Fraser v Allianz Australia Insurance Limited
[2025] NSWPIC 105
•24 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Fraser v Allianz Australia Insurance Limited [2025] NSWPIC 105 |
| CLAIMANT: | Grace Nicole Fraser |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | David Ford |
| DATE OF DECISION: | 24 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under section 7.36(3) and 7.36(4); claimant's mother and sister injured in a motor vehicle accident; claimant not present at the time and did not witness the accident; claim for pure mental harm arising out of the accident; liability admitted; insurer conceded she had sustained a non-threshold injury; claimant was 13-years-old at the date of the accident; alleged disruption to her schooling and after leaving school disruption in her ability to work part time in child care; claim for past and future economic loss; Held – claimant is entitled to damages for 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 $25,000.2. 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
Grace Nicole Fraser (the claimant) was born in 2005. On 21 May 2018, her mother and sister were injured in a motor vehicle accident involving the insured bus outside the claimant’s school. She was not present at the time and did not witness the accident.
This is a claim for pure mental harm arising out of the accident and liability has been wholly admitted for claims made by the mother and sister of the claimant and there is no allegation of contributory negligence. It is conceded the claim falls within the class of persons who can make a claim for nervous shock pursuant to s 30 of the Civil Liability Act 2002. The insurer has conceded the claimant has sustained a non-threshold injury.
The claimant at the time of the accident, was attending the Heritage College at Kemps Creek Sydney. She left school in 2020. Her school reports were served by her solicitors, and, in summary, the reports note on many occasions, she was absent from school for lengthy periods. At the assessment conference, she stated after the accident she did not go to school for a few weeks. She was asked how she was coping in 2019, however, she replied she could not remember. She said she would pretend to be sick in order to miss school.
After leaving school in 2020, in 2021, she commenced employment as a childcare worker with Do Re Mi childcare centre located in Mount Vernon. Her hours were from 8.30am to 4.30pm, Monday to Friday. She was initially paid an hourly rate of $14.74. As part of her employment, she was in the process of obtaining her certificate III in childcare. After three months, she stated she was unable to cope with the scope of her employment due to her mental state and she required a number of days off work. She subsequently reduced her working hours 2-3 days per week, working Tuesday, Wednesday and Thursday for a total of 20 hours per week.
In the submissions made on her behalf dated 12 September 2024, it was submitted she does not have the capacity to work more than those hours per week and it was stated that whilst still employed, she continues to struggle and has days off sporadically.
The claimant then revealed at the assessment conference, that in her statement dated
14 September 2024, she made no mention of her resignation from her employer in February 2024. Nor did she mention her pregnancy. She gave birth in October 2024. She stated at present, she cannot undertake full time work.Her solicitors served updated submissions dated 10 March 2025, in which, after examining payslips produced by her former employer, a loss of income is claimed from 1 April 2021 to date and continuing, calculated at $27.09 per hour, by 20 hours per week, for a period of 257 weeks. This resulted in a calculation of $139,243 plus a claim for loss of superannuation. The claim for future economic loss is based upon the previous submissions, dated
12 September 2024, which is based upon a claim of $655,645. It is further submitted, her goal was to become a teacher/psychologist, and it is on this basis, it is alleged she has suffered a diminution in her future earning capacity, as her capacity to cope socially, mentally, as well as cognitively, has been seriously affected by her psychological injury.Since the insurer has wholly admitted liability, the claim comes before me solely to assess damages.
Outline issues in dispute
The following issues have arisen in this matter:
(a) past economic loss.
(b) future economic loss.
(c) past superannuation, and
(d) 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 her ability to earn an income from the date of the accident up until the present time and for the remainder of her working life, and
(b) 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 14 April 2024. I refer to the following paragraphs:
“20. I was not at the scene of the accident. I was, however, after being told of the accident completely traumatised. I know the bus in question, as it was a regular bus that does school pick up in the afternoon. Following the accident some of friends had taken picture of the bus showing the damage caused in the accident which traumatised me even more. I was also sent photographs of the car, which I understand was later declared as right off. That did not help me neither.
21. On the date of the accident, I was not at school. I was with my grandparents at home as I had gastric pain on that day. It was a normal weekday afternoon. I was waiting for my mom and sister to come back, so that we can have our family dinner together.
24. I recall I was sitting in the hospital for a few hours waiting for my mom and sister. No one told me what exactly happened to them. I was crying because I really feared that they were dead. I was horrified and felt really scared.
25. In or around late afternoon I saw my mother. I recall she was lying on a bed with nasogastric tube and oxygen nose prongs. I recall that scene as extremely traumatic as I thought she was going to die. I was informed my mum would undergo a surgery, but no one told me if she could survive.
26. I eventually returned home and stayed with my grandparents and younger sister, Amy. My father stayed in the hospital.
27. I was not able to sleep that night, I trembled with fear. I could not stop thinking what would happen to my mum and Emily.
28. I was not able to go to school. I was not able to do anything other than sit at home and crying. I stopped running, exercising, my Karate lessons. I was not able to do anything. It was very traumatising seeing my mother in hospital laying there with a tube connected to her body.
29. I found it extremely difficult to mentally cope seeing the injuries and disability sustained by my mother and older sister, in addition to the hole left in the bus as a result of the incident.
30. I suffered from intrusive memories, every scene that I witnessed after the accident, including the ambulance, the hospital, the bus kept replaying in my mind. I was not able to sleep. I felt completely overwhelmed I couldn't sit or study or exercise.
36. After the accident, I was struggling. I went to see Dr Hamad, a general practitioner at West Hoxton Medical Centre and was referred to a psychologist, Dr Jessica Fedell. I then see Dr Fedell approximately once every three weeks, attended upon my psychologist approximately once 3 weeks.
37. After the accident my school grades changed significantly. I was finding it really difficult to concentrate. I sought to have extended leave from school a few times. At that time, I just did not go to school, as I could not cope. There were days when I go to school, and they would send me back home sick. Other days I would just not go to school at all. This pattern of sporadic attendance continues throughout the rest of 2018 and 2019. As a result, I was not able to catch up with my schooling as a result I did not achieve anywhere near the level of achievement that I expected or indeed others expected on me.
41. According to my year 8 Advisor Report, I was absent from school for 43 days and I was partially absent for 8 days. That was in the 2018 year
42. That did not improve in the following year. In Year 9. I continue to suffer from nightmares and sadness as result of the accident. I continue have a loss of motivation to learn., I was not able to concentrate, my sleeping difficulties were continuing, my mood is down. I continue to feel depressed, and my psychologist told me I was suffering from PTSD symptoms, depressed mood and PTSD symptoms.
43. My symptoms did not improve in 2018 or 2019. In 2020 I was just not getting any better. There was no light at the end of the tunnel. I made the decision that I could not continue with my schooling on to year 12 as result of the accident and the way I was feeling. I was essentially forced to leave school in year10.
44. As a result of my grades going downhill, was not able to complete my schooling through to year 12.
45. As a result of leaving school in 10, I did a TAFE course instead. That was not my preferred option. I actually did the TAFE course online. It was far easier for me to do it online as I did not feel up to doing it in person.
53. After getting the job in November 2020 I was employed on a full-time basis, and I was meant to be working 38 hours per week.
56. After reducing my hours to around 24 hours per week, I was still having time off work sometimes. I was feeling much better than others other days. I was not able to cope and had the day off. There were some weeks that I only worked for 7 or 15 hours per week.
57. Sometimes in early 2023 ,I thought that I might be able to do some set days per week, being Tuesday, Wednesday, Thursday doing 8 hours per day .I thought I might be able to do that but as it panned out, I was still having days off work and I found even the three days per week schedule from Tuesday to Thursday it was still a struggle for me.
58. At the beginning of 2024, I no longer work Tuesday, Wednesday and Thursday. I now only doing very limited hours on a more sporadic basis.
60. I really do not know what else to do. I continue to suffer from PTSD symptoms that has a debilitating effect on my day-to-day activities and my work and impacts severely on my capacity to earn.
61. Even things like child songs relevant to school triggers my PTSD and my extreme fear have heighted every time I walk past school bus stop.”
I refer to the statement of the claimant's mother, Kay Fiona Fraser, dated 8 May 2024. I note the following paragraphs:
“6. It was a traumatic accident. My daughter Grace vividly saw the accident.
12. Red buses trigger Grace’s emotions, as she witnessed the bus that squashed no sister and me and heard me in distress telling the driver to stop pushing me”
29. As a result of Grace’s schooling not being where it should be, she left at the end of year 10. That was never her plan and certainly not what I expected of her.
30. In or around November 2020, Grace managed to get a job in childcare. She did that for a few months on a full-time basis, but I noticed that she was not coping. She would often come home and complain to me that she was not coping.
31. On some occasion, I would receive a phone call from Grace while she was at work. She was crying, as the childcare centre was playing a song that reminded her of the accident.
35. As a mother, I'm distressed to see my child this way I really fear for her future and apart from encouraging her, I really don't know what else I can do.”
The solicitor for the claimant arranged for her to be examined on a medico legal basis by
Dr Enrico Parmegiani, consultant forensic psychiatrist, and I refer to his to report dated
20 November 2023. I note the following on page 4 of the report under the heading “History of Symptoms and Treatment after the accident”,“Once her mother returned home from the hospital, she stated that all she wanted to do was to be by her side. After she returned to school, she isolated herself. She stayed mostly at home after school refusing to go out. She stated that she slept poorly, her sleep being disturbed by nightmares of seeing her mother in the hospital and seeing” red buses ". She stated that whenever she woke up from a nightmare, she would go to her mother's room to check on her welfare.
She recalled that at school she was distant and unable to focus. Her thoughts were persistently preoccupied with her mother and with her sister Emily. She usually stayed inside the school at the end of the day until the school buses left, or otherwise she made sure that she would leave before the buses arrived. She continued to experience intrusive memories and flashbacks of seeing her mother in the hospital. She also began to experience panic attacks, usually three times a week. She felt tense and on edge and her startle response remained elevated. She eventually saw a psychologist to whom she was referred by her general practitioner, after initially trying to deal with the matters on her own. She stated initially, she was reluctant to seek assistance, because she thought that they would laugh at her and tell her that she was silly because she had not been there physically.”
I note the following under the heading “Consistency of Presentation” on Page 6 of his report:
“Ms Fraser presented as a pleasant and polite historian who gave a good account of her subjective experience after her mother and older sister were involved in the subject motor vehicle accident, from a psychiatric perspective, she reported symptoms that were understandable within the context of her experience, and which did not appear to be exaggerated or embellished”
Also note the following on page 7 of his report:
“She reported subjective problems with her memory and concentration. She stated that sometimes she found it difficult to focus on movies she was often fidgety and restless and found it difficult to read. She continued to use social media. She was now working three days a week, from 9:00am to 5:00pm in a childcare centre. She enjoyed working with children, usually babies between the ages 0 and 2. She stated that she found it too stressful to deal with older children because most of their songs and activities referred to things such as buses which triggered symptoms of PTSD.”
Dr Parmegiani diagnosed the claimant is suffering from a chronic post-traumatic stress disorder and a panic disorder. I note the following under the heading “Prognosis” on page 11 of his report,
“With appropriate treatment, her chances of achieving further improvement over time are approximately even. The relevant literature on post-traumatic stress disorder suggests that symptoms that have been present for such an extensive period of time are likely to become entrenched and relatively treatment refractory. I would expect no significant changes to occur with the next 12 months from a clinical perspective, but she may improve gradually over the next 2-5 years.”
He assessed the claimant as having a 6% whole person impairment in respect of psychological injuries.
Submissions made by the insurer
The claimant confirmed at the assessment conference that she had not lodged taxation returns for the years 2021-2024 inclusive. A Notice for Production was served upon the claimant’s employer, and it was noted in the insurer’s updated submissions dated
14 March 2025, that medical certificates or other information had not been provided as to any periods of time the claimant did not work, which would set out the reasons for her absences. Both parties agreed there is a significant disparity between the claimant’s scheduled rostered hours and the hours actually worked. The insurer submits there is no evidence as to why there is this disparity, as it relates at all, to the motor vehicle accident. It is further noted the claimant could have obtained a statement from her employers to substantiate her assertions as to the necessity for her to work reduced hours.Furthermore, the insurer submits in their original submissions and submissions made at the general assessment, the claimant’s pre accident school records show poor attendance at school. It is submitted the poor attendance at work is merely a continuation of what the insurer refers to as the claimant’s work ethic. It is submitted there is no evidence before me to attribute this to the motor vehicle accident. It is submitted any loss of income should be at best between 1 April 2021 and January 2024, and having said that, it is submitted the claimant was struggling at work prior to that. So, it is submitted any reduced hours cannot be contributed to the accident.
The insurer also refers to the clinical records of the claimant’s general practitioner Dr Hamad, whom she consulted on 31 May 2018, in relation to a scaphoid fracture sustained earlier that month. The claimant also had some left knee pain. There is no reference to the accident involving the claimant’s mother and her sister, or any reference to an inability to sleep, or any psychological type symptoms.
The insurer also submits the following:
(a) Dr Hamad was consulted on a regular basis thereafter, often fortnightly for a range of problems including URTI, sprain of the right ankle, menstrual problems, rash, sore throat and headaches.
(b) there is no reference in the notes to any psychological symptoms until
5 November 2018 when she saw Dr Hamad describing a grief reaction as her grandmother had passed away and counselling was arranged. Nothing was said however about the motor vehicle accident.(c) on 28 November 2018, she attended with a sore right knee having fallen beside a pool. There was no reference to any psychological symptoms.
(d) the next consultation was on 23 January 2019, when she felt shortness of breath whilst playing soccer. On 31 January 2019, she had nausea. On 6 February 2019, she had a sore left shoulder. On 5 March 2019, she had a sore right ear. On 7 March 2019, she had dysuria.
(e) consultations continued again on a weekly basis, for a variety of issues, but again no reference to the motor vehicle accident or any psychological issues were made. There were a number of sprains and strains. On 4 February 2020, when she described poor sleep, early morning awakening and depressed mood and was again referred to counselling. Again, no reference to the motor vehicle accident.
(f) at subsequent consultations on 25 and 26 February, 9 March, 21, 22,
27 May 2020 there was no reference to ongoing psychological issues.(g) on 11 February 2021 it is recorded that she was working at a childcare centre. She had a fever, and
(h) there is no evidence that the claimant had time off school as a result of psychological issues. There is no reference to the motor vehicle accident.
The records of the psychologist, Jessica Fedell were also served by the solicitor for the claimant. I note many of the photocopied pages are partly illegible. The only notes which refer to the psychological issues related to the subject motor vehicle accident are as follows:
(a) entry on 8 May 2021 mentioned bus still “freak out”. Wheels of the bus song freak out and panic, and
(b) entry on 24 March 2022 wakes up and can't go back to sleep think of the accident and anger will kick in. Up drink lavender, music, start again “anger, so much anger from the bus accident, mentioned happened (illegible) Some nights worse”.
The solicitor for the insurer arranged for her to be examined on a medical legal basis by
Dr Graham George, psychiatrist and I refer to his report stated 11 July 2023, I note the following under the heading “Employment Data” on page 3 of his report,“Ms Fraser said that she worked at a childcare centre at Mount Vernon, and she has been working there since she left school. She works on a permanent part time basis around 24 hours per week up until a year ago. She was working on a full-time basis and had been doing so since 2020 onwards. She indicated that she had reduced her hours to permanent part time work because of the fact that she still had difficulty sleeping following her mother’s and sister’s pedestrian bus accident on 21 May 2018.
I also note the following on page 4 of his report
“Ms Fraser said that she was in a state of shock at the time of the accident. She said that when she arrived at the accident scene, she had fears that her mother and sister may have been much more seriously injured. She had fears of losing both her mother and sister initially.
She said that she was traumatised by seeing her mother at the hospital being stabilised by a number of doctors who were attending to her. From the time of the accident, she said that she had had quite marked sleep disturbance. Even now she might only get 4 hours of unbroken sleep at night. She wakes up several times during the night still.
She said there have been times when she feels quite fatigued and to some degree this was part of the reason why she decided to drop back to permanent part time work at this point in time whilst working at a childcare centre. She indicated that she was subject to nightmares of the accident around three times a week. She said that sometimes she wakes up and realises that she has been dreaming but cannot remember the nature of the dreams, although she is often quite agitated and anxious on waking.
She indicated that her mood has been more apprehensive from the time of the accident. She said that her anxiety has continued and there are times when there are triggers in her environment such as seeing a bus or being near it when she is driving, and this causes her anxiety as well. she can have flashbacks to the accident site and also to seeing her mother injured in hospital.”
Dr George diagnosed her as having a chronic post-traumatic stress disorder in relation to her mother’s and sister’s accident.
I also refer to the second report of Dr George dated 23 August 2023. On page 2 of his report he states the following,
“I would point out that, often teenagers are not able to completely understand the nature of grief and how it impacts on their lives emotionally and psychologically. Although undoubtedly, she would have been grieving after her grandmother's death, there are no further notes recorded by her GP with respect of this issue. The assumption is that her GP has not asked her about her ongoing grief reaction following the recording of it on 5November 2018. This is an example where often important psychological symptoms are not necessarily recorded or fully appreciated by attending practitioners.
On 4 February 2020 there is another note made by the GP stating ‘poor sleep, early morning awakening, depressed mood’ indicating a diagnosis of depression. There is no further notation from the GP about any follow up of this particular condition, even though it was recorded.
You have pointed out that in 2022 there is a notation that Ms Fraser suffered ‘poor sleep, early morning awakening, depressed mood, low self-esteem, panic attacks, irrational fear’. The GP noted that she would require psychological counselling and indicated that the presenting symptoms were those of anxiety and depression.
When I assessed her on 26 June 2023, I diagnosed her with chronic post-traumatic stress disorder in relation to her mother and sister’s motor vehicle accident. I stand by this diagnosis. I would point out that often the symptoms of PTSD are not understood as a particular psychiatric condition. Often the symptoms occur at various times and often they appear in isolation so are not fully appreciated by either parents or attending doctors. I believe this was the case related to Ms Fraser's claim.
I did not regard her as being disingenuous on the day of her assessment, therefore I have no reason to change my diagnosis or conclusions.”
REASONS
Past loss of earnings
I refer to the statement of the claimant’s mother, where she states in paragraphs 6 and 12 the claimant witnessed the accident. At the assessment conference, when questioned by counsel for the insurer, the claimant's mother acknowledged these statements were incorrect.
In the report of Dr Graham George dated 11 July 2023, he states on page 4 “She said states that when she arrived at the accident scene”. The claimant, in her statement, clearly states she was not at the scene of the accident. Since Dr George was under the impression the claimant attended the scene of the accident, in some respects, I find the opinions expressed by him in his reports somewhat flawed.
I find the claimant has sought to embellish her psychological injuries and disabilities and is prone to exaggeration.
Counsel for the insurer, at the assessment conference, submitted it is not possible to determine the proximate cause of her past economic loss, in view of a number of factors, including the fact, there is no evidence she had time off school as a result of psychological issues, and despite attending upon Dr Hamad on numerous occasions, there is no reference to the subject accident, nor any reference to ongoing psychological issues. The records of the psychologist, Jessica Fedell only contain the two entries referred to in paragraph 22 above.
I also find the claimant could have obtained a statement from her employer to substantiate her assertions as to the necessity for her to work reduced hours, and in this regard, I cannot comprehend why she did not raise with her employer the issue regarding “singing songs and activities referring to buses” which, the claimant maintains, triggered her symptoms of post-traumatic stress disorder.
I therefore determine there should be nil allowance for past loss of earnings.
I note the insurer has not made any statutory payments to the claimant in this matter.
Future loss of earnings
I find the claimant can return to either full time or part time employment in the near future, and I do not accept her psychological injuries will prevent her from doing so. In this regard, I note the opinion expressed by Dr Parmegiani on page 11 of his report referred to in paragraph 17 above.
I find the most likely future circumstances for the claimant, is she will suffer some diminution in her earning capacity, but not for a lengthy period. I accept the submission made by the insurer dated 28 May 2024, that I should consider a small cushion in regard to loss of future earnings I consider this to be appropriate in the circumstances, especially having regard to the opinion expressed by Dr George, referred to in paragraph 25 above.
I therefore consider it appropriate to allow an amount for a future loss of earnings, including an allowance for superannuation, by way of a buffer in the sum of $25,000.
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:
· past loss of earnings $nil
· future loss of earnings Inc. Superannuation $25,000
· total of economic losses and non-economic loss $25,000
· reduction for contributory negligence Nil
TOTAL DAMAGES ASSESSED $25,000
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 $25,000 which includes the statutory benefits paid by the insurer which total $nil.
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.
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