Bellchambers v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bellchambers v Allianz Australia Insurance Limited [2024] NSWPIC 384
CLAIMANT:	Stephen Bellchambers
INSURER:	Allianz Australia Insurance Limited
MEMBER:	David Ford
DATE OF DECISION:	17 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages under section 7.36(3) and (4); claimant was a front seat passenger in a motor vehicle involved in a collision with the insured vehicle; insurer admitted liability and no allegation of contributory negligence; claimant suffered major depressive disorder and injuries to his cervical spine, right shoulder, and right knee, resulting in an assessment of whole person impairment of 15%; claimant is a self-employed farmer and environmental consultant; 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. On the issue of liability for the claim the Allianz’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.1. The amount of damages assessed in respect of this claim is $259,509 which includes the statutory benefits paid by the insurer.2. 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 are the regulated costs.3. Attached to this certificate are reasons for my assessment.4.

STATEMENT OF REASONS

INTRODUCTION

On 30 March 2019, Stephen Bellchambers (the claimant) was a front seat passenger in a motor vehicle (a Hyundai) travelling north along the Barton Highway at Murrumbateman. It then transpired, the motor vehicle being driven by the insured driver (a Commodore) entered the intersection at McIntosh Circuit attempting to turn right onto the Barton Highway, failed to give way to the Hyundai and a collision occurred between both vehicles. It is estimated the Hyundai was travelling at a speed of 100kmph. The police report records the impact was significant end caused both vehicles to spin violently around, with the Hyundai slightly airborne, as it did so.
Police and ambulance attended the scene of the accident, and he was transported by ambulance to Canberra Hospital where he was admitted for a few hours. In the Application for Personal Injury Benefits dated 29 May 2019, he states he suffered the following injuries.
(a)    back sore between shoulders broken rib, rib 1 below collarbone on the right side;
(b)    very extensive bruising, whiplash;
(c)    loss of vision in one eye for several minutes.
(d)    headaches since tingling in right side of face neck, shoulder and right arm;
(e)    haematoma on inside of the left knee.
(f)    torn meniscus damage to left knee.
(g)    dull pain in lower right side of head (where meets neck), and
(h)    aggravated arthritis in upper mid and lower back.
The solicitor for the claimant lodged a schedule of damages and submitted the claimant suffered the following injuries in the subject accident.
(a)    traumatic brain injury.
(b)    cervical spine disc herniation at C6/7 level with impingement of the exiting C7 nerve root.
(c)    post-concussion syndrome.
(d)    canal stenosis at the T10/11 level.
(e)    partial rotator cuff tear in the right shoulder.
(f)    right carpal tunnel syndrome.
(g)    fracture of the right 1^st rib.
(h)    compression of the right axillary vein.
(i)    torn meniscus on the right knee.
(j)     large haematoma and Baker's cyst on the left knee.
(k)    sleep apnoea, and
(l)    post-traumatic stress disorder.
At the time of the accident, the claimant was the proprietor of an environmental consultancy business trading as Rising Sun Bunyips (Bunyips}. He worked 50-55 hours per week and the business offered services in cultural environmental and rural consultancy, contracting disability support services. It also engages an indigenous work crew. The business was engaged by government agencies such as Crown Lands, Local government Department of Forestry NSW and to local land services as well as private land managers, farmers, and private forestry. At the time of the accident, the business had existing contracts with Crown Lands Snowy Valley Council and Wagga Wagga Council. It employed approximately 10 regular casual employees.
The claimant also operated a cattle farming operation (farm) trading as Rising Sun Rural (Rural). He carried on this business with his wife, working approximately 5-10 hours weekly on the farm. Prior to the accident, he undertook breaking in of horses for local farmers and the local police force for a fee. At the general assessment conference, it was conceded there was no claim for past and future economic loss in respect of the rural business (Rural).
Since the accident, he has not been able to engage in either full time or part time employment in respect of his businesses. Since he is self-employed, both parties instructed forensic accountants to prepare economic loss reports. He was born in 1974 and is presently 50 years of age. The Medical Service by virtue of Certificates and Reasons of Medical Assessor Nagesh dated 4 October 2023 determined his whole person impairment in respect of psychological address is 15%, and accordingly, he is entitled to damages for non-economic loss,
The insurer wholly admitted liability by letter dated 25 November 2021 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)    future economic loss, and
(d)    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 his 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.

I refer to the statement of the claimant dated 9 February 2023 and in particular I refer to the following paragraphs.
“25. Since the accident I have been unable to return to my pre accident duties at Rising Sun Bunyips. I really want to return to running my business, as it has a huge potential to generate profits and to continue its growth. As a result of my injuries, I now no longer have the cognitive ability to write scientific papers or environmental reports. I struggled to recall the name of plants and what chemical mixture quantities are needed for weed control. I'm unable to concentrate on task and suffer from exhaustive mental fatigue when I try. Physically I am unable to do activities such as fencing or weed spraying due to the amount of heavy lifting carrying and walking required. My role offered required work being completed in remote locations where there is often a lack of telecommunication reception, and which poses a huge risk for me with my injuries and impairments.
26. My main employee and right-hand man is Ron. He's still employed by Rising Sun Bunyips; however, his hours have been reduced from full time to 7 hours each week and he is now only completing work on the farm which is technically work for Rising Sun Rural. I physically am no longer able to perform any of the farm work, particularly breaking in horses which is essentially training and building a relationship with the horse for the rider. At present we have about 50 horses just sitting on the property as I'm simply not able to train them. My children now travelled out to the farm in the mornings before school to assist with checking feeding or watering the livestock and general farm maintenance ran assist with penny and tagging cattle fencing repairs work that requires the tractor lawn mowing and other similar tasks.”
I also refer to the further statement of the claimant dated 7 June 2024 and I note the following paragraphs:
“15. After the accident the insurer engaged a rehabilitation provider a person by the name of Allison to help me gain back some work capacity. After several discussions with Allison and my doctor it was agreed that I would try to undertake some duties on the farm under the supervision of one of my employees from Rising Sun Bunyip, Ronald Grosvenor. I tried to work 2 to 3 days per week undertaking light duties for between about 1 to 3 hours and do this for about 5 to 6 months. I did not get paid I continued to payroll, and I also had to pay Jesse, my oldest son, for doing the work Ronald would have undertaken at Rising Sun Bunyip.
17. To date, I have not been able to engage in any paid employment and after the work trial I have not tried to undertake any duties on the farm, also the contracts that were replaced at the time of the accident have now expired. I was not in a position to reapply for them due to my injuries and my children did not have the experience.
18. In addition to not renewing those contracts, I have been offered further work usually by telephone, including work from Local Land Services which was budget driven and provided short term contracts of 3 to 6 months. I told him I was not in a position to take any further work due to my injuries. I was also asked to undertake work for Pine Auditing Hume Forest and Wagga Wagga council but again, turned that work down due to my injuries.
19. My children have vastly taken over working in our family business. They also pursue their studies on the side., I have two daughters, one who is studying equine therapy and social work and the other one is studying mental health and will commence equine therapy studies next year. I am hoping that their experience can assist with the management of our farm and to continue our “connecting to country” initiative as mentors within our family business Rising Sun Bunyips
20. My eldest son Jesse has been assisting with the family business Rising Sun Bunyips which is a rural environmental and cultural consultancy and contracting business. As I have not been able to undertake any work in the business, he has been assisting with weed spraying, fencing, some cultural work for the Council i.e... to clear some land, set up market gardens, or assist nearby neighbours with any local work. If it wasn't for my son, Rising Sun Bunyips would have probably shut down by now.”
The solicitor for the claimant served several reports from Dr Matthew Howard treating orthopaedic surgeon. In his initial report dated 29 May 2019, Dr Howard records, inter alia, “head strike to dash”. In a further report dated 26 June 2019, he records the claimant had an MRI scan of the brain and cervical spine, which he stated, “these are fairly quiet”. In a report dated 22 August 2019, he reported the following:
“I have reinjected his subacromial space as this did help him before. The MRI scan of his shoulder shows some partial thickness tearing, but I am not convinced that he needs surgery here.”
I refer to the report of his treating consultant neurologist Dr Ram Malhotra dated 6 June 2019 where he states as follows:
“Stephen developed a lot of bruising and torn meniscus in the right knee and fracture of the first rib and has developed tingling sensations in the under the right eye which at times goes into the right side of the face and down into the right upper limb Stephen denied any symptoms in the left upper limb. Stephen has trouble remembering short term stuff also Stephen does not feel much strength in the right arm, and he cannot do the manual work he is supposed to do. He is sore in the back of the neck and since the accident he cannot get his feet warm, and they are always hot”.
I also refer to the further report of Dr Ram Malhotra dated 2 October 2019 where he states, inter alia, the following:
“The neurological examination revealed normal cranial nerves and the limbs examination revealed normal tone, power deep tendon reflexes, sensations and coordination. The nerve conduction study of the right upper limb revealed mild carpal tunnel syndrome. The rest of the right upper limb sensory and motor conduction values are all within normal limits.
The MRI brain and cervical spine was normal excluding any trauma related cause of his short-term memory loss or right upper limb symptoms. I have not found any organic cause for his ongoing symptoms and will suggest seeing a psychologist to address psychological/ non-organic cause for his ongoing symptoms. I have not made a follow up appointment but will review him again if the need arises.”
I refer to the report of Dr Richard Lawson, hand nerve and micro surgeon, dated 1 March 2021. He reports the following:
“At the moment, he finds that his hands will go dead throughout the day and particularly at night and he has to shape them out for relief. When he moves his neck, he can provoke symptoms of numbness and pain radiating towards his shoulder and towards his face. If he lifts his hands up and uses them over head, they very quickly become weak and numb. He feels that his grip is both weak and his fists are tight. He has previously had a right ulnr in situ decompression by Doctor Howard in Wagga.”
The claimant was seen on a medico-legal basis by Dr Ben Teoh, and I refer to his report dated 25 June 2021. He had provided a comprehensive report. He is of the opinion the claimant's psychiatric impairment is caused by the injury because of the motor vehicle accident. He believes he has significant physical and mental conditions and diagnosed him suffering from a major depressive disorder. He also opined he will sustain a loss of working capacity in the future, and he has significant depressive symptoms and physical conditions that have become chronic.
He was also seen on a medico-legal basis by Dr Paul Teychenne, consultant neurologist, and I refer to his report dated 29 April 2021. He has also provided a comprehensive report and obtained an extensive history from the claimant. He carried out a physical examination and reviewed imaging reports and various treating medical reports. He noted the claimant’s disabilities as reported to him on page 6 of his report, and on page 19 of his report, he diagnosed the claimant as having an incomplete central cervical cord lesion and a traumatic brain injury. He opined the following.
“The transient period of amnesia with a hit to the head severe enough to cause a visual deficit in his right eye, could produce a traumatic brain injury. His cognitive deficits were certainly consistent with a traumatic brain injury.”
The solicitor for the claimant served two reports from Dr Sikander Khan. In his first report dated the 2 March 2021, he records the following on page 2 of his report:
“Following released from hospital he saw his General Practitioner, Dr Darwiiche at the TMT Family Medical Centre. He was told that he had suffered from brain trauma as his head hit the dashboard twice.
He had seat belt bruising. The left knee injury had caused a haematoma and rupture of a Baker’s cyst. He developed loss of hearing following the accident. The right arm started to become numb especially on use. He was referred to a neurologist at the Royal North Shore Hospital. MRI scans were carried out of the base of the neck and the neck itself.
Mr Bellchambers runs a farm. He is self-employed and works for Rising Sun Bunyips contracting for maintenance of farms and lands. He has remained off work since the accident. He has been cleared for work doing 4 hours per day only working with his left arm but has not been able to take on any new work.
On Page 6 of his report, he summarises the injuries sustained by the claimant in this subject accident which, inter alia, includes head injury with traumatic brain trauma.”
On page 9 of his report, he states the following:
“Your client is unfit for his preinjury normal duties but would be fit for part time selective duties not involving at or above shoulder level activities with weightlifting restriction of less than 5 kg with his right arm and avoiding repetitive heavy lifting and pushing and pulling type work, working on a part time basis doing about 20 hours per week and increasing this depending on his future progress.”
In his second report dated 14 June 2024, Dr Khan records the claimant’s present disabilities and complaints on page 3 of his report. He carried out a physical examination of the claimant and once again, states he is of the opinion the claimant suffered a head injury with traumatic brain trauma. On page 10 of his report, he states the following regarding his capacity/fitness for work:
“Your client remains unfit for his pre-injury normal duties, but would be fit for part time selective duties, not involving at or above shoulder level activities, with weightlifting restriction of not of less than 5kg with his right arm and avoid repetitive heavy lifting and pushing and pulling type of work doing part time hours of about 15 hours per week and increasing, depending on his future progress.”
A report was also served from forensic accountants, Furzer Crestani dated 23 March 2023. The accountants have reviewed economic loss documentation which was available to them at that time. On page 9 of the report, they state the following:
“Based on the available information we are not in a position to determine.
(a)the apportionment of actual trading results between the claimant and Mrs Bellchambers in the business and
(b)the business projected annual turnover and net profits based on the claimant’s intentions to further build up the business and secure more work and contracts.”
As an alternative approach, we consider a measure of the claimant's earning capacity, but for the accident, is reasonable remuneration in the open labour market. The claimant instructed an appropriate employment position for his skills and expertise, but for the accident, would have been a senior project officer for the National Parks and Wildlife Service. Based on the job advertisement posts on 1 March 2023 at Attachment B, which states an annual salary of $116,211 and $128,061 plus superannuation and annual leave loading,

Submissions made by the insurer.

I refer to the submissions of the Insurer dated 19 June 2024. It is submitted following the accident; the claimant was taken to Canberra Hospital by ambulance and the ambulance reports no problems with his neck and does not record the claimant hitting his head. There is also no record in the hospital notes of any injury to his head nor was there any history taken of having hit his head. A CT scan of his brain taken on 16 April 2019 showed no haemorrhaging fractures or other problems. Furthermore, a CT scan of his cervicothoracic spine showed right shoulder showed some degenerate disease but no evidence of any acute fracture of any of the vertebrae. It also recorded there was no evidence of any herniation of any disc or any bruising involving the cervical or thoracic spine.
It is also submitted Medical Assessor Cameron in his Reasons and Certificate noted the MRI off the brain taken on 7 June 2019 was recorded as showing no abnormalities, and he concluded there was no evidence the claimant sustained a traumatic brain injury, contrary, to the findings apparently made by Dr McLaren the claimant’s general practitioner (GP). I also note paragraph 58 of the submissions as follows:
“58. Subsequent to that time, the report from Messrs Vincents of 8 April 2024 and then served it on the claimant’s solicitors. The accounting evidence is dealt with below, but in short, the accounting evidence does not show any loss of income by the trusts through which the businesses were run, whatsoever. Rather it shows that the trusts’ income remained at a level that was at or higher than his pre accent income. Nor does it show any significant increase in labour expenses.”

The insurer arranged for the claimant to be examined on a medico-legal basis by Dr Graham Vickery and I refer to his report dated 5 October 2021. He was of the opinion there was no psychological incapacity to engage in pre accident occupational activities in the future, directly due to the motor vehicle accident, nor is there any psychiatric treatment required.
He was also examined on a medico legal basis by Dr Ross Mellick, consultant neurologist, and I refer to his report dated 8 June 2022. He obtained a detailed history from the claimant and noted he has gained in excess of 30kg in weight since the accident. He diagnosed the claimant sustained superficial soft tissue injuries without evidence of any deeply cited organically determined neurological injuries. He believed psychologically determined symptoms were now present. He also disagrees with the comment that concussion occurred in the accident in his later report, dated 28 May 2024, he states the following on page 5 of these report:
“Although there is a complaint also of impairment of memory there is no history of a significant head injury or evidence of retrograde or anterograde amnesia nor of disordered consciousness and nothing to suggest the occurrence of concussion. MRI scans have been performed subsequent to the injury and no evidence of intracranial pathology or a concussive injury has been identified. That is in keeping with the clinical assessment. Mr Bellchambers does not exhibit any indication of cognitive impairment in the circumstances of the neurological assessment.”
I also refer to the report of Dr Jane Lonie, consulted clinical neuropsychologist, dated 26 March 2020. This report was also relied upon by the solicitors for the claimant. She carried out a neuro psychological evaluation of the claimant and provided a comprehensive report. I note the following paragraphs commencing at page 8 of her report:
“54. Neuropsychologically Stephen is exhibiting mild impairment of working memory relative to his age and education contemporaries; a relative weakness in recalling new verbal information following a delay as compared to in the immediate term; a relative weakness in auditory verbal memory as compared to visual memory; a relative weakness in general intellectual ability as compared to immediate and visual memory and a relative weakness in perceptual reasoning as compared to visual memory. That is to say, Stephen is exhibiting a number of unusual and atypical discrepancies in memory and intellectual performance of a magnitude sufficient to assign clinical significance.
59. The findings indicate that Stephen would benefit from ongoing management and treatment in relation to his psychological symptoms. I would recommend Psychiatric input, if indeed this has not already been initiated. It is likely Stephen will require ongoing treatment over a number of years for his psychological symptoms.
60. It would be important to revisit Stephen’s cognitive functioning following any significant improvement in or resolution of his psychological symptoms. We will be better placed to determine the cognitive impacts of any traumatic brain injury sustained as a result of the MVA at such time.”
I note the solicitor for the claimant did not arrange for a refresher medical examination with Dr Lonie, nor did they provide her with copies of the medico-legal reports which were obtained subsequently by both parties.
As stated above, the insurer obtained reports from Vincents forensic accountants and in the final report dated 8 April 2024, they concluded Furzer Crestani calculations of economic loss significantly overstate the claimant’s economic loss and ought to be wholly disregarded. They further concluded the claimant suffered an economic loss of $10,200 over the years ending 30 June 2020 ($3,200) and 2021 ($7,000).

Reports from the medical service

I refer to the Certificate and Reasons of Medical Assessor Nagesh dated 4 October 2023. He assessed the claimant suffered from a Major Depressive Disorder because of the accident. He recorded the claimant as suffering the following current symptoms, which included depressed mood anxiety, insomnia, fluctuating appetite, lack of energy, and motivation diminished ability to concentrate, unable to enjoy anything at the moment and feelings of worthlessness. He noted the claimant was at that time taking anti-depressant medication and he also noted there were no inconsistencies at the time of the assessment.
I also refer to the Certificates and Reasons of Medical Assessor Cameron dated 27 February 2023. He assessed him as suffering from soft tissue injuries to his cervical spine and head because of the accident. On page 8 help his reasons under the heading “Causation and Reasons” he states the following:
“In the motor vehicle crash on 30 March 2019, Mr Bellchambers sustained soft tissue injuries to his cervical spine he may have sustained other soft tissue injuries given the major impact. There is no evidence that he sustained a traumatic brain injury. It is medically incorrect, and unreasonable, to say that he sustained a incomplete central cervical cord lesion”.

REASONS

Non-economic loss

The claimant is entitled to damages for non-economic loss. The solicitor for the claimant has submitted a sum of $450,000 for such damages, and in response the insurer has submitted a sum of $120,000. In determining the appropriate amount to be awarded to the claimant I was assisted by the reports Dr Malhotra, Dr Ben Teoh and Drs Vickery and Mellick. At the assessment conference, the claimant maintained he struck his head on the dashboard of the Hyundai in the accident, and stated this incident was recorded in dashcam footage of a motor vehicle travelling behind the Hyundai at the time of the accident. Police records make no mention the dashcam footage recording the claimant sustaining such injury.
In the claimant’s submissions dated 14 June 2024, it is again submitted the claimant suffered a traumatic brain injury in the accident. I do not accept he did sustain such an injury, and, in this regard, I prefer the opinions expressed by Medical Assessor Cameron and Dr Mellick.
I do accept the claimant has sustained a Major Depressive Disorder as confirmed by the Medical Service and he is still suffering from this psychological injury. However, I also accept the opinion expressed by Dr Mellick, that the claimant only sustained superficial soft tissue injuries in the subject accident and in the years following the accident, I determine he has sufficiently recovered from these physical injuries and is now left only with ongoing psychological disorders.
I therefore consider an appropriate allowance for non-economic loss, having regard to his age and his injuries and disabilities, is the sum of $160,000.

Past loss of earnings

At the assessment conference senior counsel for the insurer submitted I should allow a sum of $25,000 by way of a buffer for past loss of earnings and superannuation. In the most recent submissions, counsel for the claimant, submitted I should allow a sum of $578,565 including superannuation. In earlier submissions on behalf of the claimant dated 8 March 2022, it was submitted compensation for both past and future loss of earnings should be assessed on a buffer basis. I consider it appropriate an award for such losses should be way of a buffer only. The economic loss documentation provided to Furzer Crestani did not assist them in providing a recent schedule of past loss of earnings. Indeed, they suggested an alternative submission on the basis the claimant, but for the accident could pursue employment as a senior project officer for the National Parks and Wildlife Service.
The claimant submits he has been unable to engage in either full time or part time employment in his businesses since the date of the accident. I do not accept this submission. I find his physical injuries may have restricted him for several years in engaging in full time employment activities, and to some extent his psychological injuries, however, it is apparent he is reluctant to resume employment, in circumstances where I find it is unreasonable for him to take this stance.
Senior Counsel at the assessment conference submitted there were issues in relation to the claimant’s credit having regard to his questioning of the claimant regarding information he has provided to his accountant and also his persistence in claiming he suffered a traumatic brain injury. The claimant conceded his Business Activity Statement (BAS) statements for Bunyips had only been lodged up until June 2020. When questioned about the financial statements of Bunyips, I found his responses to be evasive and unsatisfactory. Furthermore, I prefer the conclusions of Vincents, Forensic Accountants in their final report 8 April 2024.
I therefore consider it appropriate to allow an amount for past loss of earnings by way of a buffer in the sum of $50,000 including superannuation.
The insurer has made statutory payments totalling $24,058.46.

Future loss of earnings

The solicitor for the claimant submitted $1,232,895 for future loss of earnings and superannuation. Senior counsel for the insurer submitted I should make no allowance for future loss of earnings. In the circumstances, I find the claimant is capable of returning to his pre-accident employment activities with his businesses on an immediate gradual basis and his psychological injuries will not prevent him from doing so.
I find the most likely future circumstances for the claimant is he will suffer a diminution in his earning capacity for the future, but not for a lengthy period, and therefore, in the circumstances, I consider it appropriate to allow an amount for future loss of earnings including superannuation by way of a buffer in the sum of $40,000.

Fox v Wood HCA 148 CLR 438

The parties have agreed the amount to be awarded for Fox v Wood is the sum of $9,509.

Assessment of damages summary

Under sub-s 7.36 (1)(b) of the Motor Accident Injuries Act 2017 (MAI Act). 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   $160,000
past loss of earnings   $50,000
future loss of earnings   $40,000
Fox v Wood   $9,509
total of economic losses and non-economic loss $259,509
reduction for contributory negligence                    Nil
TOTAL DAMMAGES ASSESSED   $259,509.

Costs and disbursements

I assess the claimant's legal costs and disbursements in accordance with the MAI Act and the Motor Accident Injuries Regulation 2017 as scheduled fees and agreed disbursements.

CONCLUSION

On the issue of liability for the claim Allianz '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 $259,509 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, is assessed in accordance with the MAI Act as the scheduled costs and agreed disbursements.

LEGISLATION

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

[2024] NSWPIC 384

17 July 2024