Alonso v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 233
•22 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Alonso v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 233 |
| CLAIMANT: | Javier Alonso |
| INSURER: | Insurance Australia Liimited trading as NRMA Insurance |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 22 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages pursuant to section 7.36(3) and section 7.36(4); Held – non-economic loss; agreed $250,000 injuries included multiple facial fractures, left jaw injury, lacerations to face and left thigh, scarring, soft-tissue injuries to left shoulder, arm, lumbar spine, left ankle and hip resolved; past economic loss closed-period $61,453.55 and small buffer future economic loss $25,000; impact of Centrelink disability applications prior and post-accident. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued in accordance with s 7.6 (1) of the Motor Accident Injuries Act 2017. 1. In accordance with s 7.36(3) and s 7.36 (4) the amount of damages for the claim is $336,453.55. 2. The insurer is to have credit of $61,453.55 for payments made pursuant to s 3.40(1)(b) of the Motor Accident Injuries Act 2017. 3. The amount of the claimant’s costs in this matter is $38,546.45 inclusive of GST. |
STATEMENT OF REASONS
BACKGROUND
This dispute relates to an application for an assessment of a claim for damages (the Application) under s 7.36 of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 28 January 2022 (the motor accident).
Javier Alonso (the claimant), is a 67 year old man, who sustained injuries in the motor accident.
On 3 February 2022 the claimant made an application for personal injury benefits in respect of the motor accident against NRMA (the insurer) being the compulsory third-party insurer of the vehicle at fault. (document JB6)
On 25 January 2023, the claimant made an application for damages under common law.
In a liability notice dated 26 April 2023 (document JB7), the insurer admitted liability.
The Application was lodged with the Personal Injury Commission (Commission) on
6 December 2024. The matter was allocated its first preliminary conference on
4 February 2025.An in-person assessment took place at the Commission in Sydney on 12 May 2025. The claimant was directed to provide breakdown of agreed claimed costs within seven days.
The parties agreed that the following issues were required to be determined by me:
(a) the quantum of damages for non-economic loss;
(b) the quantum of damages for past loss of earnings or past loss of earning capacity, and
(c) the quantum of the claimant’s damages for future loss of earnings or future loss of earning capacity.
The parties agreed that:
(a) the insurer had made payments under s 3.40(1)(b) of the MAI Act (statutory benefits paid) in the sum of $61,453.55;
(b) payments made by NRMA under s 4.5(1)(d) of the MAI Act (Fox v Wood damages) amount to $13,517, and
(c) that I issue draft reasons to the parties to consider.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination contained in a joint bundle included:
(a) Submissions.
(b) Claim forms.
(c) Medical assessments:
(i) Medical Assessor Cameron dated 25 April 2024;
(ii) Medical Assessor Curtin dated 4 April 2024, and
(iii) Combined certificate dated 20 August 2024.
(d) Medico-legal reports:
(i) Dr Patrick general, vascular and trauma surgeon dated 7 August 2023, and
(ii) Dr Davies cardiologist dated 4 April 2025.
(e) Hospital records:
(i) ambulance;
(ii) Kurri Kurri, and
(iii) John Hunter.
(f) Clinical records – various.
(g) Certificates of capacity.
(h) Economic loss documentation:
(i) taxation returns;
(ii) payslips;
(iii) Centrelink records;
(iv) replies to particulars;
(v) statutory payments, and
(vi) tax schedule.
Oral evidence
The parties in addition to written submissions provided short oral submissions in relation to concessions made by each party to each head of damage. This included non-economic loss, past economic loss and future economic loss.
By the conclusion of the assessment conference the parties had agreed on regulated costs.
The accident
There is no dispute between the parties that the accident occurred on 28 January 2022 in circumstances where the claimant sustained significant injury when the insured large truck carrying horses fitted with a bull-bar collided with the claimant who was riding his push-bike. The insured failed to give way.
The claimant was struck by the bull-bar on the left side of his face and fell to the roadway where he lost consciousness for a time before being treated by ambulance and conveyed to John Hunter Hospital.
He remained an in-patient for six days undergoing treatment for multiple facial fractures and other injuries to his body.
Assessment of damages
Injuries sustained
There was little dispute between the parties that the claimant suffered injuries as a consequence of the accident. The claimant sustained in the motor accident as follows:
(a) multiple left sided facial fractures – nasal bone, left zygomatic bone and arch, bilateral maxillary wall, body of pterygoids bilaterally and left pterygoid lateral plate;
(b) laceration -full thickness left cheek;
(c) left jaw –injury;
(d) laceration left thigh;
(e) left eye- herniation of left intraorbital fat into the maxillary antrum and infraorbital nerve;
(f) left shoulder injury – soft tissue;
(g) left arm injury – soft tissue;
(h) lumbar spine- soft tissue;
(i) left ankle – soft tissue;
(j) left hip – soft tissue, and
(k) scarring - left cheek and left thigh
The claimant underwent multiple surgical operations to his face and left thigh to repair open wounds. His fractures have by the time of assessment subsequently healed.
At the time of assessment the claimant had made quite significant recovery, however reported that he continued to experience :
(a) soreness in his left cheek;
(b) some difficulty with chewing;
(c) loss of sensation to cheekbone and adjacent skin;
(d) soreness and tenderness in upper front teeth;
(e) 45mm scar to his left cheek, slightly atrophic and irregular creasing;
(f) left sided nasal deviation with good airflow, and
(g) 7cm scar to left thigh with pink/purple slight depress.
Medical evidence
The claimant’s reports
The claimant relied upon the opinion of Dr Patrick dated 7 August 2023. He opined 15% whole person impairment. This ultimately was subject to Medical Assessment by Medical Assessors Cameron and Curtin.
Dr Davies cardiologist opined in his report dated 4 April 2025 (document JB 12) the claimant had recovered well from the initial mild heart attack after undergoing coronary bypass grafting. He was seen in November 2022 wherein Dr Davies considered his condition very stable.
To the question put by the claimant:
“Was our client fit for work so far as his heart condition was concerned?” he responded “Yes. We have many patients tht are able to return to physical jobs such as this after cardiothoracic Surgery”. (p 94 of joint bundle)
Clinical records note that he continues to attend for ongoing intermittent review.
The claimant’s present symptoms are:
(a) mastication impairment;
(b) nasal airway obstruction;
(c) minor scarring, and
(d) left intra orbital nerve injury.
The insurer’s reports
The insurer relied upon the medical reports contained in Centrelink records. In particular the reports of Dr Habib his treating general practitioner . The report of 30 June 2021 referred to chronic back pain due to degenerative changes and facet joint arthropathy to support an application for disability pension which predated the motor vehicle accident. There was also a diagnosis od severe osteoarthritisin both knees.
Dr Habib had at this time certified the claimant as unable to do any heavy lifting, climbing, squatting and kneeling. A restriction was placed on movement and work capacity.
This reduced his pre-injury capacity was limited to 15-22 hours work weekly. This was anticipated to last more than two years. The application was ultimately rejected.
The report of Dr Habib dated 14 July 2023 in support of a fresh disability support pension related to the heart attack the claimant suffered on 16 August 2022. The insurer relied upon the noted restrictions as it related to aeschemic heart disease. He was reported to be unable to undertake any manual work due to “compromised cardiac function”. With “indefinite incapacity to work”.
Centrelink ultimately rejected this application on 17 January 2023.
Submissions on non-economic loss
Noting that the medical assessments of Medical Assessor Cameron and Curtin combined total of 11%, the parties agreed the claimant qualified for non-economic loss.
Initial submissions of the claimant suggested the sum of $350,000 appropriate allowance for this head of damage.
The insurer submitted the sum of $200,000.
Upon discussions between the parties during the assessment conference, the claimant and insurer both made concessions and submitted the sum of $250,000 as an appropriate amount for non-economic loss having regard to the nature of the injuries the subsequent recovery of the multiple facial fractures and the improvement to the left shoulder as noted by Dr Kemp.
Assessment of non- economic loss
Having noted the concession of the parties I assess non-economic loss in the sum of $250,000.
Economic loss
Impact of injuries on claimant’s earning capacity
The claimant at the time of the accident was working on an intermittent basis with different contracts through a labour hire company.
The claim for past economic loss amounted to $158,242 with a further sum of $18,989 for past superannuation losses.
The basis of the claimant’s claim was that he had a pre-injury earning capacity of $1,246 net per week.
His initial claim was that due to the injuries sustained in the subject accident he has been and remains totally unfit for work since the accident and claims the weekly sum since
28 January 2022.A concession for the period immediately impacted following the heart attack and quadruple bypass surgery was excluded from the claim for the remainder of the 2022 claendar year.
Thereafter the claim was reinstated to the date of assessment.
The insurer’s submission on past economic loss
The insurer submitted that past losses should have regard to the evidence before me.
Contrary to the claimant’s evidence, the payslips ad taxation returns demonstrate that in the six months prior to the accident the claimant was not working full-time but only occasionally.
Taking into consideration the payslips for the period the claimant earned a total of $7,993.80 gross and a net sum of $5,836.80 equating to a weekly earning net of $224.49.
The claimant was certified unfit for work for one month between 28 January 2022 and
28 February 2022. He was certified fit for seven hours per day and five days per week between 5 April 2022 and August 2022.The intervening event of a heart attack in August 2022 and his failure to return to work is no longer related to any injury sustained in the subject accident but to his heart condition.
The insurer submitted that past economic loss should be limited to the statutory payments made in the sum of $61,453.55 which is inclusive of $13,517 the claimant’s losses pursuant to s 4.5(1)(d) for tax paid is on statutory payments.
The insurer is thseeking credit for the sum of $61,453.55.
The assessment of future economic loss
Having regard to the submissions of the claimant and the information contained in the Centrelink applications, I am not satisfied the losses claimed by the claimant are supported by the facts.
The claimant prior to the subject accident had reduced his hours of work and attempted to claim a disability pension noting restricted capacity of 15-22 hours weekly.
The extent of work undertaken in the immediate six months before the accident accord with the insurer submission that the claimant was only working intermittently, before the accident.
I accept that upon sustaining his horrific injuries, he was unable to work for a period of time and the amount paid by the insurer to date in the sum of $61,453.55 accord with his earning capacity and accurately depict actual loss.
The claimant then suffering heart issues in August 2022 has further impacted on his reduced capacity to a lower tolerance of seven hours at best.
Assessment of past economic loss
I am satisfied that the losses calculated by the insurer accurately reflect the loss of earning capacity directly attributable to the injuries sustained in the subject accident. The amount paid in statutory payments is $61,453.55.
I assess past economic loss in the sum of $61,453.55 representing net weekly payments of $47,936.55 and tax paid of $13,517. (Document JB26)
Future economic loss
The claimant’s position
The claimant initially contended the claimant should receive an assessment of $245,181 with a loss of future superannuation in the sum of $34,325. This was based upon a weekly loss of $1,246 to age 70 years.
The insurer’s position
The insurer in response submitted there should be no allowance as the claimant was certified fit to return to duties before his heart attack in 2022. His inability to return to any form of work is not accident related.
Assessment of future economic loss
The material contained in the Centrelink records is relied upon by me to address the factors considered in respect to impact of the claimant’s injuries to impairment of future earning capacity and future economic loss.
I do not accept that the claimant’s claimed losses are in accordance with the most likely circumstances but for the accident.
The claimant prior to the accident was already attempting to obtain a disability support pension based upon pre-existing health conditions to his lower limbs and spine as reported by Dr Habib. Whilst his application was ultimately rejected, the medical certificate indiated he was unfit to work full-time and in heavy manual roles.
His reduced hours were undertaken before he subject accident.
The submission that the claimant had a pre-injury earning capacity of $1,246 net is rejected due to the primary evidence before me that he was working intermittently in the six month period before the accident. Upon recovery from the injuries sustained, he at best would have a residual capacity at 15-22 hours before the impact of his heart condition. This was further reduced to 8-14 hours on 19 September 2023.
Then there is medical evidence before me that according to Dr Habib the claimant is now totally unfit for any manual work due to his ongoing symptoms of aeschemic heart disease causing shortness of breath on minor exertion and ongoing osteoarthritis in multiple joints and both knees. The reported standing tolerance was 5-10 minutes.
The parties suggested I consider at best a small buffer in contract to a specifi weekly sum noting the difficulties experienced by the claimant with unrelated medical conditions.
Having regard to the remaining working life of the claimant, I consider a small buffer in the sum of $25,000 inclusive of superannuation entitlement an appropriate assessment for future economic loss representing an occasional period of time off should his symptoms flare up in the event he was to return to any part-time work available to him in the remaining years of his working life.
Taking all the above into consideration I assess future economic loss in the sum of $25,000.
Assessment of damages summary
Under s 7.36, 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 $250,000
Economic losses
· Past economic losses $ 61,453.55
· Future economic losses $ 25,000
Total of economic losses and non-economic loss $ 336,453.55
Total damages assessed $336,453.55
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
· Statutory benefits paid - $61,453.55.
Costs and disbursements
Costs and disbursement have been agreed at regulated costs in the sum of $38,546.45 in accordance with Part 8 of the MAI Act and Regulations.
I rely on the attached Costs Calculator which amounts to the sum of $38,546.45.
Conclusion
On the issue of liability for the claim, NRMA’s insured owed a duty of care to the claimant, admitted it breached that duty of care and the claimant sustained injury loss and damage as a result of that breach.
Under ss 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damage for this claim is $336,453.55.
The claimant’s economic loss is reduced by $61,453.55 and the insurer is to have credit for the payments made by the insurer pursuant to s 3.40(1)(b).
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $38,546.45 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
· Personal Injury Commission Act 2020;
· Personal Injury Commission Rules 2021;
· MAI Act;
· MAI Act regulations, and
· Civil Liability Act 2002.
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