Harrison v AAI Limited t/as GIO - [2023] NSWPIC 313

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Harrison v AAI Limited t/as GIO [2023] NSWPIC 313
Claimant:	Eva Harrison
insurer:	AAI Limited t/as GIO
Member:	Terrence Broomfield
DATE OF DECISION:	30 June 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages assessment pursuant to section 7.6; liability admitted; 18-year-old claimant pedestrian on a footpath when a car collided with her and others in the group inflicting fatal injuries upon claimants’ best friend; no significant dispute in relation to diagnosis of significant physical and psychological injuries suffered by the claimant; dispute relating to impact of injuries on earning capacity; dispute relating to recovery of future travel expenses pursuant to section 4.5(b) for future travel to treatment providers; Held - damages assessed of $400,000 for non-economic loss with total of $1,123,930 plus regulated costs with no award for future travel expenses.
determinations made:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017 (MAI Act), the Commission’s assessment is: 1. The amount of damages for the claim is $1,123,930. 2. The amount of the claimant’s costs in the matter is $69,451.77 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

Eva Harrison (the claimant) at about 10.30pm on 7 November 2020 was walking down a street in Wollongong with her best friend and their respective boyfriends when a motor vehicle left the roadway, drove on the footpath, and collided with the claimant and her friends with tragic consequences. The vehicle struck the claimant’s left side/buttock area forcing her some five metres along the footpath after the impact. The vehicle also inflicted significant injuries on the claimant’s boyfriend as well as forcefully thrusting her best friend into a brick wall inflicting what proved to be fatal injuries upon her best friend before the vehicle came to rest after colliding with a pole on the footpath.
The compulsory third-party insurer of the vehicle has admitted liability for the claimant’s injuries loss and damage however disputes the claimant’s quantification of those damages.
The claimant was 18 years of age at the time of the accident and witnessed at the scene of the accident the grossly disfiguring facial injuries suffered by her best friend and was present at the hospital soon after the accident when her best friend passed away as was the claimant’s mother. The claimant’s mother deposes in a statement dated 18 May 2023 as having seen her daughter’s best friend in the same hospital room on the evening of the accident. The claimant’s mother deposes that the claimant ‘’heard and saw all the traumatic events that occurred prior to... (her best friend) ... losing her life’’ and recalled her daughter’s best friend ‘’had no face, her jaw was ripped apart’’[1].
[1] Paragraphs 9 and 10 Statement of Jackie Deans page 9 [AD2}
Not surprisingly the claimant developed what was not disputed to be a significant post-traumatic stress disorder and has had extensive therapy with a psychologist with various consultations with a psychiatrist. Both parties had medico-legal assessments undertaken…

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: [2023] NSWPIC 313
Decision Date: 30 June 2023

CaseChat Overview and Summary

The plaintiff, Harrison, brought an action against AAI Limited t/as GIO concerning a motor accident in which she was a pedestrian on a footpath when a car collided with her and others in her group, resulting in fatal injuries to her best friend. The dispute was primarily about the assessment of damages under the Motor Accident Injuries Act 2017, with the defendant admitting liability. The main issues before the court involved the quantification of non-economic loss and economic loss, including future travel expenses for treatment, as well as the impact of the injuries on the claimant's earning capacity.

The court had to decide the appropriate amount of damages for non-economic loss and the impact of the injuries on the claimant's future earning capacity. Additionally, the court considered whether the claimant was entitled to recover future travel expenses for treatment under section 4.5(b) of the Act. The court noted that there was no significant dispute regarding the diagnosis of the claimant's significant physical and psychological injuries, but the extent of the impact on her capacity to earn and the necessity of future travel expenses were contested.

In assessing the non-economic loss, the court considered the severity of the injuries and their impact on the claimant's quality of life. The court determined that the appropriate amount of non-economic loss damages was $400,000. The court found that while the claimant had suffered significant injuries, the impact on her earning capacity was not as severe as claimed. Consequently, the total damages awarded, including economic loss and regulated costs, amounted to $1,123,930. The court declined to award future travel expenses, finding that the claimant could reasonably access treatment without incurring significant travel costs.

The final orders of the court included an award of $400,000 for non-economic loss, totalling $1,123,930 in damages plus regulated costs, with no award for future travel expenses. The court's decision was based on a detailed analysis of the evidence and the statutory provisions applicable to the assessment of damages in motor accident cases under the Motor Accident Injuries Act 2017.

Orders