BBX v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 635
•17 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | BBX v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 635 |
| Claimant: | BBX |
| insurer: | Insurance Australia Limited trading as NRMA Insurance |
| Member: | Susan McTegg |
| DATE OF DECISION: | 17 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Assessment of damages; Motor Accident Injuries Act, 2017; head on collision at 80 kmph; fractured coccyx; soft tissue injury low back; closed head injury; psychological injury; claimant now 38 years of age; absences from work until December 2019; thereafter returned to pre-injury duties; question of impairment of economic loss; loss of career trajectory to senior management role; Held – impairment of earning capacity due to low back pain and psychological symptoms; no loss of income since return to full duties; not satisfied failure to secure promotion to role acted in for 10 months due to accident related injuries; claimant will require accommodation from employer; psychological symptoms means unlikely to secure senior management role; buffer for future economic loss of $150,000; damages assessed in total sum of $168,859.01. |
| 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 NRMA’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. Under sub-ss 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the MAI Act), I specify the amount of damages for this claim as $168,859.01. 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 MAI Act is $38,038.57 inclusive of GST. |
Reasons for Decision
Issued under s 7.36(1) of the Motor Accident Injuries Act 2017
INTRODUCTION
On 15 May 2019 BBX (the claimant) was driving her car on Appin Road, Gilead at about 80 kmph when the insured car crossed onto the wrong side of the road causing a head on collision (the accident). BBX applied the brakes so hard she was lifted out of her seat and hit the roof of the car. BBX saw what she thought was smoke coming from her car, her airbags deployed, her windscreen shattered and the horn went off. BBX sustained a haematoma to her head and experienced pain in her lower back, right buttock area and right knee.
I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of the injury sustained by the claimant.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
BBX alleges she sustained the following injuries in the accident:
· fractured coccyx;
· disc injury at T12/L1 level;
· sclerosis of sacroiliac joints;
· head injury, and
· psychological injury.
The insurer admitted liability in a notice dated 3 September 2021.
The claim was listed for assessment on 9 November 2022. The claimant was represented by Mr Nicolaous Ghabar of counsel instructed by Mr Philip Ferraro of Turner Freeman Lawyers. The insurer was represented by Mr Ben Wilson of counsel instructed by Katherine Teague of Hall & Wilcox Lawyers.
The only real issue in dispute was whether the accident has resulted in an impairment of the claimant’s earning capacity entitling her to an award of damages for economic loss.
During the assessment conference I was informed the claimant did not press the claim for damages related to loss of flexi-time.
At the conclusion of the assessment conference, I invited the parties to attempt to reach agreement as to the quantum of the claim for past economic loss for the period from 15 May 2019 until 31 December 2019 and to advise their respective positions by close of business on 11 November 2022. I received submissions from both parties setting out their respective positions.
TRANSITION OF EXISTING DISPUTES TO THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) commenced operation on 1 March 2021. The former Dispute Resolution Service was abolished by cl 3 of Division 2 of Part 2 of Schedule 1 to the Personal Injury Commission Act2020, (the PIC Act). The PIC Act and the Personal Injury Commission Regulation 2020 establishing the Commission provide that a new decision-maker may determine pre-existing disputes in accordance with the previously applying legislation.
Clause 14B(4)(c) of Schedule 1 of the PIC Regulation 2020 provides that the provisions of any Act, statutory rule or other law that would have applied to determine the proceedings, had the PIC Act not been enacted, continue to apply.
THE EVIDENCE
The claimant’s evidence
The claimant provided statements dated 4 May 2022 and 16 September 2022. She was also questioned at the assessment conference.
BBX presented as intelligent, forthright, and honest when questioned. She became teary at times when discussing the circumstances of the accident and her continued psychological response.
She is currently 38 years of age. She is married with three children aged about 9, 7 and 5.
She enjoyed good health before the accident, only complaining of pregnancy related lower back pain in April and September 2017.
She felt immediate pain in her head, her lower back, buttock area and right knee. Her right knee was bruised and swollen and her torso and legs were also bruised.
BBX was taken to Campbelltown Hospital by ambulance and underwent scans before being discharged. She subsequently saw her general practitioner (GP), Dr Pauline Hector on 17 May 2019 who certified her unfit for work. She noted an X-ray demonstrated a fracture of the tail bone. BBX was away from work for 13 business days and then commenced a gradual return to work commencing six hours a day two days a week until she gradually returned to work on full duties in January 2020.
BBX underwent physiotherapy until late 2019 although her evidence was, she underwent further treatment in about 2021. She continues to undertake the home exercises recommended by the physiotherapist.
BBX continued to consult Dr Hector until she retired and commenced consulting GP Dr Noreen Mahfuz in late 2021.
BBX said she continues to get a sore lower back if she sits or stands for long periods. She said the lower back pain is always present and she takes Panadol or Nurofen as required.
BBX described ongoing psychological symptoms, anxiety when driving, flashbacks and nightmares. She said Dr Hector encouraged her to consult the EAP (Employee Assistance Programme) counselling through her workplace and to try and manage her symptoms. She said Dr Hector was of the view sending her to a psychologist may cause her to dwell on her symptoms. BBX said she informed the claims officer at NRMA that she felt overwhelmed psychologically. Whilst the claims officer indicated the insurer would pay for psychological treatment, she also encouraged BBX to move on rather than dwell on the situation suggesting her symptoms will get better over time. With the benefit of hindsight, it is clear BBX thought this advice was unhelpful.
BBX saw Dr Rastogi, psychiatrist for a medico-legal assessment on 12 October 2020. Dr Rastogi recommended BBX undergo psychological counselling. As a result, BBX consulted Kate Glancey on four occasions commencing on 31 March 2021. BBX said she found the treatment with Ms Glancey assisted her although she found it emotionally draining. She agreed she told Ms Glancey she had come a long way since the accident and that her therapy helped her to look at things more positively. She felt there was not a lot more Ms Glancey could have helped her with although she was informed if she required additional support, she would be there to provide it.
BBX was teary when discussing the accident and her ongoing response to it. She said she does not talk about the accident but when she does, she finds it overwhelming. She remains reluctant to drive out of what she described as her “Campbelltown bubble” but noted the needs of her three children and their sporting activities means she has to “push that fear down”.
BBX said the accident had changed the way she interacted with people, for instance, she is no longer the person who organises catch-ups with girlfriends. She described a “foggy feeling”. She said she is forgetful, for example, forgetting what she plans to do, going to the shops and forgetting why she was there or forgetting a friend’s birthday. BBX said if it is not written down “I forget it”.
BBX said she was in a head on car accident at 80 kmph and whilst she hoped driving will get easier, and her anxiety ease she noted “three and a half years on” she was still upset, still hurting and physically sore.
BBX agreed she returned to see her GP on 21 December 2021 after Dr Dryson, occupational physician suggested she obtain a referral to undergo an MRI of the lumbar spine and sacroiliac joint. She also agreed she could return to see her GP to see if any further investigations or treatment were available.
I will address the evidence in relation to BBX’s return to work when considering the claim for economic loss.
Statement of BCQ
The claimant’s husband provided a statement dated 1 March 2021. He described short term memory loss including inability to recall conversations, to remember shopping lists, to remember birthdays and to pay bills on time.
BCQ observed his wife is unable to concentrate for long periods of time, she fails to complete tasks before moving on to something else and has become indecisive.
BCQ states he has observed his wife’s back pain restrict her ability to participate in physical activities with their children, to undertake exercise and to complete daily house chores such as vacuuming, mopping and sweeping.
He also describes reduced motivation stating his wife has lost her “get up and go” attitude and now seems constantly fatigued and easily overwhelmed. BCQ says the claimant is now reluctant to go to work and doubts her abilities, where she was previously a capable and confident employee.
BCQ also describes the claimant’s reluctance to drive, particularly longer distances and observed that she is now an anxious driver.
Campbelltown Hospital
On 15 May 2019 BBX was transported to hospital by ambulance. The admission summary states the injuries included a left parietal hematoma, right chest wall pain and bruising, lumbar spinal tenderness, left ASIS pelvic pain and left anterior knee pain.
The claimant underwent X-rays. An X-ray of the chest showed no displaced rib fracture.
An X-ray of the left knee showed no acute fracture or dislocation and no knee joint effusion.
An X-ray of the lumbar spine did not identify any acute fracture.
An X-ray of the pelvis showed no acute fracture or dislocation and incidental bilateral osteitis condensans ilii.
A CT scan of the brain demonstrated no acute intracranial haemorrhage.
General practitioner (GP)
BBX saw her GP, Dr Hector on 17 May 2019. She reported BBX had sustained a scalp haematoma, was getting quite a lot of low back pain, her neck was stiff, but improving, she was sore across the chest from the seatbelt, she felt foggy in the head and teary and when going to be bed had flashbacks of the accident and felt anxious. She also noted swelling and bruising of both knees.
Dr Hector reviewed the claimant on 24 May 2019 and on 31 May 2019 with complaints of low back pain and anxiety.
On 25 May 2019 on the referral of Dr Hector BBX had an X-ray of the lumbar spine which disclosed “a bony irregularity at the superior portion of the coccyx, in keeping with a minimally displaced fracture”.
On 7 June 2019 Dr Hector reported some issues with concentration, but overall BBX reported she had coped with work although she was very fatigued at the end of the day. She also reported anxiety when driving past the accident scene and described feeling a bit overwhelmed.
On 21 June 2019 Dr Hector reported there had not been much improvement in pain since the last visit. BBX had seen the physiotherapist once and had experienced more leg pain since that visit. She also reported BBX felt her concentration was still not quite back to normal, noting her attention can wander while working.
Dr Hector reviewed the claimant on 5 July 2019 when she reported pain including tightness in the hip and groin. She noted approval for eight sessions of physiotherapy. She discussed anxiety associated with driving and reported the claimant was finding she often needed to reread documents and felt her memory affected.
On 26 July 2019 Dr Hector reported BBX’s pain had improved, her concentration was improving and she was getting better at planning and preparing stuff for work. She reported she was anxious and angry if reminded of the accident.
On 6 September 2019 Dr Hector reported BBX had increased her hours to her pre-injury hours but she was struggling with fatigue and reduced concentration. BBX was reported to be teary and overwhelmed and Dr Hector reduced her hours of work.
On 6 and 12 September 2019 Dr Hector reported BBX had spoken to the EAP and had phone counselling.
On 8 November 2019 Dr Hector reported BBX still had pain in the evening when tired but noted her mood, focus and concentration had improved.
On 20 January 2020 Dr Hector reported BBX had worked full duties for four weeks out of the last six weeks. Whilst she was conscious of pacing herself, she was coping with the demands of work and noted her boss was supportive. Her pain was well managed but she still felt the need to stretch. Her concentration was not back to baseline but had improved. Dr Hector certified BBX fit for full duties.
On 21 December 2021 Dr Hector completed an imaging request noting BBX had clinically recovered but had residual pain at the bottom if sitting for too long.
Jessica Jackowski, physiotherapist
On 19 August 2019 Ms Jackowski reported the claimant’s attendance at physiotherapy for management of lower back/coccyx pain and right hip pain following the accident. She reported BBX could sit more comfortably although standing/walking for extended periods was provocative of earlier symptoms.
BBX was reportedly managing well when she was discharged from physiotherapy on 1 November 2019.
MRI of the lumbar spine 20 January 2022
The MRI showed normal alignment, no vertebral compression, unremarkable paraspinal soft tissue, normal cauda equina roots, no foraminal stenosis but at T12/L1 there was disc space loss with posterior end plate osteophyte formation and shallow disc bulging causing mild ventral thecal sac indentation.
MRI of the sacrococcygeal spine, 3 February 2022
The report reads:
“The coccygeal segments align normally to the sacrum. There is no vertebral bone marrow oedema. The fat planes around the coccyx as well as the sacrum seem normally preserved. No mass or fluid collection is seen. No bone marrow oedema is visible in the sacrum. There is however sclerosis of the iliac aspect of the sacroiliac joints which may be reflection of chronic sacroiliitis but no suggestion of active disease is seen. The pelvic structures appear unremarkable.”
Kate Glancey, psychologist
BBX commenced treatment with Kate Glancey, psychologist of Gerard Glancey & Associates on 31 March 2021. She reported short term memory loss, anxiety when driving, pain in the lower back, flashbacks, and anxiety. Ms Glancey reported:
“Concussion. Had poor memory. Migraines with visual disturbance. She still has short term memory loss. Dr suggested neurological assessment”.
On 3 June 2021 Ms Glancey noted concerns around anxiety and recorded:
“Frustrated with recall memory. I can't recall the order of events sometimes. Or what date I returned to work, how many days I had off”.
On 5 August 2021 Ms Glancey recorded:
“Her confidence was depleted after the accident. Sees how underconfident she was after the accident at work. She went for promotion in a role she had been functioning in for 10 months. Didn’t get it. Was very depleted, disappointed. But can see how she needs to grow again. Get that confidence back. She working on it [sic]. It’s a process.”
Dr Richa Rastogi, psychiatrist
Dr Rastogi assessed the claimant and provided a report dated 12 October 2020. At this time BBX was acting in the Interface Manager role although Dr Rastogi apparently understood she was working in her pre-accident role as a Project manager. Interestingly Dr Rastogi reported BBX had impaired concentration, poor retention and struggled with decisions. He reported she was forgetful, had short memory and was avoidant. He also noted she had poor coping, was easily overwhelmed, struggled with change and uncertainty and felt helpless and trapped by anxiety. Specifically, he reported:
“She feels amotivated in her career and has lost interest in things in pursuing her future vocational career. She is very withdrawn and shut down. She was a very active and independent person and now unable to take risks due to anxiety.”
In terms of capacity for employment Dr Rastogi stated, “future vocational opportunities may be limited by virtue of her anxiety and avoidant behaviours and inability to handle risk and higher stress”.
Dr Rastogi re-assessed the claimant and provided a report dated 3 December 2021.
He noted since March 2020 she had worked remotely from home which has worked in her favour because she can have a break in her activities having regard to her residual lower back pain.
He reported since undergoing treatment with Ms Glancey BBX had become emotionally more resilient and managed her distress better. He reported BBX was nervous driving, avoided driving to unfamiliar places, and had lost confidence.
Dr Rastogi also reported BBX’s memory and recall were still affected, she struggled with multitasking, had limited recall and difficulty with concentration leading her to feel overwhelmed and distraught. She needed to write things down and process them at her own speed.
Dr Rastogi also noted BBX was more inert and withdrawn in social settings, struggled with heavy duty domestic chores and had nights of erratic sleep due to pain. He reported:
“She does not enjoy things and let go of things. She has impaired concentration, poor retention and struggles with decisions. She is forgetful and has short memory. She is avoidant.”
Dr Rastogi diagnosed a specific phobia disorder with anxiety in recovery. He concluded she was working full time in her pre-injury duties but due to the accident had to resume a graded return to work and had missed vocational opportunities and promotions.
In assessing whole person impairment Dr Rastogi reported BBX was tired and exhausted, had difficulty with complex tasks, she was forgetful and had limited retention and recall and whilst working full time she needed breaks and struggled with multitasking.
The medico-legal evidence
Dr Jeanette Stewart, clinical neuropsychologist
Dr Stewart assessed BBX and provided a joint report dated 1 December 2021.
Dr Stewart reported following her return to full time work in January 2020 BBX found she was overwhelmed and struggled to manage. Her memory was poor and she was unable to “mentally multi-task” as she usually did. She could no longer remember all the tasks her manager asked her to do and she found it necessary to create a list. She found it necessary to ask colleagues for help with things she usually could manage with ease. BBX felt she had forgotten things she had learned during her career. Concentration on task was an ongoing issue. Pre-accident she could write work-based reports with ease, but now required regular breaks and takes longer to complete the task.
Dr Stewart undertook a neuropsychological assessment and concluded BBX suffered at most a mild traumatic brain injury. She stated:
“There is no evidence of cognitive impairment on current assessment. Her only area of weakness was in terms of her performance on tasks making up the Processing Speed Index (low average range). However, there was no evidence of slowed processing speed on other timed or non-timed tests were [sic] she performed quickly and accurately. BBX is making a slow but positive improvement in her overall cognitive abilities. It is most likely that the subjective difficulty she had had were secondary to her emotional and physical symptoms. She also has had disturbed sleep which will have a negative impact on her cognitive functioning overall.”
Dr Robin Mitchell, occupational physician
Dr Mitchell assessed the claimant at the request of the insurer and provided a report dated 10 December 2021.
Dr Mitchell reported BBX continues to have pain in the central lower back with some radiation to the right buttock aggravated by prolonged or arduous physical activity.
He diagnosed an undisplaced fracture of the coccyx and ongoing low back pain of a soft tissue nature.
Dr Mitchell concluded the claimant retained the capacity to carry out any form of employment consistent with her education, training and experience. He found the only limitation would have been with respect to maintaining any fixed or awkward spinal postures without ensuring regular posture movement.
He found she had the capacity to work full time and there was no indication her future earning capacity had been affected by the consequences of the accident.
Dr Dryson, occupational physician
Dr Dryson assessed BBX on 9 December 2020 and provided a report dated 15 December 2020.
Dr Dryson reported BBX had ongoing pain in the region of the coccyx, particularly on sitting which is limited to about 20 minutes. She can stand for an hour if able to move around and can walk on flat ground for about 45 to 60 minutes. Coming down stairs can be difficult and her right leg can give way without warning. He also reported pain radiating down both legs, more marked on the right than the left.
Dr Dryson concluded BBX was not able to undertake activities involving lifting and carrying above medium physical demand, activities involving frequent to constant standing, sitting or bending. He recommended BBX undergo an MRI scan of the low back.
Dr Dryson reported since the accident BBX has had impaired memory and concentration, difficulty retaining information given to her by her boss and finds she has to use notes to remember. He felt she was not able to undertake work of high cognitive demand. He recommended a formal neuropsychological assessment.
BBX confirmed the swelling to both knees, inner thigh, ankles, hip and waist had resolved.
Dr Dryson reported BBX had been having nightmares and flashbacks in relation to the accident and was anxious on hearing sirens on the street.
Dr Dryson diagnosed a mild traumatic brain injury, an undisplaced fracture of the coccyx, low back pain, and bruising which had resolved.
Dr Dryson reported BBX is able to self-pace whilst working from home but may find it difficult to cope with the cognitive demands of her job if she is required to work in the office with an extended commute (at that time to Macquarie Park). He also noted she will require work where she is able to vary her posture on a regular basis between sitting, standing and walking. He concluded she was fit for her pre-injury job so long as it remained home based.
Dr Dryson provided a supplementary report dated 22 March 2022. He reviewed the report of the MRI scan of the lumbar spine of 20 January 2022 and the report of the MRI scan of the sacrococcygeal spine of 5 February 2022 and noted there was no evidence of any pathology. However, assuming BBX was still reporting low back pain he concluded she had developed a chronic pain syndrome and that pain was likely to persist for the future.
Dr Dryson reviewed BBX on 23 September 2022. He provided a report dated 11 October 2022. He reported her coccyx pain had improved and BBX could sit for 30 to 45 minutes at a time, could drive for 45 to 60 minutes but was limited because of right leg and thigh pain to walking for one hour. He reported ongoing low back pain.
Dr Dryson reported BBX remained “foggy”, her memory was impaired and she was forgetful.
Dr Dryson concluded whilst the MRI scan showed the undisplaced fracture of the coccyx had healed BBX’s complaints of ongoing low back pain suggested she also sustained a soft tissue injury to the lumbar spine.
He also concluded BBX had sustained a mild traumatic brain injury which had healed, noting neuropsychological testing showed no evidence of impaired cognitive function.
Dr Dryson concluded BBX has been able to work at her pre-injury level but due to her ongoing low back pain there may be some impairment in performance which may be reflected in reduced opportunities for future advancement. Dr Dryson agreed with Dr Mitchell that BBX may have future restrictions in relation to her low back pain, with respect of maintaining any fixed or awkward spinal postures without ensuring regular posture movement.
Dr Yajuvendra Bisht, psychiatrist
Dr Bisht assessed the claimant at the request of the insurer and provided a report dated 22 September 2022.
Dr Bisht reported BBX is still hypervigilant when in a motor vehicle, she still wakes up several times each night, partially due to lower back pain, remains edgy in day-to-day situations, and she still lacks enjoyment and is distant from people. He also reported she is not able to sustain concentration for prolonged periods at a stretch and has to take breaks at her workplace.
He concluded BBX suffered from post-traumatic stress disorder and an adjustment disorder as a result of the accident.
Dr Bisht noted the claimant had returned to her pre-injury duties and found that her capacity for employment was not limited by reason of her psychiatric injuries.
THE INJURY SUSTAINED BY THE CLAIMANT
I find as a result of the accident the claimant sustained a haematoma to the head, bruising and pain in the region of the right chest wall, swelling and pain to both knees, a minimally displaced fracture of the coccyx and soft tissue injury to the lumbar spine. Whilst the injury to the chest wall and both knees has resolved and the fracture of the coccyx has healed, I am satisfied having regard to the continuity of complaint by BBX supported by the opinion of Dr Mitchell and Dr Dryson that she continues to experience low back pain.
I am also satisfied having regard to the opinion of Dr Stewart that BBX sustained at most a mild traumatic brain injury and that any resultant cognitive and behavioural difficulties would have resolved within three to six months. I find BBX sustained post-traumatic stress disorder and an adjustment disorder as a result of the accident and having regard to the opinion of Dr Stewart and Dr Bisht I am satisfied her ongoing cognitive defects including impaired memory and concentration are as a result of her psychological injury.
Noting BBX has continued to suffer from low back pain for over three and a half years since the accident I am satisfied as to the chronicity of her condition and, having regard to the opinions of Dr Dryson and Dr Mitchell, accept that she is likely to have future restrictions in relation to her low back in maintaining any fixed or awkward spinal postures without ensuring regular posture movement. BBX attested as to the difficulty she experiences in sitting or standing for long periods and I accept that she will require future accommodations in the workplace so she can sit or stand, stretch or move around at will.
Whilst the evidence of both Ms Glancey and BBX suggests there has been some improvement in the claimant’s psychological coping, I am also satisfied that BBX continues to suffer from the following psychological symptoms:
· anxiety;
· amotivation;
· impaired memory,
· impaired concentration;
· hypervigilant in cars and fearful of driving;
· feeling edgy in day-to-day situations;
· loss of confidence;
· tendency to distance herself from others;
· indecision;
· avoidant behaviour;
· poor coping;
· easily overwhelmed, and
· difficulty with multitasking.
I also note that BBX has impaired sleep because of both her low back pain and her psychological symptoms.
Whilst I accept the claimant is able to do her pre-injury duties noting she has done so since January 2020 I accept that has been, in part, due to the accommodation of her employer, particularly in being allowed to largely work from home.
However, I am satisfied the claimant has sustained an impairment of her earning capacity where her ongoing psychological symptoms undoubtedly adversely impact the higher-level executive functioning required to secure promotion.
THE ASSESSMENT OF DAMAGES
Past economic loss
The claimant completed her HSC and obtained a Bachelor of Science (Geography and Biology) from the University of Sydney in 2004.
From July 2005 the claimant has worked in rail development projects for Transport for New South Wales (Transport), in its various guises.
On 24 April 2019 the claimant secured a role as a Transport Service Grade 9A (Program Enabling Analyst) earning a salary of $129,349 gross per annum. Following an internal re-structure, the claimant's job title was changed to Senior Analyst (Grade 9) in February of 2021. The role was located at Mascot but on 27 April 2021 the claimant was advised her employment would be relocated to Macquarie Park.
BBX states, having regard to incremental increases, her current salary is $146,988 per annum or $4,010.03 per fortnight in her current role as a Senior Analyst with Transport.
Other than the initial period of absence from work there is no dispute the claimant has continued to work in her pre-injury role and has received the benefit of incremental salary increases.
The claimant’s taxation returns disclose the following:
Year
Gross income
Net Income
Net weekly income
2016
$72,659.00
$55,303.00
$1,063.52
2017
$84,601.00
$62,948.00
$1,210.54
2018
$97,603.00
$71,615.00
$1,377.21
2019
$125,412.00
$88,970.00
$1,710.96
2020
$146,809.00
$105,367.00
$2,026.29
2021
$146,794.00
$103,764.00
$1,995.46
BBX was also studying a Certificate IV Project Management course at the Institute of Management at North Sydney. Prior to the accident the claimant completed the face-to-face component and subsequently completed the online component at her own pace receiving the certificate on 28 October 2019.
BBX said before the accident she had acted in a role where the trajectory was leading to a senior management role, a contract role with more authority and the ability to shape how public transport was moving. Significantly she stated, “public transport used to be my passion”. BBX said she no longer sees herself heading towards those roles as she fears there will be a lot of pressure, that you need to show you are capable and confident and the right person for the job. Her evidence was “that stress alone terrifies me”.
Following the accident BBX was offered an acting position as an acting Interface Manager between June 2020 and April 2021, a job which now pays between $180,682 and $201,340 per annum. BBX stated the opportunity commenced as an informal arrangement as her then Director wished to demonstrate to upper management that there was a need to create such a role for the business. The role was not formally established in the business structure until April 2021 after which BBX was paid at the higher grade.
BBX subsequently applied for the substantive role, interviewed but was unsuccessful in securing the position. Whilst not confirmed by her employer BBX is of the belief, she did not get the promotion because she could not sit and concentrate for long periods. She said she understood her manager had envisaged that she would eventually move seamlessly into that role, and whilst not told in so many words, she had the impression her performance in the period she acted was not up to standard and adversely affected her application.
Since March 2020 BBX has largely worked from home although earlier this year employees of Transport were asked to work one day a week in the office. BBX has been given the option of working in a city-based office although her substantive position is still at Macquarie Park. She said over the past year she would have been in the office only three or four times.
BBX described the difficulty she had experienced when she worked in the office. She said there are limited sit/stand desks and unless she can arrive in the office between 7.00am and 8.00am those desks are taken. She described the chairs as uncomfortable and said at the end of seven hours work, she walks away sore and exhausted. BBX said she is very conscious of her back pain and in meetings positions herself so she can stand easily and often takes an amenity break.
BBX conceded her employer took ergonomics and workplace health and safety seriously and she could ask to be allocated a sit/stand desk. She agreed Transport was a very accommodating employer for employees with a disability. However, she did not wish to remind her workplace she had an injury, that it impeded her at work and nor did she wish to make her colleagues feel uncomfortable in accommodating her. BBX said whilst she had not had an open conversation with her manager she understood she had been in a car accident, was still recovering and from time to time was sore.
BBX said at work she relies more on technology and reminders and she also relies on her colleagues more than she used to. She said she is shown leniency by her employer, for example, she is not required to attend the office even if there is a big meeting, she is permitted to dial in to workshops and she is not always invited to participate in long meetings but simply sent a copy of the minutes.
BBX said because she has worked from home she is not monitored on a day-to day basis by her supervisor and as a grade 9 employee it is expected she can work autonomously. She said working from home gives her the opportunity to take breaks when she needs it, to stretch, to walk around and to relieve her pain. She said regular breaks also enable her to maintain concentration. She said even though she logs on at 9.00am most days she returns to work after the children are in bed, “playing catch-up” until about 9.00pm. She said in the evening she may respond to emails, set up workshops and meetings for projects she had not completed during the day. BBX confirmed prior to the accident following the birth of her third child Transport had facilitated her childcare arrangements by permitting her to work short days on Thursdays and Fridays and longer days in the office from Monday to Wednesday. She stated she did not regularly work at night before the accident, although conceded it occurred occasionally. BBX said pre-accident she worked longer hours because she enjoyed her work and it was not a problem.
BBX said she no longer had the same approach to her work future, she is no longer “gung-ho” or excited about work. She conceded that missing the promotion had led to a lot of self-doubt about her ability and she was not as confident in the workplace.
BBX also noted that her physical injuries will make it difficult for her to perform physical tasks required in the industry such as project inspections on the track.
BBX states had the accident not occurred she is confident she would have moved seamlessly into the role of Interface Manager and that she is now in a position where it is unlikely that she will ever get to a senior role such as that. She considers she is probably stuck in her current position for the long term. BBX states she is concerned about her ability to continue to work full time once she is required to return to working from the office full time.
Period 15 May 2019 to 31 December 2019
Various certificates of capacity from Dr Hector provide the following information:
· unfit for work from 15 May 2019 - 2 June 2019;
· capacity for 6 hours a day, 2 days per week from 3 June 2019 - 7 June 2019;
· capacity for 6 hours a day, 3 days per week from 7 June 2019 - 21 June 2019;
· capacity for 6 hours a day, 4 days per week from 21 June 2019 – 26 July 2019;
· capacity for 6 hours a day, 5 days per week from 26 July 2019 - 16 August 2019;
· capacity for 7 hours a day, 5 days per week from 16 August 2019 - 13 September 2019;
· capacity for 7 hours a day, 4 days per week from 12 September 2019 – 6 December 2019, and
· on 9 December 2019 the claimant was certified fit for pre-injury work.
The claimant provided an excel spreadsheet setting out leave taken by the claimant from the date of accident until 3 January 2020 totalling 486.5 hours. The claimant asserts 318.5 hours (or 9.1 weeks) is accident related.
The claim for past economic loss is calculated at $1,713 net per week for 9.1 weeks in the sum of $15,588.30 plus loss of superannuation benefits calculated at 11% of the net loss in the sum of $1,714.71.
The claimant submits that the figure of 9.1 weeks concedes periods of leave which were not accident related including the October school holiday period and the Christmas period.
The insurer submits according to the leave records produced by Transport from the date of accident until the end of December 2019 the claimant has taken leave totalling 64.42 days calculated as follows:
· annual leave of 26.67 days;
· sick leave (with a medical certificate) of 21.32 days;
· sick leave (without a medical certificate) of 2.43 days, and
· long service leave of 14 days
The insurer submits included in that total is leave around the Labour Day public holiday on 7 October 2019 and annual leave days on 23, 24, 30 and 31 December 2019 which are not accident related. The insurer is prepared to concede half the annual leave and all of the sick leave as being accident related.
The insurer submits the claimant should be awarded damages for past economic loss calculated at $1,713 net per week for 7.45 weeks in the sum of $12,761 plus loss of superannuation benefits calculated at 11% of the net loss in the sum of $1,403.
The parties agree the claimant was earning the sum of $1,713 net per week as at the date of accident.
The claimant also uploaded to the portal an excel spreadsheet marked AD9 which details the claim for leave totalling 318.5 hours. It does not include leave taken by the claimant on 7 October 2019 or on 23, 24, 30 and 31 December 2021 assuaging the insurer’s concerns.
The dispute relates to leave of 1.65 weeks. I am satisfied as to the reliability of the claimant’s evidence and accept her assertion that she has taken leave totalling 9.1 weeks between the date of accident and 3 January 2020, although I note no claim is made for leave after 5 December 2019.
Accordingly, I propose to award past economic loss calculated at $1,713 net per week for 9.1 weeks in the sum of $15,588.30 plus loss of superannuation benefits calculated at 11% of the net loss in the sum of $1,714.71.
Period April 2021 to date
The claimant asserts she had been earmarked for additional promotional opportunities prior to the accident. Following the accident, she was offered an acting position in a superior role as an Acting Interface Manager between June 2020 and April 2021, a job which earns between $177,000 and $197,000 per annum. The claimant submits during that period, she continued to struggle with accident-related disabilities including inability to sit for long periods, difficulty concentrating, difficulty with prolonged meetings, difficulty managing other employees and difficulty coping with the requirements of more senior level management.
Despite applying for the full-time role, having acted in it for almost a year, the claimant was overlooked for the role. The claimant submits she missed out on the promotion because of her accident-related limitations, in that she was unable to put in extremely long hours, she had difficulty concentrating and required frequent breaks.
Accordingly, from April 2021 to date a claim is made for the difference between the claimant’s current earnings and her earnings in the role of full-time Interface Manager, a loss of approximately $45,000 per annum or $750 net per week.
The insurer submits that the claimant’s assertion that she did not secure the promotion is speculative and not proven. During a teleconference on 15 September 2022 the insurer asked the claimant to provide the details of her supervisors so they could independently verify the claimant’s assertion that she failed to secure the promotion because of poor performance.
I declined to direct the claimant to disclose the particulars of her managers and stated at paragraph 8 of my teleconference report of that date:
“I indicated where the claimant is concerned about the security of her job, and where the onus is on the claimant to prove her case, I did not propose to direct the claimant to disclose the particulars of her managers as sought by the insurer. I agree the insurer will be entitled to ask me to draw an inference that evidence from the claimant’s manager would not assist her claim, although I indicated I would reserve my position as to whether such an inference is justified depending on the evidence”.
The evidence of BBX was that she was disappointed when she did not secure the role of Interface Manager having acted in the role for 10 months. BBX was acting in the role of Interface Manager when Dr Rastogi recorded her complaints of impaired concentration, poor retention, forgetfulness, avoidance, poor coping, being easily overwhelmed and struggling with decisions. Similarly, Dr Dryson reported in December 2020 that BBX had impaired memory and concentration and difficulty retaining information given to her by her boss.
Whilst I accept BBX’s psychological symptoms made it difficult for her to cope with the demands of the higher duties’ role, I cannot be satisfied in the absence of corroborative evidence that this was the reason why she did not secure the full-time role of Interface Manger. There is no evidence before as to the qualifications and experience of the other applicants for the role, nor is there any evidence to establish that BBX’s performance in the acting role was determinative of her failure to secure the full-time role.
Accordingly, I decline to assess damages for past economic loss for the period April 2021 to date.
I assess damages for past economic loss in the total sum of $17,303.01.
Fox v Wood
Fox v Wood refers to the claimant’s entitlement to recover taxation payments deducted from statutory payments. The parties have agreed the claimant is entitled to recover the sum of $1,556 in respect of those payments. I assess damages accordingly.
Future economic loss
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in her most likely future circumstances.
A claim for future economic loss is made on the basis the claimant’s most likely future circumstances was to continue in the area of rail development/project management, with increased earnings and responsibilities until probably retirement at age 67.
The claimant submits by reason of her injuries she is now far less likely to secure opportunities for promotion and career advancement. The claimant submits that the combination of her physical symptoms, namely, her lower back pain and restrictions with sitting and standing and her psychological symptoms, namely loss of confidence, indecisiveness, forgetfulness and lack of concentration give rise to an incapacity.
The claimant submits that her current long-term employer is likely to be more sympathetic to her restrictions than another employer and if she were minded to seek employment outside of Transport or where a restructure jeopardized her role her restrictions will substantially affect her capacity to secure employment on the open labour market.
BBX submits her education and work history had positioned her for significant opportunities for career advancement and increased remuneration and the accident has made her less capable of capitalising on these opportunities.
Having regard to the claimant’s age, her strong employment history and her pre-accident earning capacity the claimant submits an appropriate buffer for the impairment of her earning capacity is $400,000.
The insurer submits no damages should be awarded for future economic loss because:
· the claimant is currently working full time and has been doing so since 9 December 2019;
· the claimant has continued to enjoy an increase in earnings since the accident;
· Dr Stewart opines there is no evidence of cognitive impairment based on the neuropsychological assessment, due to the accident, and that any cognitive or behavioural difficulties would have resolved three to six months after the accident;
· Dr Mitchell opines the claimant retains the capacity to carry out any form of employment consistent with her education, training and experience, can carry out work duties on a full-time basis and there is no indication her future earning capacity has been affected as a consequence of her injuries, and
· Dr Bisht opines the claimant’s current capacity for employment is not restricted or limited as a result of the psychiatric/psychological injuries caused or materially contributed to by the accident. She will retain the same capacity in the foreseeable future.
Unfortunately, neither Dr Bisht nor Dr Mitchell appear to have obtained any history from the claimant about the possibility of promotion or whether the claimant would have the capacity to undertake more senior roles. Indeed, Dr Mitchell only focused on the claimant’s physical impairment and did not address the impact of her psychological symptoms on her earning capacity. Dr Bisht reported the presence of psychological symptoms but concluded BBX’s return to pre-injury duties meant her capacity for employment was not limited by reason of her psychiatric injuries.
The insurer submits the rule in Graham v Baker (1961) 106 CLR 340 applies. It is not merely sufficient for a claimant to demonstrate a diminished earning capacity, but it is also a requisite for a claimant to prove that the diminution of earning capacity is or may be productive of financial loss.
The claimant, however, relies upon the principle established by NSW v Moss [2000] NSWCA 133 at where the court stated at [71]:
“Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker[1961] HCA 48; (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed[1961] HCA 14; (1961) 105 CLR 549 at 566 per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities.”
I am satisfied the accident has caused a change in the claimant’s most likely future circumstances. Whilst the claimant has not established that she failed to secure the role of Interface Manager because of injury caused by the accident I am satisfied that she has suffered an impairment of her future earning capacity.
It is now three and a half years since the accident and I agree that the combination of her physical symptoms and her psychological symptoms give rise to a diminished earning capacity. BBX will need to be accommodated by her employer in permitting her to change her posture, to sit and stand at will and to take breaks during the working day. Although she is currently able to self-pace whilst largely working from home there is no guarantee this accommodation will continue and her impairment is only likely to be exacerbated by future travel demands.
However, more significant is the likely impact of the claimant’s ongoing psychological condition on her future career trajectory. I accept the claimant’s future trajectory uninjured was towards a senior management role but as a result of her anxiety, poor coping, tendency to feel overwhelmed, indecisiveness, avoidant behaviour and loss of confidence it is unlikely she will secure a senior management role, absent a significant improvement in her current condition.
Noting in assessing damages I am required to undertake an exercise in possibilities not provide proof of probabilities I am satisfied as a result of the accident the claimant has sustained a significant impairment of her future earning capacity. In calculating the amount of the buffer, I note BBX is a significant earner and she is currently only 38 years of age with a future working life of 29 years. I also take into consideration the usual vissisitudes of life. I consider an appropriate buffer for the impairment of that earning capacity to be the sum of $150,000 inclusive of loss of superannuation benefits and I assess damages accordingly.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the findings set out above:
Past Loss of earnings (incl superannuation) $17,303.01
Future loss of earnings (incl superannuation) $150,000.00
Fox v Wood $1,556.00
TOTAL DAMAGES ASSESSED $168,859.01
The claimant’s economic losses are to be reduced by and the insurer is to have credit for statutory payments pursuant to s 3.40 of the MAI Act in the sum of $12,715.89.
COSTS AND DISBURSEMENTS
I refer to the claimant’s schedule of costs and disbursements.
A claim was made for three conferences. Whilst the insurer submitted only two should be allowed, I consider three to be appropriate noting there were two statements from the claimant, one from BCQ and it was reasonable for the claimant to confer with counsel prior to the assessment conference.
Disbursements as claimed were otherwise agreed.
Costs and disbursements are assessed in accordance with the attached Damages and Costs Calculator in the total sum of $38,038.57.
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