Ashraf v AAI Limited t/as AAMI

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ashraf v AAI Limited t/as AAMI [2023] NSWPIC 392
CLAIMANT:	Ashraf Gholamrezaei
INSURER:	AAI Limited t/as AAMI
MEMBER:	David Ford
DATE OF DECISION:	7 August 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under 7.36(3) and 7.36(4); claimant was the driver of a motor vehicle which was struck from the rear by the insured motor vehicle; insured admitted liability and no allegation of contributory negligence; claimant suffered injuries to cervical spine, lumbar spine, right shoulder and also suffered from post-traumatic stress disorder resulting in an assessment of whole person impairment of 15%; claimant is a clinical nurse educator; claim for non-economic loss; past and future economic loss; Held – claimant is entitled to damages for non-economic loss and past and future economic loss.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of claim for damages made in accordance with s 7.36 of the Act. 1. On the issue of liability for the claim the AAMI’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury, loss and damage as a result of that breach of duty. 2. The amount of damages assessed in respect of this claim is $853,038 which includes the statutory benefits paid by the insurer. 3. 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 Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 is $63,305.55 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

On 12 April 2018 the claimant was driving her motor vehicle on the M4 motorway and was stationary on the off ramp leading to Parramatta. The motor vehicle being driven by the insured driver collided with the rear of the claimant’s vehicle, which in turn, the insured motor vehicle was shunted by another vehicle and consequently, the claimant’s vehicle was shunted into the vehicle in front of her.
Police and ambulance attended the scene of the accident, and she was transported by ambulance to Westmead Hospital, where she was admitted and remained overnight for observation.
As a consequence of the accident, she sustained injuries to her cervical spine, lower back, and a right rotator cuff injury, for which she had surgery performed by Dr Haber on

9 December 2019. She also suffers from psychological injuries because of the accident.
At the time of her accident, she was employed as a clinical nurse educator at the Cumberland Hospital, and her pre-accident pay slips from the period January 2018 up until the date of the accident, disclose a net weekly income of $1,200 plus superannuation. A few days after the accident, she returned to work and then took a period of sick leave, but realised she could not carry out her work duties due to continuing pain and discomfort from her injuries.
She was medically retired on 15 June 2018, and has not been able to return to either full time or part time employment since that date. She is now in receipt of the aged pension.
She was born in 1952 and is presently 71 years of age. At paragraph 63 of her statement dated 7July 2023 she states as follows:
“63. I had no intention of retirement and in fact had intended to work to at least 75 years of age in the health industry before looking at some casual/part time employment as a nurse in the private cosmetic surgery field, where I understood the duties of a nurse in that industry, were extremely light. I thought I would do that for as long as I could.”
Liability is admitted and accordingly the claim comes before me solely to assess damages.

Outline issues in dispute

The following issues have arisen in this matter:
(a)    non-economic loss;
(b)    past economic loss.
(c)    past superannuation.
(d)    future economic loss.
(e)    future superannuation, and
(f)    Fox v Wood.
The main issues requiring my determination are as follows:
(a)    what is the entitlement to damages for non-economic loss.
(b)    to what extent if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until the present time and for the remainder of her working life, and
(c)    what is the entitlement to damages which flow from the findings on the above issues.

Documents considered.

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

Submissions made by the claimant.

At the general assessment conference, the claimant was questioned by her counsel with regard to her 2009 work injury, and I note the submissions made on behalf of the claimant commencing at page 2-4. I accept as at the date of her motor vehicle accident, there was no impairment to her work capacity due to the 2009 incident.
I refer to the statement of the claimant dated 7 July 2023 and I note the following paragraphs:
“97. I have avoided driving since the accident. I had difficulties holding the steering wheel because of my right shoulder injury and I am unable to turn my neck properly, and as a result, I am therefore afraid of having another motor vehicle accident.
98. When I did attempt to drive on a couple of occasions in the year after the accident, I suffered from palpitations and began to feel extremely anxious, and I just could not continue.
99. I avoid driving because of panic attacks.”

I also refer to paragraph 103 as follows:
“103. I had planned to work for at least another five years in the health industry in light of the loan my daughter had provided to me to enable me to complete the purchase of the Forest Lodge Garden unit. After that, I was intending to look for casual work as a nurse in the private cosmetic surgery industry.”
The claimant has also sought damages in relation to travel expenses and in her statement, she states she has been able to learn how to manage public transport but if required to travel by taxi or Uber she does not have sufficient funds to pay for this expense. She has also requested she be allowed sufficient funds to travel in business class when in the future she may seek to visit her family in Iran.
I have read the statement of the claimant’s daughter, Hanieh Tabnak, dated 7July 2023 and noted its contents. She was present at the assessment conference but was not required for questioning by either counsel.
I further note the statement of Zahra Haji-Habibzadeh dated 7 July 2023. This witness was questioned by telephone at the assessment conference. I note the following paragraphs in her statement:
“35.   She was not the happy person who I had known before the accident.
36.    Before the accident she was full of life and energetic
37.    She was now focused on her physical and emotional problems and was not the confident woman who I had known for so many years.”
Miss Haji-Habibzadeh is currently employed as a clinical facilitator at the University of Sydney and the Australian Catholic University. Her work is the same job description as the work undertaken by the claimant prior to the accident. She confirmed during the COVID-19 shutdowns, she did work less hours, but apart from this period has never earned less than $80,000 gross per annum plus superannuation. She has known the claimant for 30 years.
At the general assessment conference, the claimant stated she has not applied for work because of her mental and concentration problems, and she suffers from continual pain. She has a problem with concentration, sitting all day and standing for any lengthy period.
The solicitor for the claimant served a report from Dr Raymond Tint Way dated

17 September 2020 on page 3 of his report, he states as follows:
“Based on her reported clinical history and mental state examination, I had diagnosed her with a chronic adjustment disorder with anxiety and depressed mood, PTSD. (Resolving) and specific phobia regarding travelling in traffic. He was of the opinion her fitness to return to work would need to be reviewed in six months’ time”.
I also refer to the report of A/Prof Timothy Steel dated 25 September 2020. The claimant saw him at the request of her general practitioner in relation to her right sided lower back pain, neck and shoulder pain. He made several recommendations including the surgical decompression at the L4-5 level to decompress both L5 nerve roots. The claimant was not keen to undergo the proposed surgery. In a further report, dated 26 October 2020, after having the benefit of a whole-body bone scan with CT Spect, he recommended her pain is not sufficiently severe enough to warrant surgical intervention or targeted cortisone injections. At that point in time, he believed treatment should be aimed at medication and non-interventional treatments such as exercise, massage and local treatments.
The solicitor for the claimant arranged for her to be examined by Dr Christopher Canaris, psychiatrist, and I refer to his report dated 8 July 2021. He has provided a comprehensive report, Under the heading Summary and Conclusions on page 5 he states the following:
“Your client was injured in a motor vehicle accident on the 12th of April 2018, in which she sustained physical injuries including problems with her neck, her back and a right rotator cuff injury for which she has had surgery. She has not gone back to work because of a combination a physical and psychological problem and now lives a very sedentary and unstructured life at home. She is now unable to drive at all because of anxiety and is a very nervous passenger, which limits her considerably. She reports nightmares of the accident and insomnia. She is socially withdrawn, and I note evidence of some loss of self-care, irritability, loss of concentration, loss of motivation, and tiredness all of which are accompanied by depressed effect.”
He assessed her as having a whole person impairment of 22%.
She was also examined by Dr Drew Dixon, orthopaedic surgeon, on a medical legal basis and I refer to his report dated the 15 November 2021. I note the following on page 3 under the heading “Present Symptoms”:
“She reports pain and stiffness in her neck with right sided neck pain with right shoulder brachalgia with trapezial muscle pain and has occipital headaches with nausea at times. She recalls at the time of the accident having pain behind her right ear and she has persisting pain in the right side of her neck in the region of the mid to lower cervical facet joints. She reported transient paraesthesia in her right hand following the accident.”
On page 8 of his report, he diagnosed the following injuries:
“1.     Whiplash injury to her neck with post traumatic stiffness with dysmetria facet arthralgia and shoulder brachalgia with right trapezial muscle pain and radicular complaint with occipital headaches.
2.     Whiplash injury to the right shoulder with post traumatic stiffness with rotator cuff repair and residual subacriomial bursitis clinically and difficulty elevating the shoulder and difficulty swinging the arm while walking and doing heavy lifting and carrying.
3.     low back strain with aggravation of L4/5 spondylosis which is ongoing.
4.     impaction of her injuries on her activities of daily living
5.      reliance on analgesia an anti-inflammatory gel
6.     Post traumatic stress disorder requiring antidepressants and counselling”.
Dr Dixon stated his prognosis for her returning to work as a clinical nurse specialist remained poor. He notes that although she is aged 69, she wished to work until at least 75 years as she was a very active and fit person prior to the subject accident and was coping well with her job for the Sydney University campus at Cumberland as a clinical facilitator because of her injuries and post-traumatic stress disorder, she has been stood down and her prospects for returning to work are poor.
He is of the opinion she was unfit for her previous employment. He also stated her condition was stabilised and no further improvement is expected.
I have also read the report of Dr Noel Dan dated 18 June 2019 who is her treating neurosurgeon. He noted since the accident she had problems with sleeping and her neck pain continued as well as interscapular pain and pain along the jaw.

Submissions made by the insurer.

The solicitor for the insurer arranged for the claimant to be examined on a medico legal basis by Dr Robert Breit, orthopaedic surgeon, and I refer to his reports dated 2 September 2020 and 17 March 2022. In his first report, he sets out in detail the documentation reviewed by him and has noted her present complaints on page 4 of his report. He carried out a physical examination and viewed imaging reports. At that time, he stated the claimant could not perform her pre-injury duties, but suitable duties would be reasonable.
In his second report, Dr Breit opined the diagnosis is of a soft tissue injury to the neck, low back and right shoulder. He felt her prognosis was poor. On page 8 of his report, he states the following:
“This lady is partially fit by virtue of her restricted painful shoulder movement and back pain. On the basis of today’s assessment, this lady in my opinion, could work normal hours where there is no work above chest height and no forceful repetitive use of either arm.”
The insurer arranged for the claimant to be seen by Dr Graham Vickery, psychiatrist and

I refer to his report dated 8 February 2022. He has noted her current symptoms on page 3 of his report and in particular notes her difficulty in returning to driving a motor vehicle and her sleep disturbance. On page 7 of his report, he stated the following:
“The psychological injury of specific phobia of driving disorder is causally related to the subject motor vehicle accident on the basis of the history provided. The persistent depressive disorder is due to the impact of the loss of employment and not being able to care for her granddaughter and is not directly due to the motor vehicle accident with a reduction of 50% ie 3%”. Dr Vickery assessed her as having a 2% whole person impairment in relation to psychological injuries caused by the subject accident.”

Reports from the medical service

There were several Certificates and Reasons from the Medical Service in relation to a treatment dispute and assessment of non-minor injury. The injury to the right shoulder was assessed as not being a minor injury for the purposes of the Act and the Medical Assessor was Dr Wijetunga. I also note the Certificates and Reasons of Medical Assessor Melissa Barrett in relation to psychological or psychiatric injuries. She certified the claimant suffers from specific phobia of car travel which is not a minor injury for the purposes of the Act. Her certificate and Reasons are dated 23 December 2019.
I refer to the Certificate and Reasons of Medical Assessor Nagesh dated 16 June 2023 in relation to the claimant's psychological injuries. He assessed her as suffering from post-traumatic stress disorder and assessed her whole person impairment at 15%. He has provided a comprehensive statement of Reasons and I note the following under the heading “Current Symptoms” on page 4,
“Her current symptoms include insomnia, nightmares, and flashbacks of the accident. She has completely avoided driving since the accident. the very thought of getting into a car makes her anxious. She is hypervigilant when travelling in a car. She is irritable. She has become socially withdrawn and lost interest in her hobbies which was in nature. She has been experiencing guilt feelings. Her sleep is a big problem. She continues to have nightmares. She is irritable. Her ability to concentrate has diminished. She lacks energy and motivation.”
I also note the following under the heading “Comments of Consistency” on page 5 of his reasons,
“I could not identify any inconsistencies as of today's assessment. Miss Gholamrezael came across as somebody who was depressed and anxious and her mental state examination was consistent with somebody who suffers from depressive anxiety and post-traumatic stress disorder symptoms.”

REASONS

Non-economic loss

The claimant is entitled to damages for non-economic loss. The solicitor for the claimant has submitted a sum of $275,000 for such damages, and in response, the insurer submitted an appropriate sum to be awarded is $200,000. In determining the appropriate amount to be awarded to the claimant, I accept she suffers from the current symptoms referred to in paragraph 29 above, which she recounted to Medical Assessor Nagesh.
I was also assisted by the reports of Dr Canaris and Dr Dixon and the statement of the friend of the claimant Miss Haji-Habibzadeh referred to in paragraph 18 above. Furthermore, I found the claimant to be honest and forthright when questioned by both counsel at the assessment conference. I accept this accident has had a significant impact upon her physical and mental well-being. I find her ongoing disabilities are permanent and will remain with her indefinitely.
I therefore consider an appropriate allowance for non-economic loss having regard to her age and her injuries and disabilities is the sum of $275,000.

Past loss of earnings

The solicitor for the insurer submits I should allow a sum of $150,000 for past loss of earnings which includes an allowance for statutory benefits paid totalling $123,493.13. The solicitor for the claimant has submitted I should allow an amount based upon a total incapacity for work calculated at the rate of $1,200 net per week from 15 June 2018 up until the present time. I prefer the opinions expressed by both Dr Canaris and Dr Dixon regarding the claimant’s inability to return to the workforce and I accept, since her accident and up until the present time, she has been unable to engage in either full time or part time employment. I also accept she is reluctant to drive a motor vehicle at any time, is a genuine concern for her and also places her in a difficult position in regard to seeking any form of suitable employment, even part time employment.
Accordingly, I have accepted the calculation for past economic loss submitted by the solicitor for the claimant. The period is from 15 June 2018 until 15 August 2023, a period of 290 weeks at $1,200 net per week. This results in a calculation of $322,800.
Therefore, the total amount to be awarded for past economic loss of earnings is $322,800.

Past superannuation

I have calculated past superannuation based on 11% of the net sum of $322,800 which results in an amount to be allowed for past superannuation in the sum of $35,508.

Future loss of earnings

The claimant is presently 71 years of age and I accept, but for the accident, she would have continued to work to at least 75 years of age in the health industry as stated by her and in addition, I also accept thereafter, she would have obtained some casual part time employment as a nurse in the private cosmetic surgery field, or some other suitable part time employment suited to her experience and capabilities in the health industry.
The solicitor for the claimant has submitted I should allow and an amount by way of a buffer in the sum of $300,000 plus an allowance for future superannuation in the sum $42,000.

I consider it appropriate to make an allowance by way of a buffer, rather than a precise calculation. As stated above. I find the most likely future circumstances for this claimant she will continue to suffer a diminution in earning capacity for the remainder of her working life in either full time or part time employment beyond the age of 75 years and therefore, I consider it appropriate to award future economic loss by way of a buffer, in the sum of $200,000 which includes an allowance for future superannuation,

Fox v Wood

The parties have agreed the amount to be awarded for Fox v Wood is the sum of $19,730.

Claim for travel expenses.

The solicitor for the claimant submitted a claim for travel expenses since she no longer drives a motor vehicle because of her psychiatric condition. The claim is made on the basis she requires expenses to attend medical appointments, day-to-day tasks and overseas travel requiring the purchase of a business class fare. I refer to the provisions of the Motor Accident Injuries Act 2017 s 4.5(1)(b) as follows:
“s.4.5(1)(b) Damages for cost for accommodation or travel (not being the cost of treatment and care) of a kind prescribed by the regulations.”
I refer to the Motor Accident Injuries Regulation 2017 Part 4 Award of damages as follows:
“s.9 Accommodation or travel for which damages may be awarded (section 4.5)
The kind of damages for which damages may be awarded (subject to Division 4.2 of the Act) is any accommodation or travel for which the claimant has incurred, or likely to incur, a cost as a result of the injury caused by the motor accident.”
I am not satisfied the injuries and disabilities suffered by her necessitate the need for her to fly business class. Although travelling by public transport is an inconvenience for her in attending any future medical appointments, I do not accept her injuries and disabilities necessitate the need to be driven by taxi or Uber to such appointments. I further note, in any event, when travelling in a motor vehicle, she is a very nervous passenger and I assume travelling by public transport is less stressful for her.
I therefore make no award in respect to the claim for travel expenses.

Assessment of damages summary

Under sub-section 7.36 (1)(b) of the Motor Accident Injuries Act 2017. 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  $275,000
Past loss of earnings  $322,800
Past superannuation  $35,508
Future loss of earnings (incl,superannuation)  $200,000
Fox v Wood  $19,730
Total of economic losses and non-economic loss  $853.038
Reduction for contributory negligence  Nil
TOTAL DAMMAGES ASSESSED  $853,038

Costs and disbursements

I assess the claimant's legal costs and disbursements in accordance with the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet.

CONCLUSION

On the issue of liability for the claim the AAMI's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury, loss and damage as a result of that breach of duty.
I specify the amount of damages for this claim as $853,038 which includes the statutory benefits paid by the insurer.
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 $63,305.55 inclusive of GST.

LEGISLATION

In making my decision I have considered the following legislation and guidelines:
(a) Motor Accident Injuries Act 2017.
(b) Motor Accident Injuries Regulation 2017.
(c) Personal Injury Commission Regulation 2020.
(d) Motor Accident Guidelines 2017, and
(e) Personal Injury Commission Rules 2021.

[2023] NSWPIC 392

7 August 2023