Higgins v IAG Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Higgins v IAG Limited t/as NRMA Insurance [2022] NSWPIC 344
CLAIMANT:	Sarah Higgins
INSURER:	IAG Limited t/as NRMA Insurance
MEMBER:	Elyse White
DATE OF DECISION:	7 June 2022
CATCHWORDS:	MOTOR ACCIDENTS - 18 year old, front seat passenger in a vehicle, travelling along a country road, where the vehicle left the roadway and rolled landing on the roof; Claimant sustained a left shoulder injury; at the time of the accident the Claimant was studying vet nursing and intended to further her studies to support a career in artificial insemination; completed nursing course;  alleges she has been unfit to work since June 2019; gave evidence once the case is over she would apply for suitable employment;  Held – assessed damages capped past economic loss to the amount of statutory benefits paid and assessed a buffer for future loss of earnings.
DETERMINATIONS MADE:	*Certificate Issued under section 7.36(1) of the Motor Accident Injuries Act 2017* Assessment of Claim for Damages made in accordance with section 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-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the MAI Act), I specify the amount of damages for this claim as $299,483.56. 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 $34,005 inclusive of GST.

Reasons for Decision

Issued under section 7.36(1) of the Motor Accident Injuries Act 2017

Background

Ms Sarah Jane Higgins, the claimant, was a passenger in a vehicle driven by the insured on 21 March 2019 (the accident). The insured lost control of the vehicle when the road surface changed from tar to gravel. The vehicle left the roadway and rolled down an embankment, a number of times, before landing on its roof.
The insurer, IAG Limited t/as NRMA Insurance wholly admitted liability and has paid statutory benefits to the claimant.
A claim for Common Law damages was filed by Ms Higgins which has been referred to me for assessment of past and future economic loss, past and future superannuation and Fox v Wood.
Although there is no direct attack on the claimant’s credit, it was put to her she was exaggerating the extent of her accident related injury.

Legislation

In making my decision I have considered the following legislation and guidelines:
(a) Motor Accident Injuries Act 2017 (the MAI Act);
(b) Personal Injury Commission Act 2020 (the PIC Act), and
(c) Personal Injury Commission Rules 2021 (the Rules).

Issues in Dispute

The following issues arose:
(a) what is the extent of the claimant’s accident related injury?
(b) what is the amount of the claimant’s past economic loss and superannuation and has she established an ongoing impairment to her work capacity which is productive of future economic loss and superannuation loss?

What is the extent of the claimant’s accident related injury?

Ms Higgins is currently 21 years old. At the date of the accident, she was 18 years old. She lives on a 5000 acre cattle property with her parents at Nowendoc approximately 1.5 hour drive from Tamworth.
On the date of the accident, she was travelling in the front passenger’s seat and was wearing a seat belt. After the vehicle in which she was travelling came to a stand still on its roof, Ms Higgins released her seat belt and self extricated through the back window. She was taken to Merriwa Hospital before being transferred to John Hunter Hospital in Newcastle. She reported left shoulder pain. She was discharged the following day with a recommendation to follow up with her general practitioner,
Dr Matthew Chan to seek medical advice.
Dr Chan reported Ms Higgins developed subacromial bursitis. He referred her to general orthopaedic surgeon, Dr Simon Hutabarat for assessment and management on 2 September 2019 after Ms Higgins reported an aggravation after reaching out for a container on the top shelf in June 2019. She is left hand dominant.
Ms Higgins consulted with Dr Hutabarat in his Tamworth rooms in mid September 2019. She presented with left shoulder pain. The doctor reported worse abduction and forward flexion of her shoulder. After examining the range of motion of the left and right shoulders and reviewing the MRI scan that demonstrated some fluid in the anterior capsule and extension into what looked like a small subdural lesion arterially, Dr Hutabarat diagnosed some element of capsulitis with, in particular, some disruption of the anterior capsule and a small tear into the anterior labrum. The doctor recommended left shoulder manipulation under anaesthesia followed by an orthoscopic and possible repair. On 4 November 2019 Dr Hutabarat performed a subacromial decompression and labrum repair. His operation report noted significant bursitis.
Ms Higgins reported, after physiotherapy, actually got relatively good strength and stability in her left shoulder. Nevertheless, she reported direct pain in the front shoulder joint with a collapsing sensation when trying to lift away from her body.
Dr Chan referred Ms Higgins to shoulder and elbow specialist, orthopaedic surgeon
Dr Benjamin East in November 2020. After examination, Dr East reported a loss of external rotation and internal rotation slightly limited by pain and forward elevation revealed discomfort. Dr East was not convinced there was a good mechanical cause for pain in her shoulder. He suspected it was more likely that a lot of the pain in the glenohumeral joint is postural and is related to the position of the scapula. He recommended a scapula based strengthening and rehabilitation program. He suspected the cause of the pain was a whiplash injury.
Ms Higgins consulted Dr East in February 2021 after undergoing an MRI scan. He reported she has a small SLAP tear but otherwise a normal MRI. He suggested further physiotherapy but suggested if she failed to make marked improvement, an investigation orthoscopy may be warranted.
A further consultation was arranged with Dr East on 26 April 2021. Ms Higgins reported ongoing clicking and catching in the shoulder joint. As physiotherapy had not provided relief from shoulder pain, Dr East recommended a further surgical intervention which was performed on 25 May 2021. On 21 July 2021 Dr East reported it had been eight weeks since her last procedure and Ms Higgins was progressing quite well. Her pain level had decreased and her shoulder articulation and coordination had improved markedly.
On 9 November 2021 Dr East was pleased with Ms Higgins progress and recommended ongoing exercises. Her last consultation with Dr East was on 6 December 2021. Dr East noted “….mild clicking in the shoulder which is intermittent and unreproducible clinically”. She told him about this case and her experience with a number of medico legal doctors which was unhelpful to her recovery. Dr East told
Ms Higgins she needs to focus on the end point, and continue with her ongoing strengthening exercises and that he and the physiotherapist will support her to make a solid recovery.
Around the same time Ms Higgins’ physiotherapist, Mr Steven Odgers reported
Ms Higgins was showing slow but steady progress. She had also told Mr Odgers about the orthopaedic medico legal opinion she would not be able to work in the field of her chosen career. Throughout 2019 and 2020, Ms Higgins also underwent a number of cortisone injections.
The claimant’s solicitor arranged for her to be interviewed by Dr Alan Hopcroft, orthopaedic general surgeon on 17 November 2021. Dr Hopcroft diagnosed a wrenching injury of her left shoulder. He opined that she had damaged one of the cervical facet joints in her neck and recommended an MRI scan. This opinion is at odds with the claimant’s treating doctors and specialists. The doctor pointed out to
Ms Higgins “…she has got a good result from her shoulder surgical interventions on two separate occasions by two separate specialists and that she is unlikely to obtain a totally pain free shoulder joint into the future”. In January this year, Dr Hopcroft was asked to comment on an MRI of Ms Higgins’ cervical spine which essentially was normal. He assessed a 1% whole person impairment of her left shoulder.
The insurer organised for Ms Higgins to see orthopaedic surgeon, Dr John Bentivoglio on 28 January 2022. He prepared a medico legal report dated 1 February 2022 and reviewed 27 documents including a number of certificates of capacity and fitness and clinical notes. The doctor was “…somewhat unsure of Ms Higgins’ diagnosis”. He assumed she did have some degree of subacromial bursitis together with a minor labral tear. He assessed whole person impairment percentage at 6%.
Ms Higgins was involved in a traumatic motor vehicle accident. She is fortunate she did not suffer very serious injury. Immediately after the accident she complained of left shoulder pain. Although she has consulted a number of experienced shoulder specialists and undergone two surgical procedures and injections, left shoulder pain continues.
However, her treating specialists are all optimistic she will continue to improve.
Dr Bentivoglio is hopeful with the passage of time Ms Higgins shoulder symptoms will eventually settle. Having assessed 6% whole person impairment confirms
Dr Bentivoglio accepted Ms Higgins has ongoing symptoms as at February 2022.
Dr Hopcroft accepted Ms Higgins is unlikely to obtain a totally pain free shoulder.
I accept Mr Wilson’s submission in that he conceded Ms Higgins suffered an injury to her left shoulder in that accident, however he highlighted that recent radiological investigations of her left shoulder do not indicate any significant abnormalities. However, at the present time I am persuaded Ms Higgins has ongoing pain in her left shoulder. She did demonstrate to me an ability to lift her left arm above her head, however had some level of restriction behind her back. She told me she cannot do up her bra behind her back.
I accept the extent of Ms Higgins injuries manifest as pain and some level of restrictions. With the passage of time, she should be encouraged by the opinions of her treating specialists in that she should continue to make a good recovery.

What is the amount of the claimant’s past economic loss and superannuation and has she established an ongoing impairment to her work capacity which is productive of future economic loss and superannuation loss?

Ms Higgins attended Nowendoc Public School, St Patricks and Walcha General from kindergarten to Year 9 before boarding at New England Girls School in Armidale. She completed her HSC in December 2018. She said before the accident she desired to be an artificial insemination technician (AI Technician) which involved studies in vet nursing plus additional studies. She said she wanted to be a pen rider in a feed lot which involves daily horse riding, processing cattle and treating cattle.
In 2019, Ms Higgins enrolled in Certificate IV Vet Nursing which involved driving to Scone TAFE once a week and practical placement one day a week.
Before the accident, Ms Higgins had undergone work experience in a veterinary clinic and veterinary hospital. She also did her mandatory practical placements as part of her course with Dr Ed’s Equine Veterinary Services up to October 2019. She says after the accident her restrictions limited her involvement as she was unable to perform the normal duties which involved catching, leading, holding horses, putting on halters, setting up a truck for dental procedures, climbing in and out of trucks as well as other duties. She completed the veterinary nursing course in November 2020.
Prior to this accident, Ms Higgins had two café jobs with Jamaica Blue and CH on Peel. This involved waitressing. After the accident she continued to work for these cafes until she aggravated her left shoulder on 24 June 2019. Since then, she has been certified unfit for any work until 4 February 2022. Since 4 February 2022 she is restricted with no repetitive left side movement, no pushing and pulling and no driving but is fit to work three hours per day for two days per week. However, Ms Higgins told me she has made no attempts to find any work other than continuing with a hobby/small business making and selling jewellery online. However, she has undertaken a number of studies to improve her chances and opportunities to secure employment in the future.
Ms Higgins says before the accident she would have worked as a veterinary nurse earning $59,000 gross per year. There is no supporting evidence she would have secured a position as a vet nurse. She says now she would like to work for an AI Technician in administration. This would mean leaving home and relocating to Holbrook near the New South Wales/Victorian boarder. She also hopes to increase her online jewellery hobby/small business enterprise. She says this work does not aggravate or make worse her shoulder pain (paragraph 15 of her statement). This evidence is inconsistent with the evidence she gave me at the Assessment Conference. She told me she relies on her mother to drive her to set up markets and to help stamp out items from cow hides.
Initially, Ms Higgins submitted her past economic loss amounted to $118,741 plus $13,061 superannuation. Ms Wall amended her claim to the amount paid by the insurer which is conceded in the amount of $90,000 in written submissions plus Fox v Wood which was agreed in the sum of $3,676. However, the insurer has now provided an update to the amounts paid as at 3 June 2022 which is $90,817.56. I assess past loss of earnings to be $90,817.56.
I note the claimant’s solicitor has responded to the insurer’s final submissions on past economic loss which is limited to the statutory benefits. The claimant is seeking additional loss of earnings based on the income of a veterinary nurse. However, this claim makes no acknowledgement Ms Higgins has residual earning capacity. I reject this submission as Ms Higgins has made no attempt to find any work since June 2019. As such, past economic loss is capped at $90,817.56.
The insurer concedes Ms Higgins is entitled to past loss of superannuation at 11% of net. I assess past loss of superannuation in the sum of $9,990.
For the future the insurer concedes Ms Higgins is entitled to a modest buffer of $50,000. They say she has failed to give consideration to alternate employment opportunities other than her fitness to work as a veterinary nurse. Further, they suggest with her completion of various courses post accident, has opened up alternate opportunities for her.
With the opinions of their medical specialists and treating medical professionals, the insurer submits her condition will improve to the extent she will be able to resume some form of full time employment.
In cases such as Medlin v State Government Insurance Commission [1995] 182CLR 1 and Husher v Husher [1999] 197 CLR 138, the High Court has confirmed that the fundamental questions to be determined where a claim is made for past and/or future loss of earnings are:
(a) whether the claimant has suffered a loss of diminution of his/her earning capacity; and
(b) whether that loss or diminution will result in economic loss.
In calculating any such loss, I should have regard to the provisions of s 4.7 of the MAI Act.
Ms Higgins proposed in her first written submissions she planned to work to age 70 years. I have no evidence in the field of veterinary nursing or AI Technicians that a person has the opportunity to work until the age 70. She pitched her claim as $1,134 gross per week or $945 net amounting to $780,357. This submission must fail as no consideration has been given for any residual earning capacity.
Ms Wall suggested a more sensible approach is to compensate the claimant by a generous buffer to accommodate her young age and two major surgeries without significant improvement. Ms Wall suggests the insurer’s concession for a buffer of $50,000 is woefully inadequate.
Neither party has applied the statutory test in section 4.7 of the Act relevantly:
“4.7 Future economic loss – Claimant’s prospects and adjustments
(1) damages may not be awarded for future economic loss unless the Claimant first satisfies the Court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the Claimant’s most likely future circumstances but for the injury.”
But for the accident what is the claimant’s most likely future circumstances? She told me she wanted to become an AI Technician. This required a certificate in vet nursing and perhaps further studies.
Before the accident she enrolled in this course, travelled to TAFE weekly and participated in the mandatory unpaid practical placement. There is no evidence she was struggling with this course or evidence she failed to attend TAFE or the practical placement. In addition, there is no evidence she would not have completed the course and in fact, notwithstanding her injury, she completed the course. As such, I am satisfied but for the accident, Ms Higgins most likely future circumstance is, she would have completed the course and attempted to find work in this field. She may have relocated to Holbrook to train as an AI Technician. Nevertheless, she has not provided any evidence of job opportunities in either field of vet nursing and or AI Technicians positions.
Although the only medical opinion with respect to Ms Higgins capacity to work as a vet nurse is Dr Hopcroft, he says “…she continues to have symptoms around her operated left shoulder, and that may be of concern to her should she follow her career as a veterinary nurse and have to undertake the handling of medium size animals”. Otherwise, there is no other medical evidence to support Ms Higgins claim she cannot work as a veterinary nurse. In fact, other than her jewellery making she has not attempted to work since June 2019.
It seems to me all other doctors are optimistic Ms Higgins will progress and make at least, further recoveries. She may not be fit to work full time as a veterinary nurse but, I accept she has a reasonable residual earning capacity. She told me once this case is over, she will start looking for work.
Based on the insurer’s concession I accept Ms Higgins has established an impairment to her work capacity which is productive of economic loss. However, an accurate methodology cannot be calculated based on an expectation of improvement and the question of what the claimant’s residual earning capacity is.
A cushion or buffer assessment is relevant in circumstances where earning capacity has unquestionably been reduced but its extent is difficult to assess, see Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13.
I agree with both parties that her entitlement to her claim for future economic loss can only be assessed as a buffer. I agree with Ms Wall that $50,000 is inadequate. She requires time to continue to improve her left shoulder symptoms. Further, she requires time to look for and apply for suitable employment. She told me she would like to relocate to Holbrook to work with an AI Technician which may lead to other opportunities within this field.
An appropriate buffer should take into account Ms Higgins’ age, time to explore suitable employment opportunities (noting there is a shortage of employees throughout Australia), time to continue to recover from her left shoulder symptoms and noting it has been three years post accident whereby Ms Higgins has been receiving statutory benefits which will cease once this claim has resolved. Having regard to the issues set out above the appropriate buffer for future economic loss is assessed at $195,000 which includes future superannuation.

Assessment of Damages Summary

Under sub-section 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:
·         Past loss of earnings  $90,817.56
·         Past Superannuation  $9,990
·         Fox v Wood  $3,676
·         Future loss of earnings (incl. superannuation)         $195,000
Total Damages Assessed  $299,483.56
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payment $90,817.56.

Costs and Disbursements

The claimant submits a schedule of costs and disbursements as at 6 June 2022.
The insurer submits the second report by Dr Hopcroft should be $1,245.12 because the claimant did not attend on the doctor. He simply prepared a report based on an MRI scan. I agree.
Further, the insurer disputes the claim for six hours conferencing as there is also a claim for three hours for telephone conferences. I agree that the reduction from six hours to three hours is reasonable considering the material contained in the bundle of documents.
Otherwise, all other legal costs and disbursements are included in the attached costs calculator sheet.

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-sections 7.36 (3) and 7.36 (4) of the MAI Act, I specify the amount of damages for this claim as $299,483.56.
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 $34,005 inclusive of GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
(a) the MAI Act;
(b) the PIC Act, and
(c) the Rules.

[2022] NSWPIC 344

7 June 2022