Elbekkahi v QBE Insurance (Australia) Limited
[2023] NSWPIC 202
•2 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Elbekkahi v QBE Insurance (Australia) Limited [2023] NSWPIC 202 |
| Claimant: | Awatif Elbekkahi |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | David Ford |
| DATE OF DECISION: | 2 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36(3)-(4); motor vehicle being driven by the insured driver travelling in the opposite direction, lost control, veered onto the incorrect side of the roadway and collided head on with the claimant’s motor vehicle; insured admitted liability and no allegation of contributory negligence; claimant suffered fractured right arm, muscular ligamentous strain of lumbar and cervical spine; claimant was not employed at the time of the accident; had not engaged in any form of employment since 2009 when she became a full-time carer for her mother; claimant submitted that she intended to enrol in a university course to become a primary school teacher shortly prior to the accident but post-accident did not enrol in the university course nor seek full time or part-time employment but remained a full-time carer for her mother; claim for past and future economic loss plus superannuation; Held – claimant is not entitled to any damages for either past or future economic loss; damage is assessed at $NIL. |
| determinations made: | Certificate Issued under s 7.36(1) of the Motor Accident Injuries Act2017 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 Act2017 (the MAI Act), I specify the amount of damages for this claim as $nil. 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 $15,139.25 inclusive of GST. |
Reasons for Decision
Issued under s 7.36(1) of the Motor Accident Injuries Act2017
BACKGROUND
This determination relates to
An assessment of the claim where the insurer, having wholly accepted liability for the claim, and the amount of damages for that liability.
Background information to the claim
On 27 July 2018, at approximately 3.16pm, Awatif Elbekkahi (the claimant) was driving her motor vehicle along Campbell Hill Rd at Guildford, when the motor vehicle driven by the insured driver, travelling in the opposite direction, lost control and veered onto the incorrect side of the roadway.
It then transpired a head on collision occurred between both vehicles.
The Insured admitted liability by notice dated 18 November 2020 and there was no allegation of contributory negligence.
In the personal injury claim form lodged by the claimant, she outlined all the injuries received by her because of the accident.
(a) fractured right arm.
(b) pains in ribs/ chest on left side.
(c) pains in right arm.
(d) headaches
(e) dizziness.
(f) upper back pain.
(g) lower back pain.
(h) shoulder pains both sides, and
(i) hearing impairment.
Following the accident, she was taken by ambulance to Auburn hospital where she complained of rib, abdominal, knee, bilateral forearm, lower leg, bilateral elbow, and chest pain. The claimant sets out in detail in paragraph 36 of her statement dated 25 January 2023, particulars regarding her treating medical practitioners.
She has been assessed by the medical service in regard to both her physical and psychological injuries, and both assessments concluded her whole person impairment does not exceed the 10% threshold. It was conceded she had suffered a non minor injury
At the time of the accident, she was not working. She has been a carer for her mother since 2009 and in receipt of Centrelink carer payments. Her education and work history is set out in detail in the further submissions dated 22nd of April 2023. When she was employed, she worked in childcare services and as a teacher’s aide before she commenced to be a full-time carer for her mother. The claimant was born in 1979 and is now 44 years of age.
She married in 2008 and has not worked in either full time or part time employment since then. She was subsequently divorced in 2014, and there were no children from the marriage. She commenced to reside in her parents’ home on 17 November 2017. At the general assessment conference, she stated in March 2018, she made inquiries to study at university to become a primary school teacher. The course is undertaken with Charles Sturt University and is done online. The degree is a Bachelor of Teaching. There are 29 subjects, and the course takes two years.
She further stated, at the time of the motor vehicle accident, her mother independent. Prior to the accident she was happy, and everything was planned out. She intended to work part time whilst studying, and her intention was to initially work 15-20 hours per week part time, and she could continue to care for her mother.
It is submitted because of the accident; she is no longer able to undertake this study, nor can she work on a part time basis. She has several disabilities which prevent commencing university studies or engage in either full time or part time employment. These disabilities are as follows.
(a) lack of ability to concentrate for more than 30 minutes.
(b) difficulty in standing or sitting for prolonged periods.
(c) difficulty in driving for long periods.
(d) anxiety.
(e) difficulty in using her dominant right arm.
(f) shoulder/neck and back pain (into the left knee), and
(g) medication (Lyrica) which causes drowsiness.
In the further submissions counsel submits evidence of her unfitness for work in paragraphs 38-42 inclusive
in the initial schedule of damages lodged on behalf of the claimant dated 27 July 2021, there was no claim for either past economic loss or past loss of superannuation. A claim was made for future economic loss and loss of future superannuation in the sum of $500 net per week for the remainder of her working life.
In the updated schedule of damages dated 22nd of April 2023 the solicitor for the claimant seeks an amount of $46,467 for past economic loss and past superannuation. In respect of future economic loss, an initial sum of $477,938 and thereafter a calculation on the deferred tables amounting to a sum of $163,730. The total amount claimed for future economic loss is the sum of $545,417 plus a claim for future superannuation.
Outline issues in dispute
The following issues have arisen in the matter:
(a) past economic loss, and past superannuation, and
(b) future economic loss. And future superannuation.
The main issues requiring my determination are as follows:
(a) 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?
(b) what is the entitlement to damages which flow from the findings of 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.
Counsel for the claimant served comprehensive submissions dated 22 April 2023. At paragraphs 38-42, he submits evidence regarding her unfitness for work including various certificates of capacity. Her general practitioner initially certified her unfit for work for a period of six months and in December 2018, indicated it would be at least a further six months before she could return to work.
The solicitor for the claimant arranged for her to be seen on a medico legal basis by Dr Maniam and I refer to his report dated 9 February 2022. He has provided details of disabilities at the time of his examination On pages 5 and 6 of his report, he carried out a physical examination of her and also reviewed imaging reports. On page 11 of his report, he provides a diagnosis of her injuries as follows.
(a) Muscular ligamentous strain of the cervical spine with aggravation of underlying degenerative disease.
(b) Traumatic impingement of the right shoulder with subacromial subdeltoid Bursitis.
(c) Musculo ligamentous strain of the lumbar spine with aggravation of underlying degenerative change.
(d) Post right radial head fracture, with stiffness.
(e) Onset of Grade 1 chondromalacia Patella.
Under the heading” work fitness and employability” he states as follows
“She last worked in 2007 as a childcare /personnel teacher’s aide. The reason for her current ongoing employment does not appear clear, however I informed Mrs Elbekkahi that her physical injuries will not prevent her from undertaking a part time position. A fitness to return to selective duties would have occurred six months after the incident. Currently she will have to avoid the following if returning to work.
a. Heavy lifting
b. Repetitive movements
c. Pulling and pushing.”
Counsel for the claimant also relies upon a medicolegal legal report from Dr Abu Ali, psychologist, dated 30 October 2021. The report is summarised in these submissions. He was of the opinion she may not be able to work more than 20 hours per week and furthermore she was limited to concentration for no more than 30 minutes.
I refer to the Certificate and Reasons of Medical Assessor Home dated 8 October 2022. He certified the following injuries were caused by the subject accident and which gave rise to a permanent impairment of 5% The injuries are as follows.
(a) musculoligamentous strain of the lumbar spine.
(b) subacromial impingement to the right shoulder.
(c) intraarticular fracture of the head of the right radius (right elbow), and
(d) left knee contusion, resolved.
Medical Assessor Home carried out a physical examination the claimant and I note on page 6 of his reasons, he states she was consistent in her clinical presentation. He provides a detailed summary of the relevant documentation perused by him commencing on page 6 of her reasons.
She was also examined by Medical Assessor Shen in respect of her psychological injuries, and I refer to her certificates and reasons dated 18 October 2022. She assessed her as suffering from post-traumatic stress disorder and assessed the permanent impairment at 5%. On page 5 of her reasons, she states the following under the heading “current symptoms”.
“Her mood has been low, and she struggles to show a happy face, with intact reactivity. She also has anxiety and finds it hard to control her anxiety with effort. Her sleep has been disturbed as she tries to get five to six hours (premorbid 8 hours) with difficulties falling asleep and remaining asleep. She has been eating regularly but does not enjoy it as much, as they had to change to easy meals. She has poor ongoing concentration, with reading, but she said it was due to being always called upon by her parents to do something for them. She has been needing to push herself to groom herself and takes her longer now. She visits Rabia, and talks to her, which she can enjoy. She feels guilty about there needing to be someone home for her mother, and that she didn't listen to her mother. She denies any suicidal ideations.”
I note the following under the heading “comments of consistency on presentation” on page 6 of her reasons.
“She was generally consistent with her history and consistent with the medical records, though there is an element of misattribution of functional impairment from the psychiatric injury to the increased care needs of her mother”.
At the general assessment conference, she stated she was still receiving treatment from Dr Metry and she had seen him on at least 40 occasions, the last occasion being March 2023. Her current medication is Lyrica, Cymbalta, and Panadol osteo. She could not work as a teacher’s aide at the present time because it requires her to be sitting down and standing up for long periods of time. She is not able to undertake the university course of becoming a primary school teacher because it requires a lot of planning, and it is a course which is “full on.” Furthermore, the pain in her lower back, pain in the right arm and shoulder also prevent her from working as a teacher she also stated she has the difficulty of looking after her mother and this prevents her from being a teacher’s aide and she cannot work as a teacher’s aide for emotional reasons. She clarified this by saying she is anxious about her mother; she finds it hard to concentrate and read and when her mother calls her. Her response was “I give up”. I cannot do the university course in the time frame. She also stated she cannot travel from the home to engage in either employment or study as in her words she stated,” I cannot be a carer for my mother”. She then described in detail her various ongoing disabilities, which includes a lifting restriction of no more than 2kg. Furthermore, vacuuming causes pain and she cannot clean the house as she used to. She finds it difficult to drive a motor vehicle for more than 35 minutes because she suffers from back pain and shoulder pain. She still has nightmares about the accident.
Submissions made by the insurer.
The solicitor for the insurer arranged for the claimant to be examined by Dr Frank Machart, orthopaedic surgeon, and I refer to his report dated 4th of March 2021. He noted the claimant’s current symptoms on page 2 of his report and in addition, recorded that she found it difficult to lift anything heavy. She gets easily tired, and she cannot lift heavy shopping. She has assistance with shopping from her father and she cannot organise cooking large meals.
He carried out a physical examination of her and provided a diagnosis on pages 5 and 6 of his report. She recorded an extensive symptom pattern and disability which was difficult to equate to the pathology of injury determined objectively. He did not recommend any further medical treatment for her. He did not expect any long-term problems or disability.
She was also examined by Dr Graham George, consultant psychiatrist, at the request of the insurer and I refer to his report dated 11 January 2022. From a psychiatric viewpoint, he considered the claimant appears to have suffered chronic post-traumatic stress disorder. He believes she continues with ongoing symptoms, but they do not appear to have ameliorated. To a degree, she has had appropriate treatment with a psychiatrist and a psychologist. On page 9 of this report, he states the following.
“It does appear, that, perhaps in the first 40 weeks or so, her capacity to engage in certain activities was impacted due to physical injuries, but not necessarily, any psychiatric disorder”.
It is submitted there should be nil allowance football both past and future economic loss. I note the following submissions.
“The insurer submits that there is no evidence to verify that the claimant intended to start a Bachelor of Teaching to become teacher nor evidence of any attempts to enrol for the course, either before or after the subject accident.
Despite the medical evidence supporting that the claimant has capacity to work, and the fact that there is no evidence demonstrating that her ability to work will be affected in the short to medium term as result of any injury caused by the subject accident, it is clear the claimant has no basis for her claim that she intended to become a teacher and now cannot as a result of the subject accident
The insurer submits that in her statement, dated 21st of January 2023 the claimant herself confirms that she is not motivated to put any applications in to commence the course The Claimant therefore has no entitlement to future economic loss and the insurer makes no allowance for this head of damage.”
REASONS
Past loss of earnings
It is clear from the questioning of the claimant at the general assessment conference, she is committed to continue in her role as a carer for her mother. Since the accident, she has made no effort whatsoever to undertake either full time or part time employment. Whilst I accept she has suffered the injuries and ongoing disabilities as outlined in my Reasons, I do not accept such injuries and disabilities prevent from undertaking some form of remunerative employment, and in this regard, I prefer the opinion Dr Machart and I also prefer the opinion expressed by Dr Maniam regarding her capability to re-enter the workforce.
Furthermore, I do not accept she is not capable of commencing her intended university studies because of her injuries and disabilities, but rather she is prevented from doing so because of her role as a full-time carer for her mother. In this regard, I refer to paragraph 25 of my Reasons and the statements made by the claimant at the general assessment conference.
There was nothing to prevent her from obtaining some form of part time employment and she acknowledged that doing so would not affect her entitlement to a full carers pension. There has been a clear decision by the claimant not to study nor to seek some form of employment but rather she is content to continue as a full-time carer for her mother.
Therefore, I conclude the claimant is not entitled to any damages for past economic loss.
Future loss of earnings
Since I have determined the claimant is not entitled any damages for past economic loss because of her decision to remain, for the foreseeable future, as a full-time carer for her mother, I also conclude the she is not entitled to any damages for future economic loss.
ASSESSMENT OF DAMAGES SUMMARY
Under sub-s 7.36 (1) (b) of the 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 $ nil
§ Economic losses $nil
§ Past loss of earnings $nil
§ Future loss of earnings $nil
§ Interest $nil
§ Other $nil
Total of economic losses and non-economic loss $nil
Total Damages Assessed $nil.
Costs and disbursements
I assess the claimant’s legal costs and disbursements in accordance with part 8 of the MAI Act and the Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020 in accordance with the attached sheet and my reasons for any disputed claims are as follows:
(a) there are no disputes.
Conclusion
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.
Under sub-ss 7.36 (3) and 7.36 (4) of the MAI Act, I specify the amount of damages for this claim as $nil.
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 $15,139.25 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
·the MAI Act;
·Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, and
·Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
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