Jawadi-Yare v Allianz Australia Insurance Ltd
[2025] NSWPIC 326
•9 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Jawadi-Yare v Allianz Australia Insurance Ltd [2025] NSWPIC 326 |
CLAIMANT: | Borirath Jawadi-Yare |
INSURER: | Allianz Australia Insurance Limited |
MEMBER: | Elyse White |
DATE OF DECISION: | 9 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages; liability wholly admitted; claimant presented with extensive pre-existing symptoms; claimant had not worked since 2005; no evidence to support claim she was looking for work in aged care before accident; damages limited to past and future economic loss and superannuation; no statutory benefits paid; Held – assessment of damages made in accordance with section 7.36 in sum of $20,000; no claim made by claimant for costs and disbursements. |
DETERMINATIONS MADE: | CERTIFICATE ISSUED UNDER S 7.36 OF THE MOTOR ACCIDENT INJURIES ACT 2017 1. Damages assessed in the sum of $20,000. 2. Costs and disbursements assessed in the sum of $10,586.98. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Mrs Borirath Jawadi-Yare was a front seat passenger in a vehicle driven by her daughter on 17 November 2021. They were stationary at a set of traffic lights when the insured’s vehicle rear ended the car in which Mrs Jawadi was travelling.
The insurer, Allianz Australia Insurance Limited (insurer) wholly admitted liability for the motor vehicle crash.
Mrs Jawadi has made a claim for common law damages for injuries suffered in the crash pursuant to the Motor Accident Injuries Act 2017 (Act).
Her claim for damages is limited to past economic loss and superannuation and, future economic loss and superannuation.
The issues in dispute include Mrs Jawadi’s entitlement to damages on grounds of pre-existing medical symptoms and whether her evidence can be accepted that she was looking for work prior to the crash.
ISSUES IN DISPUTE
The following issues are in dispute: -
(a) What is the nature and extend of the claimant’s injuries caused in the crash?
(b) Has the claimant sustained an impairment to her capacity to work which is productive of economic loss?
(c) What is the claimant’s most likely future circumstance but for the crash? What, if any, is the amount of damages for future economic loss and superannuation?
What is the nature and extend of the claimant’s injuries caused in the crash?
The crash occurred 17 November 2021 at the corner of the Great Western Highway and Reservoir Road, Prospect. Mrs Jawadi says she immediately felt pain in her neck region, head, chest, abdomen, pelvis and back.
The ambulance attended the scene and treated Mrs Jawadi before conveying her to Blacktown Hospital where she was admitted under the care of Medical Officer Dr Andrew Martin.
She complained of ongoing pain in her lower spine, neck and chest wall.
She underwent investigations all of which revealed no fractures or infarctions. The MRI showed multilevel degenerative disc and facet changes with mild multilevel spinal canal narrowing, disc bulge and degenerative joint changes. She was discharged and advised to see her general practitioner in two to three days for ongoing review.
After discharge, she consulted her general practitioner Dr Hanna at Mt Druitt Family Practice.
Prior to the crash, Mrs Jawadi reported a number of ongoing symptoms to Dr Hanna which are documented in clinical notes provided to me during the assessment conference.
These clinical notes reveal a long history of complaints of low back pain, neck pain, carpal tunnel, knees, shoulders and depression for which she was prescribed medication.
In the 12 months prior to the crash, Mrs Jawadi repeatedly reported to Dr Hanna worsening pain around the cervical spine and numbness; worsening back pain with radiation down the left leg and some paraesthesia; pain around her left heal; disc bulge and nerve compression; mental health review for extensive counselling, teary and upset; vertigo, headaches, depression and other ailments.
She received substantial treatment for these symptoms which included MRI scans, CT guided cortisone/epidural injection of her lumber spine and medications.
In her statement dated 15 March 2024, she states at paragraphs eight and nine that before this accident she had sustained workplace injuries to her upper limb and lower back in 1990. She states her symptoms were subsequently resolved by 2001 and that she had made a full recovery and was able to return to work.
She does disclose that the radicular symptoms in her upper limbs and lower back returned in 2016 which were managed with physiotherapy and chiropractic treatment. She says she did not suffer from ongoing significant pain and restriction prior to this accident.
When questioned why she had made this statement which contradicts the clinical notes, she told me she could not remember.
In a more recent statement dated 18 June 2025, she gave an alternate version when she states that during a period around December 2020 and January 2021, she was experiencing residual pain in her lower back and legs and that she had suffered with lower back pain on and off over the past few decades. When searching for employment in 2021 she says her lower back and bilateral leg pain was only mild and intermittent. She says she cannot recall whether she was experiencing this at the time of the accident.
She says she was also experiencing some psychological symptoms in 2021 which were managed with medication. It seems she updated her statement after her clinical notes were disclosed to her.
She was referred by her legal representative to Dr Bodel to interview Mrs Jawadi and provide opinion on her medical symptoms and the cause of these. Her counsel confirmed to me Dr Bodel did not have Dr Hanna’s clinical notes. He had no history of her work injury. The doctor reported she had no symptoms in her neck, lower back, shoulders, wrists, hands and knees at the time of the accident. Dr Bodel diagnosed soft tissue injuries to her neck, musculoligamentous injury to the lower back, both knees and a rotator cuff injury to both shoulders. He assessed whole person impairment of a total of 23%. He agreed her impairments were caused by the accident.
She was also referred by her legal representative to psychiatrist, Dr Teoh to give his opinion and diagnosis of Mrs Jawadi’s psychological injuries caused by the crash on 30 April 2024. Dr Teoh was not provided with Dr Hanna’s clinical notes. Dr Teoh reported Mrs Jawadi presented with significant depressive symptoms and diagnosed a psychiatric permanent impairment which is chronic. He stated she does not have a significant pre-existing psychiatric condition. His whole person impairment assessment was 17%.
Mrs Jawadi was referred to the Personal Injury Commission (Commission) as disputes arose about treatment, whether her injuries were threshold injuries and assessment of whole person impairment.
The first referral to the Commission produced a certificate from Medical Assessor Gorman concluding proposed treatment recommended by Professor Eftekhar was not reasonable or necessary.
Medical Assessor Assem on 30 August 2023 was asked to assess whether injuries were threshold injuries. The doctor accepted Mrs Jawadi sustained an aggravation of pre-existing neck and low back injuries and that these were not threshold injuries.
Medical Assessor Shen diagnosed persistent depressive disorder and other specified trauma and stressor related disorder caused by the accident and assessed WPI not greater than 10%
An assessment of whole person impairment was issued by Medical Assessor Home of 0% and accepted Mrs Jawadi sustained an aggravation of cervical and lumbar spine injuries caused by the accident.
Based on the independent assessments and diagnosis by the Medical Assessors, I accept Mrs Jawadi sustained an aggravation of her pre-existing spinal injuries and psychological symptoms in this accident. As neither Dr Bodel or Dr Teoh had the advantage of Mrs Jawadi’s pre-existing clinical notes, I prefer the opinions and conclusions reached by the medical assessors.
The extent of ongoing restrictions and disabilities caused by the accident was accepted by Medical Assessor Assem where he noted Mrs Jawadi was documented to have paraesthesia but there were no other signs of radiculopathy which she now satisfies more than two criteria for radiculopathy which is not a threshold injury.
I accept Mrs Jawadi has experienced an increase in pain levels, further restrictions and an exacerbation of her depression levels which is impacting on her social and recreational activities with reduced concentration.
Has the claimant sustained an impairment to her work capacity which is productive of economic loss?
There is no dispute Mrs Jawadi has not been in gainful employment since 2005. She says she was actively looking for work as an interpreter at the time of the accident.
She says she planned to enrol in a TAFE course to gain a certification in aged care. She suggests there are a multitude of opportunities in the aged care sector.
She says as a result of the accident-related injuries she suffers from ongoing pain of the back and left leg region. She says her functional capacity has been significantly reduced.
She states her mental health has also declined considerably. She says her motivation and memory have declined. She says she is concerned that she will not be able to work because of her injuries in the future.
Mrs Jawadi cared for her ill husband from 2005 until 2018. She says in 2021 she began seeking employment as she says she had capacity to work, and she wanted to keep herself busy.
She told me during the assessment conference she would search on the computer for job vacancies. However, there is no supporting evidence she was applying for work. There is no evidence of any job opportunities. She had opportunities from 2018 until this accident to enrol in TAFE. During this period, she had three years to apply for work and/or enrol in studies.
Although Mrs Jawadi says it was her intention but for the accident to study aged care and work in this sector, it is unlikely she would have had functional capacity to work in this physically demanding work due to her pre-accident injuries well documented in her general practitioner clinical notes.
I have not been persuaded Mrs Jawadi was looking for work as an interpreter but for the accident as she had a period of three years after her husband was admitted to a nursing home to seek employment. Nor am I satisfied she would have studied aged care or worked in this field due to her pre-accident disabilities.
I make no assessment of past economic loss or superannuation.
What is the claimant’s most likely future circumstance but for the crash? What, if any, is the amount of damages for future economic loss and superannuation?
Damages for future economic loss and superannuation are based on a diminution of earning capacity for all work reasonably available to the claimant to retirement which originally was suggested to be to age 70 years. As there is no supporting evidence, this retirement age was submitted to be to age 67 years.
The amount which the claimant is seeking for future economic loss is $120,000 plus superannuation of $17,472.
The claimant fails to address the future economic test of most likely future circumstance.
The insurer says Mrs Jawadi would have continued to suffer from ongoing significant symptoms, that these conditions would have prevented her from commencing any studies, that she was required to provide work certificates to the workers compensation insurer, and subsequently to Centrelink and that once she reaches eligibility, she will be permitted to apply for the aged pension.
Considering these submissions, the insurer argues Mrs Jawadi has no loss of damages for future economic loss and superannuation.
Mrs Jawadi was questioned at length about the certificates of capacity she requested from Dr Hanna which are well documented in the clinical notes. Mrs Jawadi agreed these were issued which enabled her to continue to receive workers compensation and Centrelink benefits.
The most likely future circumstance but for the accident is Mrs Jawadi would have continued to receive benefits. However, she did suffer an aggravation to her spinal injuries and a worsening of her psychological symptoms which has impacted on any opportunity to consider work as an interpreter which she has had experience in this field previously. She also may have been able work in a part time position in a sedentary position which I accept she can no longer perform.
A cushion or buffer assessment is relevant in circumstances where earning capacity has unquestionably been reduced but its extent if difficult to assess, see Alliance Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13.
I agree with the claimant’s submissions that future economic loss can only be assessed by way of a buffer as there is no methodology to accurately calculate this loss.
The amount submitted by the claimant of $120,000 is excessive considering Mrs Jawadi’s past history of employment and her lack of effort in seeking any work or study three years pre-accident.
Having regard to her age and the unlikely future she would have worked in aged care because of her pre-existing condition, the appropriate buffer for both future economic loss and superannuation is $20,000.
SUMMARY
The amount of damages is assessed in the sum of $20,000. No statutory benefits have been paid.
COSTS AND DISBURSEMENTS
During the assessment conference, I raised with the claimant’s instructing solicitor the issue of costs and disbursements which had not been claimed. Mr Cooper, the insurer’s instructing solicitor considered the disbursements may have been incurred in the medical dispute and as such, reimbursement has been made previously.
I issued directions to the claimant solicitor to review this and provide any claim to Mr Cooper on or before close of business on 25 June 2025 and replies by the insurer by close of business on 27 June 2025.
I reviewed the portal on 1 July, 2 July, 3 July, 4 July, 5 July 2025. As no claim for costs and disbursements had been uploaded, I requested a message be shared with the parties on 1 July 2025 advising of my intention to publish my decision with reasons by 9am on 2 July 2025. No claim had been made by the claimant for costs and disbursements as of 2 July 2025.
In order to avoid an obvious error I asked the Dispute Officer to monitor the portal.
I received a message from the insurer advising a claim had been shared with them and that a reply to submission would be made available. I waited until I was furnished with both submissions on 9 July 2025.
I have completed the 2017 Costs Calculator which will be provided to both parties. The amounts are in accordance with the claim made and the updated 2024-2025 version. I allowed 2 hours for conferences. According to the regulated costs, the hourly rate is $374.
The total costs have been assessed in the sum of $10, 586.98.
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