Agyei v AAI Limited t/as AAMI
[2025] NSWPIC 372
•1 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Agyei v AAI Limited t/as AAMI [2025] NSWPIC 372 |
| CLAIMANT: | Roselyn Anwti Agyei |
| INSURER: | AAI Limited t/as AAMI |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 1 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages; liability wholly admitted; 16-year-old claimant a front seat passenger in a vehicle driven by her sister; vehicle rear-ended by insured driver; damages limited to economic loss; claimant a student at date of accident; since 2024 claimant studying biomedical science at university in Melbourne; whether claimant sustained an impairment to her economic loss; Held – claimant suffered an impairment to her employment which is not productive of past economic loss; buffer assessed for future economic loss; damages assessed in the sum of $100,000 plus agreed costs of $24,376. |
| DETERMINATIONS MADE: | CERTIFICATE 1. Damages assessed in the sum of $100,000 pursuant to s 7.34 of the Motor Accident Injuries Act 2017. 2. Costs and disbursements are assessed in the sum of $24,376.00. |
STATEMENT OF REASONS
INTRODUCTION
On 14 February 2021, the claimant, Ms Roselyn Agyei was travelling in the front passenger seat of a vehicle driven by her sister when the insured’s vehicle rear ended their car whilst stationary on Stacey Street, Bankstown.
The ambulance attended the scene of the crash and after an examination by paramedics, she was conveyed to Bankstown Hospital where she was kept under observation overnight.
Ms Agyei lodged a claim for common law damages against the at fault driver which is managed by AAI Limited t/as AAMI (insurer). The insurer wholly admitted liability for the crash on 11 March 2024.
A dispute arose between the parties on the claimant’s entitlement to damages for non-economic loss. An application for the assessment of whole person impairment (WPI) was lodged with the Personal Injury Commission (Commission). A certificate was issued which assessed WPI not greater than 10%. Ms Agyei is not entitled to damages for non-economic loss.
Initially, the claim for damages was limited to future economic loss. A few days before the assessment conference, a claim was submitted for damages for past economic loss.
The insurer raised objections to the additional material submitted by the claimant in support for her past economic loss claim. However, the insurer submitted the assessment conference should proceed regardless.
After review of the additional material, I allowed it to form part of the claimant’s material with a caveat that it would depend on what weight would be given to this documentation.
ISSUES IN DISPUTE
The following issues are in dispute:
(a) Has the claimant sustained an impairment to her work capacity which is productive of past economic loss?
(b) What is the claimant’s most likely future circumstances but for the accident?
Has the claimant sustained an impairment to her work capacity which is productive of past economic loss?
The claimant was 16 years old at the time of this crash. She is currently 20 years old.
Ms Agyei was born in Ghana. She emigrated to Australia with her family in 2018.
At the time of the crash, she was in Year 10 at Lurnea High School. It was her intention to study pharmacy at university after completing Year 12.
After discharge from hospital, she consulted her general practitioner Dr Oreb. The doctor prescribed medication and referred her for physiotherapy for vision problems, headaches and pain in her left arm.
Ms Agyei says since the crash, her mood is low. Her motivation has been affected, and she has difficulties concentrating. She says she missed a lot of school due to headaches.
She says before the crash, she was a studious student achieving excellent marks. Since the crash, she says she is withdrawn and quiet. Her studies have been affected. Her life has dramatically changed, and she says she has been feeling suicidal.
Ms Agyei prepared a second statement. During the assessment conference it was brought to the attention of her solicitor that neither Mr Nesbitt nor I, had a dated or signed copy. This has subsequently been rectified.
The signed statement is dated 15 July 2025. She says she moved to Melbourne to attend Victoria University in February 2024.
She is in her second year studying Biomedical Science. She told me this degree will be completed in 2027 at which time she will enrol in a pharmaceutical course. She expects to be granted credits from her current course. She understands this course may take a further three years.
Although she told me she was doubtful about her ability to cope with a career in pharmacy because it required critical thinking, there was no hesitation in her answers to questions put to her, words to the effect,
Mr Nesbitt “Once you finish your current degree you will transfer to pharmacy?”
Ms Agyei “Yes.”
Mr Nesbitt “And you will expect to receive credits?”
Ms Agyei “Yes.”
Mr Nesbitt “Once finished you expect to work as a pharmacist?”
Ms Agyei “Yes.”
She was also asked about her grades which record distinctions and credits. It was suggested to her that she was a high achiever. She explained before the crash all her grades were high. She relies on an email reference from a head teacher which confirms, after this crash, her personality changed, and her grades have suffered.
In her second statement, she discloses work that she was doing part-time for Subway and K-mart. When questioned why she had not previously disclosed this work, she repeated on a number of occasions she was concerned she would be misunderstood. Mr Nesbitt suggested to her that the reason for non-disclosure was because she did not want others such as doctors to misunderstand her struggles even though she was studying full time and working two part-time jobs. He further suggested it may be that others might think she was more capable than she was telling them. She agreed and said she just wanted to protect herself.
I accept Ms Agyei has sustained an impairment to her work capacity. I prefer the independent opinions and conclusions issued by the Commission. Medical Assessor Melissa Barrett accepted injuries caused by the motor accident included somatic symptom disorder and adjustment disorder. Medical Assessor Michael Hong diagnosed major depression which is not a threshold injury.
I have reviewed the material provided to me which sets out wages Ms Agyei received prior to January 2024.
I have also reviewed the histories given by Ms Agyei to treating doctors, medico-legal professionals and Medical Assessors. Nowhere has Ms Agyei given a history of working two part-time jobs. I accept her evidence that she thought if she disclosed this to doctors, they may draw the conclusion she was more capable than she feels she is.
Her claim for past economic loss has been proposed to commence six months after her move to Melbourne for one year. The claim is for $540 per week using average weekly earnings according to her counsel’s oral submission for one year amounting to $29,700.
I accept Ms Agyei worked at both K-mart and Subway up until February 2024 when she relocated to Melbourne. She told me she is looking for work in retail or customer service. She is also looking for work as a support worker in care.
There is no evidence to support her submission that the reasons she has not worked since February 2024 is due to accident-related injuries. Clearly, she had capacity to work two part-time jobs up until February 2024. The reason she has not worked since this time is because of her relocation. There is no support that Ms Agyei’s impairment to her work capacity has been productive of past economic loss.
With no supporting evidence to establish an actual loss of earnings caused by the accident, no assessment can be made for past economic loss.
What is the claimant’s most likely future circumstance but for the accident?
The insurer arranged for Ms Agyei to be examined by Dr Jeffrey Baron Levi for the purpose of a vocational assessment on 26 April 2024. Dr Levi disagreed with Medical Assessor Hong’s conclusion and diagnosis because, during his assessment, the doctor concluded
Ms Agyei was likely over reporting her psychological symptoms.
In his summary and recommendations, Dr Levi opined Ms Agyei did not present with symptomatology consistent with a psychological impairment. He concluded Ms Agyei has a number of vocational options which include medical or pharmaceutical research or a career in research scientist, medicine, pharmaceutical development, medical scientist, clinical psychologist or in a laboratory as an assistant or technician. Starting salaries in these positions ranged between $51,000 to $85,000 per year.
It seems to me that Dr Levi is at odds with his conclusions and those of the independent medical assessors all of whom found Ms Agyei sustained both physical and psychological injuries caused by the accident.
Dr Robert Kaplan was engaged by the insurer to examine and provide opinion on Ms Agyei’s psychiatric symptoms. He seems to be focused on the opinions and conclusions of other medical professionals. Somewhat reluctantly, he considered Ms Agyei could have pain disorder, somatic symptom disorder or post-traumatic stress disorder which he says he cannot confirm.
He agreed with Dr Levi that there are no restrictions to Ms Agyei continuing her studies and progressing with her career. I have not found Dr Kaplan’s report of assistance as he found it difficult to communicate with Ms Agyei suggesting she has developed a personality change.
The independent medical assessors all accepted Ms Agyei sustained injures in the accident which include blurred vision, major depressive disorder, soft tissue injuries, and somatic symptom disorder and adjustment disorder.
The claimant’s solicitor arranged for Dr Ben Teoh to examine and report on Ms Agyei injuries. He diagnosed chronic adjustment disorder with mixed anxious and depressed mood. Further, he noted she reported chronic pain and a visual impairment.
This opinion is more aligned with the Medical Assessors’ findings. Dr Teoh accepted
Ms Agyei has difficulty processing information and concentrating.
Based on the opinions of the independent medical assessors and Dr Teoh, I accept
Ms Agyei has an impairment to her future earning capacity.
Based on their experts’ conclusions, the insurer makes no allowance for future economic loss. They submit her most likely future circumstance is Ms Agyei would become a pharmacist which they suggest is exactly what she will do after her studies have been completed.
The claimant has submitted her claim for future economic loss on the basis she has no capacity for full-time employment. This submission cannot be maintained as there is no supporting evidence to suggest she has no full-time capacity to work. Further she says there is no likelihood in the foreseeable future she can hold down any permanent position requiring expected levels of concentration, commitment and responsibility. The amount she is seeking is $605,880 plus superannuation of $84,823 based on a loss of $750 per week.
There is no evidence to support this submission. In fact, this submission is at odds with
Ms Agyei’s evidence to me that she intends to complete her studies and follow a career in pharmacy.
The claimant’s submission also fails to address the most likely future circumstance test.
The most likely future circumstance but for the accident is Ms Agyei would have enrolled in her current degree, enrol in a pharmaceutical degree and pursue a career in this field.
What I do accept is because of her injuries she is experiencing difficulties with her studies which has already impacted on her progress. There is a likelihood further delays may occur with her studies due to accident-related injuries. However, it is not possible to accurately calculates a weekly loss.
A cushion or buffer assessment is relevant in circumstances where earning capacity has unquestionably been reduced but its extent is difficult to assess, see Allianz Australia Insurance Ltd v Kerr (2012) 83NSWLR 302; [2012] NSWCA 13. This is such a case where it is not possible to make an accurate assessment for the claimant’s future economic loss.
Having considered Ms Agyei’s difficulties since the accident maintaining concentration and attendances to her school and university, and the possible loss of opportunities she may experience in the future, and her age, the appropriate buffer for future economic loss including superannuation is $100,000.
COSTS AND DISBURSEMENTS
At the conclusion of the assessment conference, I asked Mr Fahd, the claimant’s solicitor, if he had a schedule of costs and disbursements. He asked for time to provide this to the insurer. I expressed my concern that this had not previously been provided and extended time for him to submit this to the insurer for consideration.
I extended the time for the insurer to reply until 4 August 2025 to this application identifying what is agreed and disputed with reasons. I now have this material and assess costs and disbursements as follows.
The insurer responded to the claimant’s schedule of costs and disbursements.
The claim for representation was challenged because it was more than the regulated monetary unit which I agree is correct. The number of conferences was also challenged because the claimant’s undated statement was neither signed nor dated. The insurer nominated 3 hours which is included in the assessment of costs.
It is not necessary for me to make any decisions about the insurer’s challenges as the claimant’s legal representative posted a message on the portal confirming he agreed with the insurer’s challengers.
Costs and disbursements are agreed in accordance with the insurer’s schedule dated
30 July 2025 which is set out in the published calculation sheet 2017 as per the Regulations.
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