BWU v AAI Limited t/as GIO - [2024] NSWPIC 297

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BWU v AAI Limited t/as GIO [2024] NSWPIC 297
CLAIMANT:	BWU
INSURER:	AAI Limited trading as GIO
MEMBER:	Elizabeth Medland
DATE OF DECISION:	5 June 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Injuries Act 2017; assessment of damages; no issue as to liability; claim for past and future economic loss; no claim for non-economic loss, however, noted that no Commission medical certificate as to the primary physical injury; claimant was aged 19 at the time of the accident; claimant suffering migraines and a psychological injury caused by the accident which has significantly impacted her earning capacity in the past and into the future; complex medical history; future economic loss claim made on basis of claimant’s stated intention to become a psychologist; Held –the claimant is unlikely to reach such goal but for the accident; future economic loss awarded on a buffer basis; total damages awarded $472,416 plus costs.
DETERMINATIONS MADE:	In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. The amount of damages for claim is $472,416.00 2. The amount of the claimant’s costs in the matter is $47,729.17 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

On 22 April 2019 BWU (the claimant) suffered injury arising from a motor accident. The claimant was the driver of a Hyundai Getz along the Pacific Highway. A Holden Colorado travelling in the opposite direction crossed to the incorrect side of the road causing a head on collision with the claimant’s vehicle.
The accident can clearly be described as a serious one. The NSW Police Report noting that the claimant’s vehicle was impacted with such force it was pushed backwards approximately 16 metres, rotating in a clockwise direction before coming to a stop on the incorrect side of the road.
The claimant lodged a claim for statutory benefits under the Motor Accident Injuries Act2017 (MAI Act) with AAI Limited trading as GIO (the insurer), the compulsory third party insurer of the Holden Colorado, on or about 15 July 2019. A claim for damages was subsequently lodged at some point thereafter.
Whilst the relevant liability notice is not before me, I am advised that liability has been admitted by the insurer. The matter left for determination is the amount of damages the claimant is entitled to under the MAI Act.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) to determine the claim for damages. The matter has been allocated to me for determination as a Member of the Commission’s Motor Accident Division.
An application to the Commission had also previously been lodged to assess the claimant’s level of whole person impairment for injuries caused by the motor accident. Medical Assessor Hong and Medical Assessor Dixon and Medical Assessor O’Neil have assessed the claimant. The claimant has been certified as not reaching the non-economic threshold.
The claim for damages is therefore limited to a claim for past and future economic loss.
The matter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 297
Decision Date: 5 June 2024

CaseChat Overview and Summary

In the case of BWU v AAI Limited t/as GIO, the claimant, BWU, sought damages for past and future economic loss resulting from a motor accident. The dispute was heard by the Supreme Court of New South Wales, with no issue as to liability. The claimant, who was 19 years old at the time of the accident, suffered from migraines and a psychological injury which significantly impacted her earning capacity, both in the past and into the future. Notably, there was no claim for non-economic loss and no Commission medical certificate as to the primary physical injury. The claimant had a complex medical history and had intended to become a psychologist; however, it was determined that she is unlikely to reach such goal but for the accident.

The court was tasked with assessing the appropriate amount of damages for both past and future economic loss. The legal issues included the quantification of past economic loss and the assessment of future economic loss on a buffer basis, considering the claimant's intention to pursue a career in psychology and the impact of the accident on her earning capacity. The court also needed to determine whether the claimant's intention to become a psychologist was a realistic and achievable goal, and if so, how much of her future economic loss could be attributed to the accident.

In delivering its decision, the court found that the claimant was unlikely to achieve her goal of becoming a psychologist but for the accident. The court awarded future economic loss on a buffer basis, recognising the significant impact of the accident on the claimant's earning capacity. The total damages awarded amounted to $472,416, plus costs. The court emphasised the importance of considering the realistic prospects of the claimant's career aspirations in the context of her injuries and the overall impact of the accident on her life.

The court made an order for the defendant to pay the claimant $472,416 in damages, along with costs of the proceeding. The decision underscores the need for a nuanced approach in assessing damages for future economic loss, particularly when the claimant's career aspirations are impacted by their injuries.

Orders