Cevik v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 201
•18 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Cevik v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 201 |
| Claimant: | Safiye Cevik |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Hugh Macken |
| DATE OF DECISION: | 18 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - MotorAccident Injuries Act 2017; claimant a 23-year-old woman; 17 years old at the time of the accident; passenger; stoic demeanour; claimant wanted to become a high school teacher; physical injuries and chronic post-traumatic stress disorder in combination with a persistent depressive disorder; insurer admitted breach of duty of care with no allegation of contributory negligence; non-economic loss; economic loss; loss of vocational opportunity; Held – the amount of damages for this claim is $606,600 which includes the statutory benefits paid by the insurer; award for costs. |
| determinations made: | CERTIFICATE OF DETERMINATION 1. I assess the Claimant’s legal costs and disbursements in accordance with the MotorAccident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet in the sum of $39,988.22. 2. On the issue of liability for the claim, 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. 3. I specify the amount of damages for this claim as $606,600 which includes the statutory benefits paid by the insurer. 4. 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 $39,988.22 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 23 year old woman who was injured in a motor vehicle accident which occurred on 6 February 2018. She was a passenger in a vehicle being driven by her mother when it was struck on the right hand side by the insured’s vehicle. The insurer has admitted breach of duty of care with no allegation of contributory negligence.
The parties have agreed that the claimant’s injuries exceed 10% whole person impairment threshold and accordingly she is entitled to non-economic loss. The parties have agreed on past economic loss in the sum of $6,600 which includes loss of superannuation benefits. The insurer has made payments of $6,019.98 in respect to payments for past loss of weekly earnings. No payments have been made to the Australian Taxation Office in respect to this and accordingly, the Fox v Wood is nil.
Noting this only 2 matters require assessment. They are non-economic loss and future economic loss. It is appropriate to make some observations in respect to the claimant generally, and the general tenor of the medical material prior to assessing the 2 remaining heads of damage.
The claimant
The claimant presented as a hard-working, stoic and somewhat troubled individual. She was 17 years old at the time of the accident and had just finished her schooling. She had enrolled in an Arts Degree at the University of Western Sydney and was to pursue studies to become a High School Teacher. She was an active young woman who was diligent, athletic and motivated to commence her university studies in a pre-Covid world.
Following the motor vehicle accident the claimant attempted to do her best to try to move through the sequelae of the accident. She continued her studies but with limited success passing only 2 subjects in her first semester. Thereafter her academic transcript shows that her results deteriorated as did her condition.
She states:
“It was my intention to become a high school teacher and I believe, if not for the accident, I would have gone on to complete a Master of Teaching with a view to teaching English in high school.”
I accept the claimant’s contention that, but for the sequelae of the accident, she would have pursued her studies, continued them and ultimately become a high school teacher as was her intention.
It ought to be said that the claimant has had a somewhat difficult upbringing. There were tensions in her family both in relation to her sister’s medical condition and her relationship with her mother both of which required the claimant to undergo counselling. The claimant was questioned extensively on this at the assessment conference and stated that the difficulties she suffered from were partly cultural, primarily related to family anxieties and, in part related to her cannabis use after her family became aware of this. She had previously seen a psychologist. That said, I accept the claimant’s evidence which is in tandem with the medical evidence, that she has suffered a significant psychological injury arising out of the accident. I accept her to be a truthful woman who did not overstate the effect of the accident on her. She suffered from physical injuries, which continue to trouble her today, in particular problems with her shoulder, neck, back, left elbow, left wrist and left knee.
I accept the claimant’s contention that her life has been derailed since the accident. She was enrolled at university but, after endeavouring to pursue academic studies for about 18 month was unable to continue. I accept when she states her life has snowballed out of control this is a reasonable consequence of the psychological effects of the accident. I accept her statement that she has poor concentration, poor focus and poor memory and, in my view, this was borne out by her responses to questions at the assessment conference.
Medical material
10. The claimant has had a significant amount of medical treatment in respect to what Dr G. George diagnoses as:
“chronic post-traumatic stress disorder in combination with a persistent depressive disorder.”
11. At the assessment conference the claimant was taken through her post accident treatment noting that there were basically no complaints of physical injuries but significant ongoing complaints of psychological injury. The claimant stated, and I accept, that this was because of the requirement for the insurer to have regular certificates of incapacity from her treating doctor. Other than a brief period she has not been on anti-depressants nor has she seen a psychiatrist. There were numerous reports and notes from Dr D. Thomas, Clinical Psychologist, noting her presenting state of depression and anxiety. This report, as do other medical reports, recommend the claimant undergo further treatment. The report of Dr Thomas dated 16 June 2021 states:
“I recommend that Safiye (the claimant) be provided with a new referral for a further 4 sessions of treatment at the present time.”
The notes confirm, on 19 May 2021, of a possible option of the prescription of an anti-depressant medication.
12. The report of Dr George dated 22 February 2022, while noting the prognosis remains guarded states:
“Until she comes under the overarching care of a psychiatrist and also, re-establishes contact with a treating psychologist, I do not believe that she will have any capacity for study in the future.”
13. The report of Dr R. Mitchell dated 28 December 2020 contents that the claimant suffered a minor injury with no need for any future treatment.
14. With respect to Dr Mitchell this is not borne out by her ongoing complaints of psychological injury. This is borne out in the report of Dr R. Tint Way dated 11 March 2022 who states:
“She will need to see her psychologist for regular psychological counselling and cognitive behaviour therapy.”
He goes on to identify a need to see a psychiatrist to monitor her mood, state and treatment with pharmacotherapy and her need to see her general practitioner regularly to monitor her physical disabilities and appropriate treatment for pain medication and physiotherapy.
15. In my view this is the heart of the claimant’s condition. There is no doubt that she suffers from the psychological effects of the accident which have greatly interfered in her capacity to undertake study and significantly reduced her work capacity and vocational options. What is somewhat uncertain is whether or not, with appropriate treatment, her condition will improve or noting that she is a young woman who may yet find significant improvement particularly if she can access the appropriate medical treatment and care.
Non-economic loss
16. The claimant is a young woman who continues to suffer a significant psychological disability consequent on the injury sustained in the motor vehicle accident. Whilst the physical injuries have, to a large extent resolved, the post traumatic stress disorder and persistent depressive disorder will continue to cause a significant reduction in her ability to pursue pre-accident social, sporting, domestic and recreational activities as well as adversely affecting the important relationships in her life.
17. In these circumstances and noting all the material I assess the claimant’s non-economic loss in the sum of $300,000.
Past economic loss
18. The claimant’s original submissions in respect to past economic loss submitted that an allowance ought to be made of about $250 per week during 2018 thereafter reducing to about $100 per week to the end of 2021 and then losses of $1000 a week net consequent on her inability to work as a teacher.
19. As the parties ultimately agreed at the assessment conference past economic loss can only be identified as the losses associated with the adverse effect on the claimant’s capacity to pursue the options which she was intent on pursuing prior to the accident. Noting that the claimant was intending to remain a full time student for 4 years following the accident the economic loss can only reasonably be identified as being the loss of earnings which she would have earned whilst undertaking full time studies. I accept the claimant’s contention that, but for the accident, she would have remained a full time student with a view to becoming a school teacher. During this period the opportunities for her to work would have been limited to essentially part time or holiday work. As was noted as the assessment conference the claimant has in fact worked in various occupations and for various hours which would clearly have exceeded that work which she would have been able to undertake had she been studying at university full time. Accordingly, I concur with the parties’ position that past economic loss is limited to $6,600 which includes insurer payments of $6,019.98.
Future economic loss
20. Following the completion of her higher school certificate the claimant enrolled in a Bachelor of Arts course at Western Sydney University and was intending to complete these studies and, as she states, it her intention to become a high school teacher. It is clear from her enrolment in this course that this was her intention. There is nothing in the material to suggest that, but for the accident, the claimant would not have been able to complete these studies and obtain employment as a teacher.
21. As she outlined she attempted to return to the studies but it was difficult to concentrate in lectures, problems using a laptop and, difficulties engaging with friends for assignments and ultimately led to her failing numerous subjects and withdrawing from the course.
22. I accept that, but for the accident, the claimant would have completed her university studies and obtained work as a high school teacher. Had she continued to work full time and undertaken the necessary practical teaching experience, she would, in 2023, have been available to work as high school teacher. The accident, and in particular the psychological disabilities which she has suffered from and continues to suffer from has prevented this.
23. She has shown a solid work ethic in the last 4 years in particular in retail. She is currently employed at Sydney Airport undertaking aviation screening, working a minimum of 30 hours a week with occasional overtime. I accept the claimant’s contention that her current earnings of about $900 per week are significantly less than the earnings of a teacher which I accept to be between about $1,200 to $1,500 net per week.
24. Whilst the opportunity to work as a teacher has basically been lost I accept the insurer’s submission made at the assessment conference that there are other types of more lucrative employment open to the claimant which she may be able to pursue.
25. As was put to her at the assessment conference if she had further treatment and things improved she would prefer to work full time. When it was put to her as to whether or she could undertake further studies she agreed that she would like to try.
26. In 2022 she notes that having been prescribed anti-depressants she stopped taking these because she was unhappy with the effects they had on her. It may be that with some further treatment she may improve further.
27. I accept the claimant has a significant loss of earning capacity consequent on the injury sustained in the motor vehicle accident. Whilst it is a somewhat inexact science I assess the claimant’s impairment to be on a loss of earnings in the order of 20% of that of a teacher. That is about half the difference between her current earnings and her most likely earnings had she been able to complete her studies. This is a figure in the order of $300 per week. Noting that she is a relatively young woman and noting the relevant multiplier this figure would give rise to an amount of about $280,000 to which an allowance of loss of superannuation benefits ought to also be made.
28. I consider it appropriate to reduce these figures slightly for what could loosely be determined as vicissitudes noting that there may be other factors, perhaps family commitments and the like, which may have had an impact on her working full time for next 44 years in any event.
29. In all the circumstances I assess the claimant’s future economic loss, by way of a buffer reflective of a loss of earning capacity, in the sum of $300,000 which includes any loss of employer superannuation contributions.
Assessment of Damages Summary
I assess the claim as follows on the findings set out above:
Non-economic loss $300,000
Economic losses
·Past loss of earnings (incl. superannuation and Fox v Wood) $6,600
·Future loss of earnings (incl. superannuation) $300,000
Total of economic losses and non-economic loss $606,600
Total Damages Assessed $606,600
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
Statutory benefits $6,019.98
Conclusion
Costs and Disbursements
I assess the Claimant’s legal costs and disbursements in accordance with the MotorAccident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet in the sum of $39,988.22.
On the issue of liability for the claim, 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.
I specify the amount of damages for this claim as $606,600 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 $39,988.22 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017
·Motor Accident Injuries Regulation 2017
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