
(c)    the evaluation of the circumstances of each case involves an evaluation of the relevant strengths and weaknesses of each party‘s case as they may have been apparent to the parties at the time the offer was made;[188]
(d)    whether the rejection of a previous offer is unreasonable is not to be assessed with the bright light of hindsight;[189]
(e)    the reasonableness of a refusal to accept a previous offer must be considered by reference to the situation at the time, when the offer was made and not solely by reference to the ultimate outcome of the proceedings;[190]
(f)    where an offer is not accepted, the assessment of the reasonableness of the rejection involves requiring an evaluative judgment;[191]
(g)    the evaluative judgment of the reasonableness not to accept an offer will be a relevant consideration of the complexity of the issues;[192]
(h)    a further consideration in the evaluative judgment relevant to reasonableness is whether the scope and extent of the matters in issue were clearly known and addressed at the time, and[193]
(i)    finally, the situation where the offeror’s case changes after the offer so as to be unfair when the nature of the case at assessment is different from that at the time of the offer.[194]
[186] MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236 at [239].
[187] Leichhardt Municipal Council v Green [2004] NSWCA 341 at [56].
[188] South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [90].
[189] Grynberg v Muller; Estate of Bilfeld [2002] NSWSC 350 at [48].
[190] Crump v Equine Nutrition [2007] NSWSC 25 at [41].
[191] Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [19].
[192] Re MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236.
[193] Equity 8 Pty Ltd v Shaw Stockbroking Ltd [2007] NSWSC 503 at [42].
[194] South Eastern Sydney Area Health Service v King [2006] NSWCA 2006 NSWCA 2 at [85].

The only basis on which GIO contended for a departure from the usual order was by reference to the eventual outcome, which is inconsistent with the approach to be taken in the exercise of the discretion.
Ms Phillips claimed legal costs of $10,472.80 and disbursements of $3,808.20 allegedly in accordance with the Motor Accidents Compensation Regulation 2020. Legal costs were claimed “under scale $270, $370 and $3,602.80 for hearing assessment in addition to $3,000 (being 10 hours) for over two days for advocates fees”. I note that, despite having been requested to do so on, at least, two occasions, Ms Phillips’ lawyers failed to provide a list of claimed disbursements and attached invoices. Further, they did not provide a break-up of the $3,808.20 in disbursements claimed.

GIO’s costs submissions in reply

I provide a brief summary of GIO’s relevant submissions in reply below.
GIO referred to and continued to rely on its written submissions dated 23 April 2024.
GIO acknowledged that the general rule is that costs follow the event. However, it would be appropriate for the Commission to exercise the discretion conferred on it by cl 13(3)(a) of the Motor Accidents Compensation Regulation 2020 in this case.
Having regard to the available evidence and ultimately the outcome, GIO submitted that it was unreasonable of Ms Phillips to reject the offers of settlement made at the various stages of the claim.
GIO noted the cases referred to by Ms Phillips in her submissions as being authority in relation to the exercise of discretion in respect of legal costs and submitted that the Commission may also have regard to Calderbank v Calderbank[195] which established that an offer could be relied on by the offering party to support an application for costs if the outcome of the trial turned out to be less favourable than an offer that had been provided at an earlier date.
[195] Calderbank v Calderbank [1975] 3 All ER 333.
GIO referred to s 149(3) of the MAC Act.
GIO disputed Ms Phillips’ costs as assessed in her submissions and submitted, amongst other things, that they did not appear to accord with the regulated fees set out in the Motor Accidents Compensation Regulation 2020 and provided its reasons.

Consideration and findings

An award of costs is discretionary. However, the general rule is that costs follow the event.
Ms Phillips received an outcome in her favour. Therefore, as a general rule, there is a reasonable expectation on her part that costs will follow the event. However, the outcome for Ms Phillips was less favourable than the series of offers made by GIO over the years. GIO submitted that I exercise my discretion to depart from the general rule. In exercising such discretion, I am required to make a broad evaluative assessment of the circumstances of the case.
Clause 13(3)(a) of the Motor Accidents Compensation Regulation 2020 provides that the Commission may have regard to the amount of any written offer of settlement made by either party to the matter.
Section 149(3) of the MAC Act provides that s 149 does not entitle an Australian legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.
On the available information, Ms Phillips was self-represented in this matter until about 22 May 2014. Thereafter, it appears that the same legal firm represented her albeit by different lawyers within that firm.
The issues in the matter were complex and evolved over time. They also involved disentangling a complex medical case. I am not satisfied that parties had fully engaged with the extent and complexity of the issues at the various times of GIO’s offers.
I have considered the series of offers made by GIO over the years and I am not satisfied in the circumstances that their rejection by Ms Phillips was unreasonable, nor that her costs or any part of them were unreasonably incurred.
I am not prepared to carry out an assessment of Ms Phillips’ costs and disbursements on the information provided. Indeed, I am not required to do so as cl 13(1) of the Motor Accidents Compensation Regulation 2020 provides that the Commission may (not must) include in the assessment an assessment of the claimant’s costs in the matter.
It would be inappropriate to assess costs and disbursements in circumstances where it is clear that I have not been provided with the information required to carry out a proper assessment. I am not prepared to disallow Ms Phillips’ claim for disbursements, as submitted by GIO, knowing that disbursements were incurred but cannot be properly quantified due to the failure to provide a schedule of the same together with copies of invoices and/or receipts as directed. In such unsatisfactory circumstances, I will make an order that GIO is to pay Ms Phillips’ legal costs and disbursements in accordance with ss 149 and 150 of the MAC Act and the Motor Accidents Compensation Regulation 2020 as agreed or assessed.

CONCLUSION

Under ss 94(3) and 94(4) of the MAC Act, I specify the amount of damages for this claim as $51,286.91.
GIO is to pay Ms Phillips’ legal costs and disbursements in accordance with ss 149 and 150 of the MAC Act and the Motor Accidents Compensation Regulation 2020 as agreed or assessed.

LEGISLATION

In making my decision I have considered the following legislation:
(a) Personal Injury Commission Act 2020;
(b) Personal Injury Commission Rules 2021;
(c) the MAC Act;
(d) Motor Accidents Compensation Regulation 2020, and
(e) the CLA.

[2024] NSWPIC 300

3 June 2024