Gray v QBE Insurance (Australia) Limited
[2022] NSWPIC 247
•26 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gray v QBE Insurance (Australia) Limited [2022] NSWPIC 247 |
| CLAIMANT: | Katy Anne Gray |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Terence Stern |
| DATE OF DECISION: | 26 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment; dispute about the amount of damages to be paid to the Claimant under section of the Motor Accident Injuries Act 2017; intersection accident; insured driver failed to give way and collided into the passenger side of Claimant’s vehicle; whiplash and bruising; injury to right wrist; transverse fracture through distal radial metaphysis; avulsion fracture of the ulnar styloid; right distal fracture with intraarticular extension; Claimant, a speech therapist; claim for past and future economic loss; Held- Claimant entitled to damages for past and future economic loss and past and future superannuation. |
| DETERMINATIONS MADE: | 1. On the issue of liability for the claim, the QBE’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-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the Act), I specify the amount of damages for this claim as $250,831.36. 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 Act is $ 29,969.50 of GST. |
Reasons for Decision
Issued under section 7.36(1) of the Motor Accident Injuries Act 2017
BACKGROUND
Katy Anne Gray (the Claimant) who was born in December 1980 sustained an injury on 28 October 2018. The accident occurred at the corner of Beaumont Street and Donald Street in Hamilton. The Claimant was proceeding through an intersection on a green traffic light when the driver of the insured vehicle, driving out of Donald Street at the intersection, failed to give way to the Claimant and collided with the passenger side of the Claimant’s vehicle. It was a significant accident and the Claimant’s vehicle was written off.
The Claimant suffered serious injury to her right wrist.
This is an assessment of damages pursuant to s 7.36 of the Motor Accident Injuries Act 2017 (the Act). The Insurer wholly admitted liability for the claim for damages.
INJURIES SUSTAINED AND MEDICAL TREATMENT RECEIVED
Nature of the Injuries
The Claimant was in excellent health prior to the accident and fully able to carry out her work as a speech therapist.
At the time of the accident, she was working part-time as a speech therapist at the Raymond Terrace Health Centre and also at the Raymond Terrace Public School.
The Claimant sustained the following injuries:
·whiplash and bruising;
·injury to right wrist;
·transverse fracture through distal radial metaphysis with bony impaction;
·avulsion fracture of the ulnar styloid;
·right distal fracture with intraarticular extension.
Medical Treatment
The Claimant was initially treated in the Emergency Department of John Hunter Hospital (JHH).
On 29 October 2018, the Claimant underwent surgery by way of internal fixation of her right distal radial fracture stabilised with a plate and screws.
On 29 January 2019, Dr Brett McClelland, orthopaedic surgeon, noted the increase in pain experienced by the Claimant and concluded that she needed a surgical revision confirmed by a CT scan.
On 30 January 2019, the Claimant had a right wrist arthroscopy and removal of the metalware.
The Claimant alleges that she is handicapped in her work as a speech pathologist because of her disability in her dominant right hand/wrist.
She alleges that as a speech pathologist she needs to have dexterity allowing her to play with children to obtain their confidence. She routinely has to play with their toys and join in their activities.
She claims that she is further handicapped for her work in that she needs to regularly use a keyboard and has difficulty with typing.
MEDICOLEGAL OPINION
Dr A.G. Hopcroft, general surgeon (orthopaedics), saw the Claimant on 12 March 2020. He diagnosed a complex comminuted fracture of the distal radius and ulnar. He accepted that she continued to suffer pain and restriction in movement of the wrist. He accepted what her treating surgeons had said that since the fracture involved the articular surface of the radius, she was likely to develop significant post-traumatic arthritis in her wrist in later life and may come to a wrist joint fusion.
The injury was caused by the accident, and she had been left with a significant residual disability with pain and restriction in movement of the wrist joint. She would need to take ongoing great care with her wrist joint and to avoid those activities which aggravated her pain. She was unfit for heavy manual work with the hand but was able to continue her work as a speech pathologist. She had been significantly compromised in her ability to work for at least 6 months following the accident.
Dr Daniel Posel, orthopaedic surgeon, reported on 3 November 2020. He took a history from the Claimant of loss of strength and dexterity in her right wrist and hand, a reduction in range of movement of her wrist, a subjective loss of 50%, both in extension and flexion. She reported that her writing legibility had reduced by 30% and that her right hand fatigues with writing and with fatigue legibility decreases.
Dr Posel considered it highly likely that the Claimant would need further surgery in the future, namely, a localised wrist fusion and almost certainly by the age of 60.
Dr Posel noted that the Claimant had returned to employment.
STATEMENT EVIDENCE
Claimant’s Statement
The Claimant provided a Statement of 27 October 2021 which I briefly summarise:-
3)The Claimant completed a degree in speech pathology at University of Newcastle in 2002.
4)In 2003, she obtained a position as a speech pathologist with NSW Health.
6)She relocated to Newcastle in 2017 and obtained employment with Hunter New England Heath as a speech pathologist.
9)Prior to the accident, her intention was to get her children settled in school in Newcastle and then increase her working hours as a speech pathologist to full-time “within the next year or so”.
10)Her youngest son had commenced school in 2018. She anticipated that in 2019 she would be able to increase her hours, so that by 2020 she would be able to return to work full-time.
11)Her mother was available to look after her children to allow the Claimant to return to work full-time.
17)She was taken to JHH after the accident.
18)She had surgery on 29 October 2018.
20)She tried to return to work on 22 January 2019 but found this “extraordinarily difficult”.
21)After working 2 days she had pain and was referred back to Dr McClelland for corrective surgery.
22)She had corrective surgery on 30 January 2019.
24)On 26 March 2019, she returned to work for 2 days a week, but found it very difficult. She worked for about 5 weeks. As she was unable to drive, the Insurer paid for taxis to drive her to and from work.
25)She increased her hours in September 2019 working 3 days a week.
27)In October 2020, perceived economic necessity caused her to increase her hours to 4 days a week. At the time of the statement, she had continued working 4 days a week.
28)Works on Tuesdays, Wednesdays, Thursdays, and Fridays 4 hours a day, but finds it extremely difficult.
29)After 4 days work, she is not fit to work anymore. On Saturdays, she rests and tries to recover.
30)Her work is in the area of paediatric speech pathology.
31)This work requires significant strength and dexterity in both hands, wrists, and arms.
33)She cannot do all the tasks required of a speech pathologist, cannot properly engage children and cannot properly assist them because she is unable to do all the functions required of a speech pathologist.
34)Many of the tasks required are extremely difficult and cause significant pain.
35)There is ample work available. If she was able, she could work 5 days a week very quickly.
36)She cannot use her wrist continuously for long periods.
37)She gets significant swelling and inflammation in her thumb, wrist and hand.
EVIDENCE AT THE ASSESSMENT CONFERENCE
On 21 March 2022, the Claimant gave evidence at the PIC hearing significant aspects. She was clear that if she had not had the accident, she would have been able to work 5 days a week and there are always hours available. She was one of the most experienced therapists working at HNE Health.
The Claimant described the current content of her work. She has 6 face-to-face appointments every day of 45 minutes to 1 hour plus time needed in planning and preparation of clinical notes.
The Claimant was asked questions about telehealth but considered that it was not effective with the paediatric cohort that she dealt with.
She agreed she could use her left hand and wrist in some of the activities.
Describing her workload, she explained that she had no administrative support.
The Claimant said she intended to return to work full time from June 2022.
ECONOMIC LOSS DAMAGES
26.Section 4.5(1) of the Actprovides:
“(1) The only damages that may be awarded for economic loss are (subject to this Division) -
(a) damages for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity, and
(b) damages for costs relating to accommodation or travel (not being the cost of treatment and care) of a kind prescribed by the regulations, and
(c) damages for the cost of the financial management of damages that are awarded, and
(d) damages by way of re-imbursement for income tax paid or payable on statutory benefits or workers compensation benefits arising from the injury that are required to be repaid on an award of damages to which this Part applies.”
27.Section 4.6 relevantly provides:
“(1) This section applies to an award of damages –
(a) for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or
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Claimant’s Primary Submissions on Economic Loss
Briefly summarised, the Claimant’s submission of 14 October 2021 is:
34.She has had to modify her work because of her disability in her dominant right hand / wrist.
35.She is required to participate in dexterous activities to obtain children’s confidence by paying with their toys and activities.
36.She regularly has to use a keyboard (eg. With clinical notes) and has difficulty with those functions.
37.(a) can only work 4 days a week rather than 5;
(b)losing about $300.00 net per day;
(c)has only worked 4 days a week since September 2020.
(e)claims loss incurred between the accident and September 2020.
(f)after September 2020, her economic loss reduces to 1 day per week.
(g)lost income when she had the effusion procedure;
(h)also has lost income when she had had acute pain.
Initially, the Claimant’s submission put her past loss at $92,171.00 plus loss of superannuation. This was refined in a submission of 25 March 2022 in reply to the Insurer's submissions of 23 March 2022.
The past loss is now calculated at $53,026.50 plus superannuation.
The detailed figures are set out in the submission, and I reproduce them:
Period
Date
Weeks
Days Working
Days Lost
Nett per day insurer
Nett per day claimant
Insurer
Claimant
1.
29 October 2018 to 17 January 2019
10.5
Nil
2
$375
$375
$7,875
$7,875
2.
18 January 2019 to 25 January 2019
9.5
Nil
2
$375
$375
$7,125
$7,125
3.
26 March 2019 to 1 September 2019
22.5
2
1
$255
$375
$Nil (otherwise $5,737.5)
$8,437.5 (otherwise $5,737.5)
4.
2 September 2019 to 1 June 2020
39
3
1
$255
$375
Nil (otherwise $9,945)
$14,625 (otherwise $9,945)
5.
2 June 2020 to 21 March 2022
76
4
1
$255
$375
Nil (otherwise $19,380)
$28,500 (otherwise $22,344 based on $294 nett per day loss)
TOTAL
$15,000 (otherwise $50,062.5)
$66,562 (otherwise $53,026.5)
Insurer’s Initial Submissions
The initial submission of 22 November 2021 puts past economic loss at $15,375.00 covering the periods the Claimant was certified to be unfit for work and based on a net weekly earnings figure of $750.00 net per week.
The Insurer also notes the payment of PAYG instalments of $1,866.00.
The Insurer relies on the conclusions of Dr Hopcroft [able to continue work as a speech pathologist] and Dr Posel [has resumed all the pre-injury duties].
The Insurer also refers to the certificate of Dr Hall that the Claimant was fit for work full-time in June 2020.
With respect to future economic loss, the Insurer submits that there should be a small buffer of $10,000.00 inclusive of superannuation.
In the Insurer’s supplementary submission of 23 March 2022 refers to net earnings per day of about $255.00 or $256.00.
Further, at the Assessment Conference, the Claimant said she was currently earning $2,359.94 net per fortnight for 4 days a week, equating to $294.99 per day.
The submission provided an analysis arguing that in the period from 1 January 2020 to 21 March 2022 there was no loss but if there was a loss of 1 day a week, that is if the Claimant was accepted on that, the loss would be about $255.00 to $256.00 net per week.
The Insurer agreed that an award for future economic loss should be made on a buffer basis.
Consideration of Past Economic Loss
The relevant legal principles require that the Claimant be able to establish that the accident caused a diminution in her income earning capacity and that this diminution was productive of economic loss [Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; see also Graham v Baker [1961] HCA 48].
The Claimant has alleged that as a result of her injuries, she is unable to work more than 4 days a week and she has explained that this relates to the nature of pediatric speech pathology and that it is, in fact, a hands-on type of function and requires a lot of hands-on interaction with children in order to gain their confidence by playing games with them during the course of the assessment. It also involves a lot of keyboard activity for the taking of clinical notes. The Claimant has given a history of how this impacts on her.
The Insurer does not accept that the Claimant is only able to work 4 days a week and I refer to the history of the symptoms that the Claimant has given to her medical examiners.
The question arises – has the Claimant been honest in her account of her symptoms which, of course, are subjective or has she exaggerated? It is not only the objective pathology, which is relevant, but it is also relevant to ask a question – what impact have the injuries sustained by the Claimant had subjectively and are those symptoms real or exaggerated?
The question becomes, on the balance of probabilities – was (and is) the Claimant impaired from employment as a speech pathologist in excess of 4 days a week by reason of the impact of her objective continuing pathology and her subjective reaction to it?
My determination depends in part on the objective medical evidence and pathology and in part on whether the Claimant, on the balance of probabilities, is creditworthy and was telling the truth when she recounted her symptoms.
The question is therefore whether the Claimant has a relevant impairment on the balance of probabilities which has in the past been and is likely in the future productive of economic loss.
In a decision of Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20, the Court of Appeal has given some guidance on how a court determines issues involving the balance of probabilities.
In Sdrolias, McCallum JA [16] referred to what McDougall J (with whom McColl and Bell JJA agreed) said as to findings on the balance of probabilities:
“… for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact …
… two schools of thought had been propounded as to the proof of facts, referred to as “the objective probability school” and the “belief school”:
“The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such-and-such has taken place or will do so’ …”
McCallum J continued [17]:
“McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches …”
Her Honour referred at [17] to what Hodgson J wrote extra-curially:
“… the two approaches could be combined … ‘if … the tribunal … believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.”
I find that the Claimant is a credible witness. There are objective grounds for coming to that view.
I accept, on the balance of probabilities, at 28) that the Claimant finds her work for 8 hours a day 4 days per week “extremely difficult” and note that she believes that she cannot handle any more days per week than that.
I note further and accept what the Claimant said at 31) that pediatric speech pathology is not a light job but requires significant strength and dexterity in the hands and arms.
I note further and accept what the Claimant says at 34) that numerous of the tasks she lists in the document she prepared [referred to in 32)] are extremely difficult and cause significant increase in pain and that after she has put up with it for 4 days, she cannot do it for any longer.
Dr Hopcroft did conclude that the Claimant had been left with significant residual disability, with pain and restriction in the movement of her wrist joint and she would need to take ongoing great care with her wrist joint in avoiding activities which aggravate her pain. Dr Hopcroft thought that the Claimant was fit for the work of a speech pathologist but was unfit for heavy manual work with that hand.
Dr Hopcroft did not include in his history any reference to the difficulties which the Claimant says (and I accept) she has with the activities associated with her work and while one would not ordinarily classify the work of a pediatric speech pathologist as “heavy manual work”, I accept that there were aspects of the work which did produce pain and did impact on the Claimant’s capacity to work more than 4 days a week. Dr Hopcroft probably was not aware of this aspect of her work and had not considered the particular issue.
Dr Posel took a more detailed history and although he did not specifically address functions involved in pediatric speech pathology, he noted that the Claimant reported right hand fatigue and impact on legibility associated with writing.
I conclude that, on the balance of probabilities, accepting the Claimant as a credible person, noting the opinions on the objective pathology and the Claimant’s evidence on her subjective symptoms, the Claimant is only able to work 4 days a week.
I have accepted the evidence of the Claimant at the Assessment Conference that she intended to return to work full-time from June 2022.
Based on the evidence, I calculate past economic loss as follows:
Period
Date
Weeks
Days Working
Days Lost
Net per day
Amount Lost
1.
29 October 2018 to 17 January 2019
10.5
Nil
2
$375
$7,875
2.
18 January 2019 to 25 January 2019
9.5
Nil
2
$375
$7,125
3.
26 March 2019 to 1 September 2019
22.5
2
1
$255
$5,737.5
4.
2 September 2019 to 1 June 2020
39
3
1
$255
$9,945
5.
2 June 2020 to 26 May 2022
103.3
4
1
$255
$26,341.5
TOTAL
$57,024.00
Past loss of superannuation at 11% of the net gives $6,272.64.
FUTURE ECONMIC LOSS
The Claimant seeks damages for the future until age 67 less 15% for vicissitudes at $294.00 net loss per week, to which, it is submitted, there should be added a contingency sum on the basis that the Claimant will probably have total incapacity with future surgery and acute periods as her arthritic condition progresses.
It is submitted that I should allow $192,098.00 for her 26 years until age 67 and a further $40,000.00 as buffer reflecting the likelihood of total incapacity.
The Claimant submits that I should therefore assess damages for the future at $232,098.00.
The Insurer in its submission of 23 March 2022 agrees that an award for future economic loss should be made on a buffer basis but does not suggest a figure.
In its initial submission of 22 November 2021, the Insurer submitted that it would be appropriate to allow for future economic loss, including loss of superannuation, on a buffer basis at $10,000.00.
With respect to the prospect of future surgery, Dr Hopcroft said [page 5]:
“Since the fracture involved the articular surface of the radius she is likely to develop significant post-traumatic arthritis in her wrist in her later life, and may even come to wrist joint fusion in her later life.”
Dr Posel says [page 8]:
“No further surgery or treatment is required … at present nor in the immediate term. She may require surgery, in the long term, possibly, with a localised wrist fusion … or less likely a wrist replacement.”
The buffer of $40,000.00 proposed by the Claimant’s counsel is a possibility which according to Dr Hopcroft may be required “later in her life” which I do not take to mean more than a possibility that it may happen during her working life. Dr Posel talks about the long term as against at present or immediate term. He talks about the post-traumatic arthritis of the radio carpal joint being in the future (at an indeterminate time).
I am not of the view that the Claimant established, on the balance of probabilities, the basis for a secondary buffer of $40,000.00 on the basis of an incapacity to work by reason of the need at some indeterminate time and, if applicable, later in her life or in the long term, for further surgery.
Claimant’s most likely future circumstances but for accident
In accordance with s 4.7 of the Act, the most likely future circumstances but for the injury is that the Claimant would have worked as a paediatric speech therapist until her retirement probably in her late 60s.
The Claimant was in good health prior to the accident, very experienced, with full-time work readily available and she was capable of carrying out that work without any particular difficulty.
There was no health or other reason why she would not have continued to work.
I have accepted that the Claimant is only able to work 4 days a week and has therefore lost the income which she otherwise would have derived from working 1 day a week until retirement.
The Claimant’s children were all reaching or at an age where they did not need the level of care which would have required the Claimant to have worked part-time to devote more time to her children and her husband.
Determination on Economic Loss
The Claimant, in any event, has said in evidence that she wanted to work 5 days a week and I have accepted on the balance of probabilities that that is what she would have done.
The Claimant has established that as a result of the accident she has sustained a net loss of earnings probably in the order of $256.00 net per day (such daily rate being the rate as submitted by the Insurer to be the correct rate on the evidence if I were minded to find that there was future economic loss).
I calculate future economic loss for 26 years to age 67 (768.7) at $256.00 net per week, giving $196,787.20 less 15% for vicissitudes, leaving $167,269.12.
I allow for loss of future superannuation at 11% in the amount of $18,399.60.
Fox v Wood
The Insurer has submitted that the appropriate amount for Fox v Wood damages is $1,866.00 which the Insurer has paid in PAYG instalments. There has been no submission by the Claimant in opposition to this amount.
The Insurer seeks and is entitled to credits for weekly payments made pursuant to Division 3.3 of the Act in the amount of $15,065.77.
The Insurer is entitled to deduct by way of credit the amount of $15,065.77 referred to above.
ASSESSMENT OF DAMAGES SUMMARY
Under s 94(1)(b) of the 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:
Economic losses
·Past loss of earnings $ 57,024.00
·Past loss of superannuation $ 6,272.64
·Future loss of earnings $ 167,269.12
·Future loss of Superannuation $ 18,399.60
·Fox v Wood $ 1,866.00
Total of economic losses and non-economic loss $250,831.36
Total Damages Assessed $250,831.36
The Claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
·Division 3.3 Payments $15,065.77
LEGAL COSTS
I assess the Claimant’s legal costs and disbursements in accordance with the provisions of the Act and the Regulations as follows:
(a) The Claimant is entitled to professional costs for Stages 1, 2, 3 and 4.
(b) There was no medical assessment required.
(c) The fee for the Assessment Conference allowed is $3,207.00.
(d) The claim is made for 4 conferences directly related to the assessment of the clam. Given the nature of the case, 4 hours of conference time is reasonable.
(e) Dr Hopcroft’s fee is allowed in the maximum regulated amount of $1,710.00 plus GST.
Terence Stern
Member (Motor Accidents Division)
Personal Injury Commission
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