Aax v QBE Insurance Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAX v QBE Insurance Ltd [2021] NSWPIC 141
APPLICANT:	AAX
RESPONDENT:	QBE Insurance Ltd
MEMBER:	Mr Terence Stern
DATE OF DECISION:	24 May 2021
CATCHWORDS:	MOTOR ACCIDENTS- Claims assessment; whether the proposed settlement should be approved under section 6.23(2)(b) of the Motor Accident Injuries Act 2017; widow; pedestrian; contributory negligence; turned right without his right indicator light on; no witnesses; no crossing there; treatment only by GP; pain in multiple areas; pre-morbid mental health; anxiety and depression; diagnosis of husband’s cancer four years before; hypersensitive; soft tissue injuries; shop assistant; after the accident walked about 15 minutes until she arrived home; insured not keeping a proper lookout for pedestrians; cash income of $370 per week; proposed settlement of $100,000; significant functional overlay causally related to the accident which is chronic; Held- offer is appropriate and should be approved.
DETERMINATIONS MADE:	1. This proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the Act). 3. The proposed settlement complies with cl 7.392 and cl 7.393 of the Motor Accident Injuries Guidelines.

NATURE OF THE DISPUTE

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the Act, about whether, pursuant to section 6.23 of the Act, the proposed settlement offer made by the Claimant on 21 December 2020 to settle her claim on payment of the sum of $100,000 inclusive of weekly payments for statutory benefits and accepted by the Insurer on 23 December 2020 should be approved.

INTRODUCTION

The Claimant was born on 00 March 1964 and is a widow.
At about 6:00pm on 9 May 2018, the Claimant, a pedestrian, alleges that she sustained injury as a result of being impacted by the vehicle driven by the Insured Driver as a result of which she alleges she sustained injury, loss and damage.
The Claimant has not had the benefit of legal representation, although she may have had some incidental legal advice.
The Insurer alleges contributory negligence of 50% but does not take into account or seek a reduction for contributory negligence.
The Claimant’s injuries have not been assessed at the Medical Assessment Service (MAS).
The Claimant told me in the course of the first Preliminary Conference that she did wish to resolve the matter and was happy to accept the sum of $100,000 inclusive of weekly payments for statutory benefits in full settlement of her claim (i.e., payments for statutory benefits will be deducted).
Both parties have requested that the Personal Injury Commission (PIC) approve this settlement.

THE QUESTION BEFORE ME

The question for me to resolve is whether or not this settlement should be approved.

LEGISLATION AND GUIDELINES

Legislation relevant to whether or not proposed settlement should be approved in the circumstances where the Claimant is unrepresented:

Section 6.23 of the Act provides:

“6.23 Restrictions on settlement of claim for damages

(1) A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

(2) A claim for damages cannot be settled unless--
(a)the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b)the proposed settlement is approved by the Commission.”

Relevant Guidelines under the Motor Accident Guidelines 2021 (the Guidelines)

I set out clauses 4.123-4.126 of the Guidelines (emphasis added):
“4.123 In acting to resolve a claim justly and expeditiously, insurers should continually review and identify whether a claimant who is eligible for economic and/or non-economic loss has sufficiently recovered to enable quantification of the claim, and if so, make a reasonable offer of settlement. A reasonable offer is one that is based on the facts and evidence, and is reflective of the injuries and losses the injured person has suffered as a consequence of the motor vehicle accident.

4.124 The insurer must make a reasonable offer of settlement to the claimant, as required by Division 6.4, section 6.22 of the Act, unless it wholly denies liability for the claim. The offer of settlement must be recorded on the claim file.

4.125 The insurer’s initial and final offer of settlement must:
(a)be set out in writing to the claimant (and copied to their legal representative where the claimant is represented)
(b)list amounts (including zero) offered for economic loss and noneconomic loss separately or include a method for determining an amount of damages
(c) where the insurer admits liability for only part of the claim, include details necessary to determine the extent to which liability is admitted
(d) where applicable, identify as a separate amount any allowance for the claimant’s legal costs and disbursements State Insurance Regulatory Authority 72
(e)where applicable, identify any deductions that have been made or are likely to be made, and how they have been determined or calculated
(f)include a reference to the insurer’s duty under the Act to make an offer of settlement on a damages claim.

4.126 Under section 6.23(2) of the Act, a damages claim cannot be settled until the Commission has approved it, unless the claimant is legally represented. Where the claimant is not legally represented, the insurer must proactively approach the Personal Injury Commission to have the settlement approved.”

I further set out clause 7.38 of the Guidelines below (emphasis added):
“7.38 Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a)the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act
(b)the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by a claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”

Relevant legislation with respect to the issue of contributory negligence

In making my decision I have considered the following legislation, regulations and guidelines:
·        Motor Accident Injuries Act 2017 (NSW) (the Act)
· Motor Accident Injuries Regulation 2017
·        Motor Accident Guidelines 2021 – Version 7
·        Civil Liability Act 2002

Relevant case law with respect to contributory negligence

The common law applies in relation to a determination of the degree of default for the purposes of contributory negligence.
Most of the common law decisions in respect of contributory negligence are in relation to the apportionment of damages and such apportionment is made by such percentage as the court thinks just and equitable in the circumstances.
Section 5R of the Civil Liability Act 2002 provides:

“5R   Standard of contributory negligence
(1)    The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm
(2)     For that purpose:
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time”

The common law applies in relation to a determination of the degree of default for the purposes of contributory negligence.
Most of the common law decisions in respect of contributory negligence are in relation to the apportionment of damages and such apportionment is made by such percentage as the court thinks just and equitable in the circumstances.
In Cooper v Nominal Defendant [2017] NSWDC Neilson DCJ [at 32] said:

“……an effect of s.5R is to pick up and apply, as best one can, to the conduct of the person who suffers harm principles relevant to determining negligence on the part of the person owing a duty of care. That would include the general principles set out in s.5B and 5C. That in turn would be consistent with the fact that Div.2 of Part 1A applies to motor accidents. Significantly s.3B(2) of the Civil Liability Act provides at s.49 also applied to motor accidents.”

At 34 His Honour referred to the judgment of the High Court of Australia in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison of culpability for the damage involves the comparison both of culpability i.e. of the degree of departure from the standard of care of the reasonable man……and the relative importance of the acts of the parties in causing the damage…….it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”

In Singler v Ferguson [2015] NSWDC 38 Mahony SC DCJ set out the legal principles applicable [116]:
“[116]The plaintiff bears the onus of proof of establishing that the defendant was negligent. Negligence is to be determined pursuant to the provisions of the CLA. …..
[117]…..the High Court held in Sibley v Kais [1967] HCA 43……that the regulations relating to traffic rules were not definitive of the respective duties of drivers of vehicles to each other, nor was the breach of such regulations conclusive as to the performance of a duty owed to other road users.”
At page 427 the court said:
“The common law duty to act reasonably in all the circumstances if paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations, for there is no general rule that in all circumstances a driver can rely upon the performance by others of the duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example, by performing his duty under a regulation, must remain a question of fact to be judged in all of the particular circumstances of the case.”
His Honour continued:
“[35] The exercise of reasonable care requires, as the majority observed in Manley v. Alexander …..reasonable attention to all that is happening on or near the roadway that may present a source of danger. That in turn requires ‘simultaneous attention to, and consideration, of a number of different features of what is already or may later come to be, ahead of the vehicles’ path.
[36] The driver is not required……to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such event……the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37]….nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the limits of visibility and control so as to be able to react to whatever ventures into the vehicle’s path…..”

At [121] referring to the Court of Appeal decision in Dungan v Chan [2013] NSWCA 182:
“15.A driver is entitled to assume that others will observe the rules of the road. …….as a general rule a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue the real question is, whether, in all the circumstances, the person charged with negligence exercised a degree of care that those circumstances required……”

In the case in question the court had to determine whether the defendant breached his duty of care to the plaintiff by proceeding into the intersection with a green light. His Honour noted that the defendant had a duty to take reasonable care to avoid risk of injury to the other road users who were taking care for their own safety. Applying s 5B and 5C of the Civil Liability Act 2002 the test His Honour said is what precautions would a reasonable driver with a green light facing him take. In that case the road in question was also a major arterial road while the street intersecting with it was a minor road. His Honour found it was reasonable for the defendant to proceed through the intersection. His Honour noted:
“While there is always a possibility that other drivers will run a red light there was no reason for the defendant to assume that it would happen here. For that reason I find that there was no breach of the defendant’s duty of care in the circumstances.”
I have also noted Knight v Maclean [para 16 above of the Insurer’s submissions].
In T & X Company Pty Ltd v Chivas [2014] NSWCA 235 Basten JA (with Barrett JA agreeing) said [28]-[29]:
“[28] ‘…some jaywalkers who proceed to cross the road otherwise than at a marked crossing … do so with full appreciation of the risks. … Some may be young and inexperienced, others old and less agile…
… Some may be expected to anticipate how drivers will behave… but others whether because they do not drive or because they have a disability… may face greater risks. A driver who fails to take the variability of such circumstances into account, when faced with persons crossing the street against lights or otherwise unwisely, fails to take reasonable care in the handling of a motor vehicle.’
[29] In applying the principles set out in s 5B of the Civil Liability Act (NSW), it is necessary in assessing the precautions a reasonable driver would take to consider the likely seriousness of the harm which might eventuate from a collision with a pedestrian and the burden of taking precautions to avoid the risk of harm, that was in the present case by slowing down.”
His Honour continued at [40] referring to the trial judge:
“Although this was not a case of a car travelling at a high speed, it was a case of a driver travelling at a speed which was excessive in all the circumstances, failing to make any attempt to slow down or to take other evasive action…on the other hand, Scott Chivas created the situation of danger by stepping out onto the road, whether one describes his movements as a walk or a jog, where it was not safe to do so…”
His Honour then at [41] went on to identify the relevant legal principles referred to in
s 5R of the Civil Liability Act 2002.
His Honour then referred to the decision in Podrebersek v Australia Iron and Steel Pty Ltd 59 ALJR 492 at [43]:
“The making of an apportionment as between the Plaintiff and the Defendant of the respective shares in the responsibility of the damage involves a comparison base of culpability, i.e. of the degree of departure from the standard of the reasonable man … and of the relative importance of the acts on the parties in causing the damage…”
His Honour then referred to what Handley JA said in Talbert-Butt v Holloway (1990) 12 MVR 70 at [44]:
“The evaluation and assessment of the culpability of the Plaintiff and the Defendant must take proper account of the fact that … the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving … was in charge of a machine that was capable of doing great damage to any human being who got in his way.”
His Honour then said at [45] that caution was necessary with respect to authorities pre-dating the Civil Liability Act 2002.
His Honour continued at [53] to state that there were difficulties in applying the same legal principles in determining the negligence of the defendant and whether the injured party was contributorily negligent in failing to take precautions against the risk of harm.
His Honour then said at [54]:
“The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety. It appears to have been this factor, however, which led the trial judge to place a greater share of responsibility on the driver than the pedestrian.”
In Boral Bricks Pty Limited v Cosmidis (No 2) [2014] NSWCA 139, Basten JA, with whom Emmet JA agreed, referred to section 5R of the Civil Liability Act 2002 at paragraph [99] – [100]:
“No distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, while from the perspective of the pedestrian, it was the likelihood of serious harm that was to be considered. If the plaintiff was aware, or ought to have been aware, of the presence of a large forklift operating in the area and the forklift driver ought to have been aware, or should have been aware, of the likely presence of pedestrians and, if each were careless, liability should be shared equally.
[100] A purposive approach to the operation of s 5R (s 5B) requires that this approach be adopted…”
McColl JA would have assessed contributory negligence at 10% (as against 30% from the majority) said [47]:
“The correct legal question in determining the issue of contributory negligence in accordance with s 5R is “whether a reasonable person in the position of the [plaintiff], i.e. having the knowledge which the [plaintiff] had, or ought to have had, was negligent”...”
Again at [48] her Honour referred to s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) which provides:
“the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage.”
Her Honour continues [49] that s 9 is also part of the enacted law as to contributory negligence captured by s 138(1).
Her Honour concluded [70]:
“Turning to the apportionment issue, it is relevant to take into account in assessing the parties’ relative culpability both the appellant’s control of the site and implementation of the systems in which its employees as well as entrants were required to work as well as the fact that a driver is “in charge of a powerful vehicle [and has] obligations to exercise care for pedestrians in the position of the appellant”…whereas the pedestrian’s conduct, although contributorily negligent, does not endanger the driver of the vehicle or anybody else: Pennington v Norris [1956] HCA 26 …”

Evidence – statement evidence

The Claimant gave a description of how the accident occurred in her Application for Personal Injury Benefits (APIB) at A6.
The Claimant stated:
“I was crossing Park Road. A car which was making a right turn to Park Road from Rowley Street hit me. I observed the traffic carefully before crossing the road. The car was stopping on the Rowley Street. It’s [sic] right indicator was off. The car suddenly started and made a right turn at high speed to the place where I was crossing the road. The driver admitted that he did not check the right hand direction of the Park Road and he did not see me before making the start. The driver said to me at the accident scene as “I checked off my left side only. I did not check of [sic] the right side.”

The Claimant’s further description of the accident in her Statement of Sunday 18 April 2021:
“●      On Wednesday the 9th of May 2018 at approximately 6pm in the evening I was struck by a white Hyundai Veloster on park road in Burwood.
·        I was patiently waiting to cross the road on my way home on Gordon street and I observed very carefully for st [sic] least 1 minute AC’s vehicle sitting stationary at the end of Gladstone street. I was not sure why he was not moving in the middle of the road with no cars around and after observing his vehicle for 1 minute I decided to cross the road.
·        There was no traffic at all when I crossed and then AC, then proceeded to turn right onto park rd from Gladstone st without his right indicator light on at a rapid pace as he straightened onto park rd when I was hit by his vehicle.
·        At the moment of impact, I was very lucky in hindsight not to have suffered a fatal head injury as the impact of the vehicle hitting me caused me to fall head first into the concrete.
Fortunately, I cushioned the fall to the ground with my outstretched arms and hands to protect my skull.
·        I was in utter shock and fear and my only thought was that I thought I should be going to the hospital. When AC exited the vehicle, I expected him to offer to take me to a hospital, but he did not make such offer.
·        …
·        Crucially, he disclosed and conceded to me whilst saying ‘sorry’ that he had observed the left side of the park rd but he did not observe the right side with his head check when he struck me with his vehicle. …”

AC (Mr AC), the driver of the insured vehicle, provided a statement on 16 June 2018 which he signed.
I briefly summarise the relevant parts of the Statement by reference to its paragraph numbers:

“7.     … was driving vehicle XXXXX X…
10.    The other party… was the Claimant… a pedestrian walking alone… wearing dark clothing.
14.    The incident occurred at about 6:10pm on 9 May 2018 on Park Road, Burwood… just south of Gladstone Street.
20.    … No witnesses.
26.    … Familiar with the roadway.
27.    … I travelled East on Gladstone Street and came to a stop at the Give Way sign at the T-Intersection with Park Road. I put my right indicator on at the end of Gladstone Street …
28.    Gladstone Street is a single lane. Park Road is also a single lane and has a lane for parked cars … parked on both side [sic].
29.    I waited at this intersection for well over 1 minute in heavy traffic …
30.    When I received a break in traffic I began my right turn. As I was only focusing on cars on Park Road at no stage did I see the Claimant before I began my right turn. As there are no crossing here I just had to focus on vehicles going north and south on Park Road. …
31.    It was very dark where the accident occurred…
32.    … I made my right-hand turn.
The Claimant has then just appeared to the front passenger side of my car as she was attempting to cross Park Road from the Eastern curb to the West.
34.    I was… going about 10k per hour… and I had almost straightened onto Park Road when the Claimant tried to cross, and she has walked into the path of my car. …
35.    I reached and hit the brakes, and I was able to stop right about the same time I hit the Claimant with the front passenger side of my bumper.
36.    The impact did not knock her over…
37.    I had very little time to react… she should have looked and seen that I was waiting to make a right-hand turn. I did not see her as I was only looking for vehicle on [sic] Park Road when I had a gap…
39.    The first time I saw the Claimant was right when she had just stepped out in front of my turning car. She would have only just stepped out… I was only going slow, so I was able to stop right as I made minor contact with the Claimant and didn’t run her over. …
41.    … I did not see any visible signs of injury.
42.    She only looked in shock.
43.    After about 3 or 4 minutes, I watched the Claimant walked [sic] away.”

The Claimant made a Statement (20 April 2021 at 8:13pm) as to her consequential injuries and disabilities which I very briefly summarise:
(a)    Treatment only by GP, Dr Janet Kwak;
(b)    Pain in multiple areas. … neck pain, makes it painful to look up or down …;
(c)    Throbbing pain in neck when Claimant eats;
(d)    Much pain in right shoulder and avoids using right hand side to lift things. Restricted to one kilogram. Even lifting one kilogram can occasionally cause pain, therefore has refrained from using right hand and right shoulder to carry groceries or a pan;
(e)    Overuse of right hand and right shoulder has caused pain on the left;
(f)    Shooting pain in the back from the middle down to the left leg. Even lifting something as light as a bag of sweet potatoes would aggravate her back and left leg;
(g)    Left leg is no longer functioning as before … incessant pain and numbness from quad muscle to thigh right down to ankles;
(h)    Equilibrium significantly impaired affecting strength, grip, drops things, loses control when cooking, reduction in dexterity;
(i)    Drops food while eating;
(j)    Weakness;
(k)    Malnutrition, as cannot make meals. Has great fears for her long-term health;
(l)    Describes the mediation she is taking;
(m)     Consequential impact on her mental health.

Chronology of the Claimant’s medical condition both before and after the subject accident

The Insurer’s solicitor has prepared a chronology, commencing on 16 February 2012 through to 25 June 2020. The purpose of this chronology of course is to seek to demonstrate that the Claimant’s current medical condition and her condition since the accident has been heavily influenced by other issues in her general health, particularly with respect to the question of whether the Claimant suffered significant pre-morbid depression and the argument that her current psychiatric condition is largely the result of her pre-morbid mental health. I will not seek to extract or summarise the chronology.
Many of the conditions are trivial, i.e. 16 February 2012 runny nose for two to three months, 18 May 2012 attended Concord Hospital with a dry cough. Flu last week. 8 December 2012 coughing three months.
Some of the conditions noted are of more significance, i.e. 20 December 2012, GP mental health care plan. Depression and grief. Referred to Ms Myong Dee Conceicao (presumably a therapist or psychologist).
I note also the referral to Anthony Pignataro for management of anxiety and depression since the diagnosis of her husband’s cancer four years before (20 December 2012).
It is sufficient to note that I have read and taken into account all of the entries in my consideration of whether or not settlement should be approved.

Reports by treating medical practitioners

Dr Kyung-Hee Janet Kwak reported on 24 September 2018. She had been asked to justify a request for authorisation of a cortisone injection for the Claimant.
Dr Kwak’s colleague, Dr Kim, had noted ongoing pain in many regions, including neck pain and right shoulder/arm pain.
When Dr Kwak had first reviewed the Claimant on 26 July 2018, she complained of widespread pain, mostly in her neck, right shoulder/arm. Examination showed a reduction in range in movement, consistent with rotator cuff tendinosis.
Dr Kim had trialled anti-inflammatory medications which resulted in gastrointestinal side effects, hence the request for an approval of an injection.
Dr Kwak concluded that symptoms were entirely suggestive of bursitis from trauma, present and persisting since the first review after the motor vehicle accident.
Dr Kwak believed the injection would give the Claimant a significant pain relief and noted that she had suffered from pain since the day of the accident.
Dr Kwak listed the Claimant’s current medications, including Endep and Naprosyn.

Evidence- medico-legal reports for the insurer

Dr Frank Machart, orthopaedic specialist, assessed the Claimant for the Insurer and provided a report dated 14 April 2021.
Dr Machart noted the Claimant’s current symptoms on page 2.
He conducted a physical examination. He noted generally that the Claimant was:
“Hypersensitive, reporting pain on touching skin and, at times, before touching skin.”
On examination of the cervical spine, there was no spasm, deformity, muscle guarding, tenderness or asymmetry present. Although the whole of the hand was hypersensitive, there was no asymmetrical loss of strength.
On examination of the lumbar spine, there was no spinal deformity or guarding, although movement was diminished by 2/3rds from expected normal.
An MRI of 18 July 2018 noted degenerative changes at 3-4, 4-5, 5-6 and 6-7 and was reported as showing a small L5/S1 disc protrusion, subligamentous with no neural impingement and with mild degenerative change at L5/S1 facet joint.
Dr Machart diagnosed soft tissue injuries. The clinical presentation was largely superseded by anxiety. There was no objective or contemporaneous evidence of substantial injury. She was not hospitalised, but symptoms increased in severity. The imaging studies did not show evidence of structural, significant or severe injury in line with her narrative. He expected the soft-tissue injuries were to resolve within two years of the accident. He opined that her presentation was best explained by anxiety and non-organic illness behavior.
Dr Graham George, psychiatrist, reported to the Insurer on 7 May 2020.
He took a history that, prior to the accident on 9 May 2018, the Claimant worked as a shop assistant, but did not provide details as to where she worked and said that she could not remember, but did work at Westfields at Blacktown. She cited memory problems.
She said that, at the time of the accident, she was struck on the right side of her body and fell to the ground. She recalled putting her hands on the ground and pushing herself upright. She reported that, after the accident, she gathered up her belongings and walked about 15 minutes until she arrived home. At the time, she complained of pain in her neck, shoulders, right upper limb and both knees.
She admitted that, after the death of her husband, she had been assisted by a psychologist, but denied taking anti-depressant medication.
Dr George was unable to make a psychiatric diagnosis related to the accident.
He noted inconsistencies in her presentation, from a psychiatric point of view. He did not believe that she presented as a consistent historian, felt it was significant that the impact appeared to be minor and noted that she was able to walk home over a 15-minute period.
Ms Kwon, a psychologist, reported to the Insurer on 3 April 2019. The Claimant reported being troubled by irritability, forgetfulness and anxiety, reporting hyperarousal and hypervigilance when walking as a pedestrian. She presented with flat effect and was labile.
Ms Kwon noted that:
“Recurrent chronic pain has resulted in limited mobility… there had been considerable time in the recent past that she had been bed-ridden and had been unable to move. This extended period of isolation was particularly detrimental to her psychological and emotional wellbeing. She reported suicidal ideation…”
Ms Kwon continued that DASS-42 was administered and results showed extremely severe elevation in depression, anxiety and stress.
Ms Kwon continued that the Claimant’s ability for unrestricted travel was impaired by chronic pain, hyperarousal and hypervigilance.
Ms Kwon diagnosed symptoms of anxiety and depression. Further, she presented with a number of symptoms associated with Post-Traumatic Stress Disorder, but did not meet the full diagnostic criteria.
The Claimant’s symptoms were a direct result of the accident. She would benefit from treatment.
With adequate treatment, she had a fairly good prognosis.
A psychologist, Ms Mihui Kim of Rehab Focus, reported for the Insurer on 3 April 2019.
She noted that the Claimant presented as distressed, with a change in her quality in life. She had a flat affect.
Current chronic pain had resulted in limited mobility. She reported suicidal ideation without a plan.
DASS-42 was administered and showed an extremely severe elevation of depression, anxiety and stress. Her ability for unrestricted travel was impaired due to chronic pain and hyperarousal and hypervigilance as a pedestrian.
The findings on a Yellow Flag Assessment scored a total of 149, indicating a high level of risk of the symptoms becoming permanent and a decreased likelihood of the injured worker returning to work.

Submissions by the insurer

The Insurer’s solicitor made a lengthy initial submission. It sets out the Background, refers to the settlement reached and then proceeds to summarise the procedural considerations. It notes that the Insurer had admitted negligence but submitted that the facts justify a conclusion that the Claimant was negligent to the extent of 50%.
It then proceeds to refer to the statements by the Claimant and the Insured Driver.
At 4.8, it refers to the concession that the Insured focused on vehicles going North and South and that this indicated he was not keeping a proper lookout for pedestrians. The Insurer concedes that the Insured had an obligation to keep a proper lookout for possible presence of pedestrians.
At 4.9, the Submission refers to the “Podrebersek Test”.
At 4.10, the Submission argues that the Insured was clearly there to be seen by the Claimant, and that she conceded as such [sic: read “as much”] in the APIB. It continues that the ancillary [sic: read “corollary”] is that each party was in a position to keep a proper lookout for the other.
At 4.11, there was a pedestrian crossing about 20 meters away.
At 4.12, that the Claimant chose to cross the road between parked cars wearing dark clothing at night.
At 4.12, crossing at night in dark clothing, otherwise than on the pedestrian crossing, represented a “moderate departure” (my emphasis) from the standard of care expected of a reasonable person.
At 4.14, the Claimant failed to keep a proper lookout.
At 4.15, the Claimant was equally responsible for the accident.
The Submission then proceeds to deal with the Claimant’s pre and post medical condition. It refers to previous depression and its causes.
It refers to the Claimant’s variety of pre-morbid conditions [5.5].
At 5.6, it refers to the Claimant’s limited post-accident treatment which has been wholly conservative.
The Submission then deals with the report of orthopaedic surgeon, Dr Frank Machart, of 14 April 2020, who concluded that the accident caused soft-tissue injuries.
It refers to Dr Machart’s opinion of non-organic illness behaviour.
At 5.10, it refers to Dr Machart’s assessment of 1% WPI for the right shoulder and nil for the neck and low back. It referred to Dr Machart’s comment that the Claimant’s prognosis was generally poor due to non-organic factors.
At 5.11, it refers to the opinion of the qualified psychiatrist, Dr Graham George, in a report of 7 May 2020, that the accident did not give rise to any need for treatment, incapacity for work or permanent impairment from a psychiatric perspective.
At 6.1-6.4, the Submission argued that the accident caused minor soft tissue injuries.
The Submission refers to the Claimant’s propensity to exaggerate and catastrophise. It also refers to the report of Rehab Focus of 11 November 2019, that the Claimant displayed pain behaviour.
At 6.4, the Submission refers to the Insurer’s concession in the context of the claims for statutory benefits, that the Claimant suffered from a non-minor injury, being Post-Traumatic Stress Disorder.
The Submission refers to the non-availability of non-economic loss damages.
Further, it refers to the real likelihood that a DRS Medical Assessor would also be unable to reconcile the discrepancy between the severity of the Claimant’s alleged disabilities and her injuries.
The Submission continues that it is unlikely that the Claimant would achieve an entitlement to non-economic loss damages by virtue of her physical injuries.
The Submission then deals with the Claimant’s psychiatric injuries, and similarly argues that it is very unlikely that the Claimant would establish an entitlement to non-economic loss damages due to any psychiatric condition said to be caused by the accident.
Dealing with economic loss, paragraph 8.1-8.5, the Submission notes that the Claimant had refused to tell Dr George where she worked. It comments that her tax returns declared cash income only.
At 8.2, the Tax Returns for 2017 and 2018 prepared on 9 August 2018, declared cash income of $370 per week and adds that there is no evidence that those returns were ever lodged with the ATO.
At 8.3, it refers to “significant uncertainty” whether the Claimant was working as alleged.
As to most likely circumstances, the Claimant would not have been able to maintain her employment for an extended period due to her non-accident related conditions.
At 8.5, the Submission argues that the Claimant’s injuries did not preclude her from working.
At 8.6-8.8, the Submission argues that the Claimant failed to mitigate.
At 8.9, the Submission refers to the Claimant’s unrelated conditions and the question of whether she would continue to reside in Australia. It argues that the reduction for vicissitudes should be more than 15%.
The Submission then proceeds [9] to refer to the relevant Guideline and legislation.
Considering the appropriateness of settlement, the Submission argues that credit would be in issue if the matter were to be contested.
The Submission then sets out a calculation of the Claimant’s damages arriving at $68,267.24 reduced for contributory negligence to $34,133.62.
At 9.13, the Submission argues that the proposed settlement of $100,000, inclusive of weekly payments of statutory benefits, represents an outcome which is very favourable to the Claimant.

The insurer’s supplementary submissions of 14 April 2021

I briefly summarise, adopting the numbers:
[2.1] The Insurer has made payments for statutory benefits of $34,899.12 to be deducted from the settlement pursuant to s 3.40 of the Act.
[3.1] The breakdown of the settlement offer is:
Past Economic Loss
The Insurer assumes 19 hours work per week before the accident earning $370.00 net per week at $19.50 per hour. From 9 May 2018 until 22 February 2019, relying on the Certificates of Capacity, the Insurer argues that the Claimant had the ability to work 12 hours a week on average, yielding a residual earning capacity of $234.00 net per week and a loss of $5,576.00 in that period.
The Certificates of Capacity for 23 February 2019 onwards certify nil capacity. The Insurer argues that these certificates cannot be accepted as it would be implausible for the Claimant to have retained a work capacity for 12 hours per week for 41 weeks and thereafter decondition completely, to the extent that she would not be able to continue. The Insurer argues that the only possible conclusion is that the deconditioning was a result of the Claimant’s failure to maintain an active lifestyle and her failure to follow the recommendations of the treatment providers.
The Insurer further argues that it would be reasonable to accept that for the period 23 February 2019 to 14 April 2019, the Claimant would have been able to continue working 12 hours a week, earning $234.00 net per week and thus losing $106.36 net per week had she followed the treatment recommendations and mitigated her losses.
As to future economic loss, for the purpose of settlement, the Insurer allows $78,967.00 on the basis that her residual injury capacity would have diminished as her accident-related injury deteriorated, yielding a net weekly loss of $225.00 ($370.00 - $145.00).
The calculation is [$225.00 x $412.90 x 0.85] giving, after vicissitudes at 15%, $78,967.13.
The total of the two amounts is $99,775.00 rounded to $100,000.00.
No amount is deducted for contributory negligence for the purposes of settlement only.

The Claimant’s response to Insurers submissions

The Claimant has commented on the Insurer’s solicitor’s Submission and I briefly summarise her response below.
At 5.3, she refutes claims that her son suffered from depression.

Refers to the Insured Driver’s statement and notes the correct date of the accident.
Refutes claims that the traffic was busy and states that there were no other moving vehicles at the time.
Watched the Insured Driver’s vehicle carefully. He was stationary for well over a minute. Decided to cross the road after observing him for well over a minute. He then abruptly maneuvered sharply when turning right into her at a speed of about 20km per hour.
Refutes the Insured Driver’s Statement that he had his right indicator on. She did not observe the vehicle making any indication of a turn. Refers to the Driver apologizing to her and admitting that he checked the left side of the road, but not the right. Refutes that he was only traveling at 10kmph. He was straightening up before impact which would have accelerated the speed.
Asserts that she did fall and that the impact was so powerful that she fell head first onto the ground, only avoiding a “fatal head injury” by her quick reactions to cushion the impact with the ground with her hands and arms.
Refutes claims that she did not check the driver was looking to make a right-hand turn.
[Note: I have not referred to statements of opinion or conclusions by the Claimant].

Consideration

My role is not to make a formal conclusion as to the precise extent of the contributory negligence but to take into account whether or not the Claimant was probably guilty of contributory negligence, the likely extent and whether or not as much as 50%, in coming to a view as to whether or not the proposed settlement is appropriate and whether or not it should be approved.
I refer to section 5R of the Civil Liability Act 2002, and note that the standard of care required of the Claimant at the time is that of a reasonable person in her position, and the matter is to be determined on the basis of what she knew or ought to have known.
The Claimant had observed the vehicle stationary for at least a minute (on her evidence).
As the Insured’s solicitor noted in his Submission, Podrebersek is authority for the proposition that apportionment for contributory negligence involves the comparison of culpability for the damage, that is the degree of departure from the standard of care from the reasonable person and the relative importance of the acts of the parties in causing the damage, and that it is the whole conduct of each negligent party which needs to be considered.
Although under the current caselaw, the fact that the injured person is a pedestrian no longer has the significance that it used to, the evidence suggests that there was a significantly higher degree of responsibility for the cause of the accident on the part of the driver than that of the pedestrian. The driver certainly did not keep a proper lookout and, indeed, did not observe the pedestrian or keep a lookout in her direction at all.
The Claimant in fact had been keeping a proper lookout and had observed the Driver for about a minute, but before the accident actually happened, should have been more careful in stepping out onto the road.
The Claimant is quite adamant about being knocked over, and she gives some graphic detail as to that aspect of the accident.
There were no independent witnesses, but it is likely that the Claimant would be accepted on her account of how the accident happened.
On the other hand, if the Driver had been traveling as fast as the Claimant argues, it is likely that there would have been more significant injuries.
The history taken by the psychologist, Rose Kwan, on 3 April 2019, refers to the Claimant being hit on the right hand side and falling to the ground.
The history taken by Ms M Kim of Rehab Focus on 15 July 2018, provides the following history:
“On 9 May 2018, at… 6:00pm, she had finished her grocery shopping and was about to cross the road… as she noticed the stationary vehicle, so she crossed the street thinking it was safe to do so… as soon as she walked onto the road, the vehicle that was previously stationary drove towards her and, as a result, she “froze”, unable to move, and although the driver… attempted to brake hard, she was hit on the right side of her body and fell to the ground.”

The Patient Health Summary of Dr K E-Hwan Kim contains the following entry for 11 May 2018 (emphasis added):

“mva ON 09/05/18
While crossing the street, was hit by car on right side of body. Fell to ground after being hit.
First visit to doctor after accident.
Working part-time at time of accident. Works in shop in sales.
Current symptoms:
Pain in: left ankle, left foot dorsum; right lower leg; right arm, thoracic back; left hand; back of neck.
Dyspepsia.
Examination:
Can wt bear
ROM good
Locally tender in painful areas.
Bruise over medial ankle.
No neuro signs.”

The history given to Dr Frank Machart, who examined the Claimant for the Insurer, is consistent.
I find that the Claimant’s account is more credible than that of the Insured Driver. First, she has from the very beginning, including in the GP clinical notes, said that she was struck with enough force to cause her to fall to the ground and that she did fall, and this is more likely to be the case than the account given by the Driver. Indeed, the Driver’s assertion that she did not fall to the ground, and that his speed was only 10kmph must be called into question, given the stark discrepancy between the consistent account of the Claimant and that of the Driver.
With respect to the submission of contributory negligence being at 50%, though it is my role to take into account the likely extent of contributory negligence, I do not need to make a formal finding on that. I do, however, indicate that if I were to make a formal finding, it would be more in the order of 15% than 50%.
The Insurer disavows any reduction for contributory negligence. Given the heavy reliance on 50% contributory negligence in the initial submissions, one must have a suspicion that the Insurer may well have taken contributory negligence into account when formulating its starting figures. Noting, however, the representation by the Insurer’s solicitor that there has been a nil deduction for contributory negligence, I will give the Insurer the benefit of the doubt as to that question.
The Claimant has not obtained any independent qualified expert opinion, nor has she sought to make any application to MAS for assessment of the extent of Whole Person Impairment or for assessment of a treatment dispute.
The only independently qualified expert evidence is that of Drs Machart and George with respect to the Claimant’s orthopaedic condition and the extent of her psychiatric injuries.
On the balance of probabilities, it is likely that the Claimant does have, as Dr Machart opined, soft-tissue injuries only which are likely to resolve. She also has a significant functional overlay causally related to the accident which is chronic.
The psychiatric expert opinion and the opinion of the Rehab Focus assessor does not support the proposition that the Claimant has sustained serious psychological injury which would put her over 10% WPI.
If this matter went to assessment, the Claimant may strike real problems with respect to the computation of her damages, not so much by reason of the contributory negligence argument, but rather by reason of the inherent weaknesses in aspects of her case with respect to past and future economic loss and with respect to the nature and extent of her injuries and disabilities.
On the other hand, I refer to the conclusion of Ms Kwon at paragraph 69-75 inclusive and I note the findings of Ms Kim at paragraph 76-80 inclusive.
It is unlikely that the Claimant would achieve, if she were to make an application, assessment of Whole Person Impairment in excess of 10%, either on physical or psychiatric injury grounds.
The Claimant has made it quite clear that she does wish to resolve her case in accordance with the settlement and it was in fact she who made the settlement offer, which was accepted by the Insurer.
In referring to clause 4.123 of the Guidelines, I conclude that the Claimant has sufficiently recovered to enable quantification of her claim and to allow me to conclude that the offer made is one based on the facts and the evidence and is, on the weight of the evidence, probably reflective of the injuries and losses the Claimant has suffered.
In arriving at this finding, I take into account that, probably to her own detriment, the Claimant has not qualified any medical expert opinion, while the Insurer has qualified opinion from its panel, namely that of Dr Machart and Dr George, neither of whose opinions provide any significant support to the Claimant’s claim. Nevertheless, both are very well qualified, and there is no proper basis upon which I should reject their opinions.
With respect to clause 7.38 of the Guidelines, I conclude that while the settlement offer, once statutory benefits are deducted, is not a ‘generous’ offer as submitted. Rather, it is the reverse of generous. Nevertheless, it is within the range of likely potential damages assessments for the claim, were the matter to be assessed by a claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses of the Claimant and assuming the assessor accepts the conclusions of the only expert evidence provided by an orthopaedic surgeon and by a psychiatrist.
I accept that the Claimant understands the nature and affect of the proposed settlement, is aware that the statutory benefits will be deducted, knows that she will only receive net the sum of $65,100.88, and is willing to accept the proposed settlement and is indeed anxious to accept it and have it approved as soon as possible.
Taking all matters into consideration, the offer of $100,000 inclusive is appropriate and should be approved

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Terence Leland Stern

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 141

24 May 2021