Kemp v IAG Ltd t/as NRMA Insurance
[2022] NSWPIC 77
•18 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |||
| CITATION: | Kemp v IAG Ltd t/as NRMA Insurance [2022] NSWPIC 77 | ||
| CLAIMANT: | Rukhshana Kemp | ||
| INSURER: | IAG Ltd t/as NRMA Insurance | ||
| MEMBER: | Terence O’Riain | ||
| DATE OF DECISION: | 18 February 2022 | ||
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment; damages claim only; liability wholly admitted; injury; passenger; head-on collision; causation of damage; combination of psychological and functional disability; past loss of earnings; future loss of earning capacity; earning capacity assessment; loss of opportunity; loss of opportunity to change career; theoretical earning capacity of no value where no reasonable prospect of obtaining work to utilise it; Mead v Kerney considered; residual earning capacity; most likely future circumstances; evidence; witnesses; interest; legal costs; Personal Injury Commission Rules 2021; Malec v JC Hutton; Husher v Husher; Wallace v Kam; Luntz, Assessment of Damages for Personal Injury and Death, 5th edition considered; Held- on the issue of liability for the claim, the insurer admits it 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; damages assessed as $1,084,866; costs assessed as $79,318.89 in accordance with the Motor Accident Injuries Act 2017. | ||
| DETERMINATIONS MADE: | 1. On the issue of liability for the claim, the insurer admits it 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 $1,084,866. 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 $79,318.89 inclusive of GST. | ||
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
Background
Late on 1 January 2018 the claimant, Ms Rukhshana Kemp, was asleep in her car’s front passenger seat travelling north on the Pacific Highway near Grafton, NSW.
Ms Kemp's husband was driving, and her teenage daughter Shakira was in the back seat. The family was on its way to Hervey Bay, Queensland.A car travelling south crossed the freeway to the north bound road to hit their car head-on. There was a secondary collision after which Ms Kemp may have briefly lost consciousness. When the car ceased to move, Ms Kemp immediately felt pain in her right thumb and wrist, shoulder, neck, back and chest and was fearful that she was going to die. An ambulance transported Ms Kemp to Lismore Base Hospital. Her dislocated right thumb was placed in a cast.
The parties agree that Ms Kemp suffered the following injuries as a consequence of the accident:
(a) injury to the right hand and wrist with dislocation of the carpometacarpal joint of the right thumb;
(b) injury to the superficial radial nerve, and
(c) soft tissue injury to the neck.
The insurer disputes Ms Kemp’s claim, that the following injuries occurred as a result of the accident:
(a) right shoulder injury with rotator cuff pathology;
(b) lower back strain, and
(c) post-traumatic stress disorder with depressive symptoms.
At the time of the accident, Thompson Healthcare Pty Limited employed Ms Kemp as a fourth-year nursing assistant on a permanent part-time basis at approximately 35 hours per week.
During 2017 Ms Kemp had made up her mind to study to become a registered nurse. She had started working in aged care in 2016 in Sydney, after successfully completing a nationally recognised Certificate III in Health Services Assistance and medication administration to Certificate IV.
Ms Kemp and her husband were planning to move to Hervey Bay by mid-2018 for her to commence to study a Bachelor of Nursing at the University of the Sunshine Coast and her husband would open a Fijian restaurant. She intended to work in the restaurant part time while she studied.
From the date of accident to 7 March 2018 Ms Kemp was totally incapacitated for employment due to the accident, a period of approximately two months. On 8 March 2018 Ms Kemp returned to work with her pre-accident employer, with some accommodation made for her accident-related conditions.
Although Ms Kemp returned to work in aged care for almost two years, she claims that due to the accident the combination of the thumb injury with her psychological condition meant that she could not continue in that work or proceed with her studies. On 20 March 2020 Ms Kemp ceased work on medical advice, and she has not worked in any capacity since.
It is not in dispute that Ms Kemp can no longer work as an assistant in nursing and has suffered economic loss in the past.
It is also conceded that Ms Kemp could not work as a registered nurse if she had succeeded with her studies due to her physical condition.
It is agreed that but for the injury, on or around 1 July 2018 Ms Kemp was going to commence a three-year Bachelor of Nursing degree on a full-time basis in Queensland.
If Ms Kemp had obtained her nursing qualifications then her starting salary as a registered nurse in Queensland would have been approximately $1,060 net per week. Ms Kemp’s case is that she could have progressed to be a registered nurse and have earned upwards of that figure to at least $1,500.
The issues to be decided in this case are whether or not Ms Kemp has suffered an ongoing impairment to her earning capacity under Division 4.2 of the Motor Accidents Injuries Act 2017 (the MAI Act), which will be productive of economic loss and how that should be quantified. There is no entitlement to non-economic loss.
In order to assess these issues, I must consider:
a. whether Ms Kemp can prove that the most likely circumstances would be that she would have succeeded in her nursing studies to become a registered nurse at all or within the minimum time of three years and ought to be compensated from mid-2021 accordingly;
b. whether Ms Kemp could have earned over time and progressed to be promoted in her registered nursing career to earn at least $1,500 net per week for the rest of her career;
c. the extent of Ms Kemp’s residual earning capacity, i.e.- whether the insurer has satisfied me that Ms Kemp has residual earning capacity in alternate employment to offset her loss of capacity as an assistant in nursing or the potential loss of working as a registered nurse, and
d. whether Ms Kemp’s loss can be calculated at a weekly rate or whether a compensatory buffer would be appropriate.
The parties have agreed on the calculation method for past economic loss which is set out in the reasons.
The assessment was conducted on 16 September 2021 via MS Teams.
Ms Kemp sat next to her counsel and solicitor during the online assessment, and the insurer's counsel questioned her extensively on her attempts to return to work, her pre-accident health, her loss of capacity to become a nurse and as to credit regarding her complaints of heart palpitations.
There was a further video assessment on 10 December 2021 to question witnesses regarding Ms Kemp’s capacity to successfully complete her studies.
Jurisdiction
The rules of evidence do not apply to this assessment, and I may look into any matter relevant to the issues in dispute in such manner, subject to providing procedural fairness to all the parties.
The Personal Injury Commission (the Commission) was established on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (PIC Act).
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.Because of the date of the accident, clause 14D(3)(b) provides that the MAI Act and the Guidelines continue to apply.
Documents considered
I have considered the documents provided in the application and the reply, and any further information provided by the parties.
Evidence
Claimant’s evidence
Ms Kemp has provided statements dated 5 July 2021 and 18 November 2021 and gave oral evidence.
Ms Kemp was born in Fiji. She completed the equivalent of the HSC in Fiji in 1998. She then worked in hospitality and administration at a resort until 2002 when she met and married her first husband, an Australian man.
Ms Kemp began to work for her first husband in his boating business in Fiji as well as continuing to work in hospitality.
Ms Kemp fell pregnant and had a break from work from mid-2004 until the end of 2005 to have and care for her child.
Ms Kemp returned to work late 2005 again combining hospitality work and helping in the husband's business.
In June 2012 the family moved to Hervey Bay in Queensland, but the couple separated in late 2012.
Ms Kemp volunteered in aged care and completed a Technical and Further Education (TAFE) based Certificate III in assistant in nursing.
Ms Kemp found she enjoyed the work.
In January 2013 Ms Kemp met her second husband on a visit to Fiji and remarried in July 2013. They have not had children.
Ms Kemp and her second husband moved to Sydney in February 2016 in order to seek more opportunities to work as an assistant in nursing.
Ms Kemp initially worked as a process worker until October 2016 when she started as an assistant in nursing with Thompson Health Care. After a year her employment became permanent.
Ms Kemp performed tasks such as:
(a) monitoring medication and blood pressure;
(b) cleaning;
(c) bathing, toileting and lifting patients, and
(d) feeding patients.
Ms Kemp then considered becoming a registered nurse, which requires a Bachelor of Nursing.
During 2017 Ms Kemp decided to move back to Hervey Bay to study nursing and assist her second husband in setting up a business. This was the plan until the accident intervened.
After the accident on 1 January 2018 and admission to Lismore Base Hospital
Ms Kemp was discharged on 2 January 2018 to the care of her general practitioner (GP) in Sydney. Her GP, Dr Moajjema, referred her for physiotherapy, further scans and certified her unfit to work until March 2018.In late January 2018 Ms Kemp experienced breathing difficulties. Tests at Nepean Hospital showed no abnormalities. She was referred to cardiologist Dr Graham Tanswell who diagnosed sinus tachycardia aggravated by anxiety symptoms.
In March 2018 Ms Kemp returned to work with Thompson Health Care. Her lower back pain had settled but her right thumb, neck and right shoulder remained sore and became aggravated after she returned to work.
Ms Kemp experienced anxiety, panic and depression during this time, which manifested as being avoidant, isolating from others, becoming frustrated due to her pain, experiencing flashbacks and frightening recollections as well as nightmares.
Ms Kemp was treated with counselling and medication for the symptoms.
Ongoing problems of the hand led to her being referred to hand surgeon Dr Smith.
Dr Smith referred her for scans and further physiotherapy. The scans did not confirm any structural damage, but her hand did not recover.In 2019 Ms Kemp was referred to Dr Michael Dowd, another hand specialist who recommended further therapy and ordered scans due to the lack of recovery. He also prescribed pain relief with the physiotherapy, which had mixed results.
Ms Kemp required further counselling for her psychological symptoms which had caused her to take more time off work.
Her return to work was a struggle as she could not achieve her pre-accident levels of physical effort.
Ms Kemp’s statement and evidence says that she could see that her employers and colleagues were becoming frustrated with her. Ms Kemp saw her performance as unsatisfactory in doing physical work.
In May 2019 a patient fell on her, which aggravated her neck problems and caused her to lose time off work.
Ms Kemp was experiencing ongoing pain and anxiety which made heavier work painful to bear and she required more sick leave.
Due to ongoing problems with her right hand, neck and right shoulder, which aggravated her psychological symptoms she was unable to cope with work.
With Dr Dowd's support, Ms Kemp ceased work in March 2020 and her employer terminated her position in September 2020.
Ms Kemp's homelife became difficult as her husband was also suffering his own issues from the motor accident. The quality of the relationship deteriorated.
Ms Kemp says now that she plans to divorce her husband, but they are sharing their home at the moment to save costs.
Ms Kemp says that her life at home consists of being unable to do housework, doing occasional exercise to combat her weight gain, which is a result of her inactivity from the accident. She is not motivated to make proper meals and eats very simply.
Ms Kemp's right hand has reduced grip strength, ongoing numbness and tightness. She continues to wear a cast on the injured thumb.
Ms Kemp's neck and shoulder pain requires medication, although she is not receiving any intensive pain management.
Ms Kemp says she is “sad and grumpy”. She still suffers nightmares and avoids driving longer distances.
Ms Kemp's combination of psychological and physical injuries means that she is no longer fit to work in aged care, particularly because she can't lift or push loads.
Ms Kemp believes now that she could not cope with being a registered nurse, in spite of her ambition. Her psychological condition is such that she could not deal with the increased responsibilities of coping with aged residents.Ms Kemp has seen the insurer's reports regarding alternative duties.[1]
[1] R8 ECA report dated 27 April 2021.
Ms Kemp denies that she could move into the suggested roles in customer service, medical receptionist or call centre work because she lacks computer skills, is unable to use her right hand and that her inability to concentrate and deal with her potential stakeholders, which she says is related to her psychological condition and impairs her learning capacity that would make it impossible for her to successfully carry out the work.
Ms Kemp thinks that she could not cope with the psychological demands of these roles. She says that her computer skills are not good and when she tried to do a course to improve these skills; due to the pain in the right thumb and hand with painful symptoms in her right shoulder and neck while working on the keyboard it was difficult.
Ms Kemp created a job-seeking log marked AD3, which records her applying for 37 roles from mid-June 2020 until November 2020.
None of the 37 job applications progressed to an interview.
Ms Kemp sees her GP about twice per month. She continues to take medication to treat her physical and emotional problems. She avoids taking her prescription opioids due to fear of becoming dependent on them. Her husband applies Voltaren to her shoulder and neck when her condition flares up. The medication she takes costs approximately $50 per month.
Ms Kemp’s supplementary statement dated 18 November 2021 addresses her English skills and literacy. She states that they would have been sufficient to successfully complete her studies. She says that the TAFE computer course outcome was due to pain and a loss of focus and concentration from her psychological condition.
Ms Kemp asserts that prior to the accident she had the motivation and skills to succeed in her studies.
Both counsel questioned Ms Kemp on 10 December 2021.
Mr Mooney briefly examined Ms Kemp to clarify who had helped her write her résumé, which was written in 2016, because at the last assessment Ms Kemp said that her friend, who ran a business writing résumés had prepared it for her.
Ms Kemp stated that she had asked her friend to type and print her résumé based on her handwritten draft. Ms Kemp confirmed that was the extent of the help provided.
Ms Allen questioned Ms Kemp on what subjects she studied in year 12 in Fiji.
Ms Kemp said that she had matriculated in social science, basic science, maths, accounting and English.
Ms Allen asked Ms Kemp why she had not studied further. Ms Kemp answered it was because around the time she finished year 12 her father was injured in a work accident, and she needed to work to support her family.
She had done a Certificate III as an assistant nurse, which took three months to complete.
Ms Allen questioned Ms Kemp whether she considered that she would need to do further studies to improve her English.
Ms Kemp answered she was aware that she would have to do an English competency test before she commenced and if she had not passed then she would have done additional study to improve her language skills. Ms Kemp believes she would have eventually passed. She also had a rough idea of the content of the Bachelor of Nursing because she had asked registered nurses at Thompson Healthcare what subjects she would need to study.
Ms Kemp knew that the course involved science and she would be tested on her ability to deal with patients in aged care and understanding the levels of responsibility. There was a science component in her Certificate III, and she knew that it would be more complicated in a degree.
Ms Kemp knew that she would need to be able to use a computer.
Ms Kemp was questioned about her earlier statement dated 5 July 2021 (AD8) in particular paragraph 55 where she said that her computer skills were not good. She now describes her skills as being average before the accident and that if she needed access to assistance to improve it would have been available to her. She could have done extra study to update her skills. She was confident that she would have been able to improve because before the accident she described herself as "sharp minded".
When she did the TAFE computer course after the accident she needed the teacher’s help to complete the requirements.
Ms Kemp said after the accident she had lost her sharpness, and her "thinking power" was not good so she would become easily upset. This had led to her arguing with staff at Thompson Health Care and her supervisors.
Ms Allen asked about the interview with the expert on nursing education Ms Sessions. She recollected it was about a 25 minute interview.
I asked questions about her certificate IV in medicine administration. Ms Kemp said it took between four to six months to complete.
Medical evidence summary
Dr Moajjema was Ms Kemp’s GP from 16 October 2017 and coordinated her treatment post-accident. Dr Moajjema referred her to numerous specialists and ancillary health providers.
Multiple medicolegal specialists examined Ms Kemp between 2018 and 2021 regarding the extent and nature of her psychological and physical conditions. I have read the treating doctors’ correspondence, the medico-legal assessments and summarise the conclusion of each in the following table and paragraphs.
Medical practitioner
Date assessment
Medical specialty & qualified by
Conclusion
Psychiatric/psychological assessments
Medical Assessor
Dr Parmegiani
1 November 2018
Psychiatrist, DRS for minor injury dispute
Sufficient symptoms to support diagnosis of post-traumatic stress disorder
Dr Christopher Canaris
29 March 2020
Psychiatrist, claimant
Presentation consistent with post-traumatic stress disorder entirely attributable to the motor accident. Her post-traumatic stress disorder undermines her capacity to cope with her physical injuries
Dr Graham Vickery
8 September 2020
Psychiatrist, insurer
Dr Vickery found no links between Ms Kemp’s psychological condition and the motor accident. He diagnosed an adjustment disorder due to personal stressors.
Medical Assessor
Dr Parmegiani
18 February 2021
Psychiatrist for DRS re permanent impairment
Confirmed diagnosis of post-traumatic stress disorder - the accident “constituted a valid criterion for potential diagnosis of PTSD”. Dr Parmegiani addressed Ms Kemp's capacity for work. "Ms Kemp gave up her job in the nursing home due to a combination of pain and anxiety. She was disappointed that no light duties were available for her. Given the present circumstances, I believe that if she were pain-free, she should be able to work at least part-time in a relatively stress free position, up to 20 hours per week."
Dr Christopher Canaris
23 March 2021
Psychiatrist, claimant
Ms Kemp was depressed, including contemplating suicide, lacking motivation, socially withdrawn, chronic pain and disability. Post-traumatic stress disorder was a direct result of the accident. He concluded Ms Kemp was “marginally employable on psychological grounds alone and would find it difficult to cope with a high workload, deadlines, deal with the public, and the like ….she is realistically unemployable”. He disagreed with Dr Vickery’s conclusion that she had no accident related impairment with regards to ability or employment.
Physical injury assessments
Dr Moajjema
20 October 2017
25 March 2018
30 May 2019
26 August 2021
Treating general practitioner
Ms Kemp was motivated about her work. “work 15 hour /day for 5 days Doing [sic] for long time, not coping, discuss issues, not much financial burden ,but she is used to work and cannot sit at home”
Ms Kemp complained re pain in her tailbone following the accident.
A patient fell on Ms Kemp, and she was having difficulties working with aged care patients.
Letter 16 February 2021 to BT marked R19 broadly agrees that alternative duties including security guard were appropriate
In letter dated 26 August 2021 bundled with clinical notes as part of page 201 of AD8 Dr Moajjema after reading Drs Assem and Canaris reports opined that he considered Ms Kemp was unsuited to the alternate work proposals proposed in the insurer’s earlier vocational report
Dr Nicholas Smith
7 March and 10 October 2018
Referred Ms Kemp for scans as her condition was not settling.
Dr Endrey-Walder
11 October 2019
General surgeon, claimant
Ms Kemp’s right hand grip strength tested at 7kg compared with 16kg for the left.
Opinion is that Ms Kemp suffered soft tissue injury to right shoulder and neck as a result of accident.
Dr Michael Dowd
6 August, 27 August, 17 September, 29 October 2019, 30 January 2020.
27 February 2020 and 24 March 2020
Treating hand surgeon
Scans showed no pathology, but her symptoms were consistent, and insufficient recovery to remain in employment.
Cortisone injections were tried unsuccessfully, recommended Ms Kemp have time off work - which reduced her pain. He recommended a change of occupation.
Associate Prof William Cumming
18 August 2020
Orthopaedic surgeon, insurer
Concern that Ms Kemp’s condition was not stable, and suspected deficient investigations. Suspected articular damage to her right thumb. Scans showed no potential for further treatment that would mitigate Ms Kemp’s condition and improve her fitness for work. "The prognosis remains guarded, and I do not think she will return to work as any grip or pinch activities are extremely painful for her right hand. She is certainly unfit to return to work as an assistant in nursing in her current clinical state and this is a permanent situation without further treatment."
Dr Endrey-Walder
17 February 2021
General Surgeon, claimant
Supported a change of occupation for Ms Kemp; supported her attending pain management. “…in Ms Kemp’s interest to change occupations.”
Assessor Dr James Bodel
22 April 2021
Medical Assessor for Personal Injury Commission to assess permanent impairment
Assessed Ms Kemp’s permanent impairment for her physical injuries (right thumb, hand and shoulder), concluding that these injuries were related to the accident.
Dr Mohammed Assem, rehabilitation specialist
18 June 2021
Rehabilitation specialist for claimant
Found weakness, stiffness and reduced dexterity. Ms Kemp's capacity to perform alternative duties was dependent on there being minimal use of her dominant right hand and that this would have impact on her obtaining suitable employment, given her associated anxiety and depressive symptoms. Agreed with Dr Canaris and Assessor Parmegiani that Ms Kemp had a "significant incapacity for work in the open labour market against able-bodied employees due to the combination of her physical and psychological condition."
The clinical notes show that Ms Kemp was consistent in seeking treatment and that after January 2018 many of her worries about family, her marriage and general health were linked to the motor vehicle accident.
Findings in vocational assessment
The insurer relies on a multidisciplinary report from ECA assessing Ms Kemp’s earning capacity dated 27 April 2021[2].
[2] R8.
It is the product of occupational medicine specialist Dr Robin Mitchell, psychological consultant Ms Alicia Tyler and vocational consultant Ms Jemima Doley. It is based on a review of documentation provided to ECA and each specialist interviewing Ms Kemp.
It is an analysis of Ms Kemp’s functional and psychological fitness to work, identifying suitable roles and availability of that type of work in the Fraser Coast region of Queensland and metropolitan Sydney.
The roles identified as suitable for Ms Kemp are:
a. call centre operator;
b. medical receptionist, and
c. customer service representative.
Dr Mitchell makes the following recommendations regarding restrictions and ability to work:
a. regarding lifting and carrying Ms Kemp should avoid sustained forceful or awkward right hand gripping actions and frequent manual handling beyond 5kg in force with respect to the right arm whenever carrying out any lifting, carrying pushing and pulling actions;
b. she is able to work full-time in the suggested jobs including overtime, and
c. she is not fit to do her preinjury work.
Ms Tyler records that “Ms Kemp described ongoing difficulties related to interpersonal issues with her directors given her inability to perform heavy lifting impairments the concentration and periods of crying”.
Ms Kemp also tells Ms Tyler that her concentration is poor and that she finds it difficult to retain information when reading. Her ability to work in a team would depend on whether or not she was in pain, because that affected her irritability and interactions with colleagues. At the time ECA assessed Ms Kemp, she said she could not handle pressure and that it would be difficult for her in a call centre role if she had to deal with difficult customers.
Ms Tyler’s observations were that Ms Kemp had adequate concentration during the assessment and that this demonstrated her ability to follow directions, work as part of a team and handle low to moderate levels of pressure.
Ms Tyler writes that Ms Kemp demonstrates resilience having returned to work at pre-injury hours and duties following the motor accident, as well as returning to driving and completing retraining in computer skills.
Ms Tyler’s opinion is that because Ms Kemp cooperated with the ECA process then she ought to be able to work full-time in the suggested occupations. It is acknowledged that “Ms Kemp’s mental health is largely dependent upon her pain levels and physical tolerances, and returning to work within her physical restrictions, as advised by the medical assessor, will support Ms Kemp psychological management at work”. The ECA’s psychological consultant reports that Ms Kemp psychological capacity for employment is not adversely impacted.
The vocational consultant assessment reports that Ms Kemp’s education, work experience and her language skills are transferable to the suggested roles.
In the self-evaluation part of the vocational report Ms Kemp confirms that although she has had experience dealing with customers in her work environment that she can get very frustrated and angry and have trouble focusing when it comes to learning new skills, and that she is concerned that she will have difficulty dealing with customers in her post injury state.
Ms Doley reports that prospects for the administrative clerical and sales role in the relevant job markets are sound.
Claimant’s other witnesses
In response to my directions given on 16 November 2021 Ms Kemp provided further evidence in witness statements and an expert report was provided regarding
Ms Kemp’s potential to pass her nursing exams and qualify as a registered nurse.The insurer objected to this additional evidence being admitted and sought to question the authors. This was approved in further directions given on 1 December 2021.
Ms Kemp’s friend Janis Price provided a brief statement dated 18 November 2021[3].
[3] AD14.
Ms Price is a registered nurse and a friend of Ms Kemp's from Hervey Bay. She is an immigrant from Zimbabwe who had a substantial career in horticulture for 20 years, then switched to being an assistant in nursing. She took up studies as a mature student at the University of the Sunshine Coast in Hervey Bay. She is now a registered nurse working in aged care in Hervey Bay.
Ms Price undertook the same path that Ms Kemp proposed to take to registered nursing.
She states that the university actively assists students with non-English speaking backgrounds to improve their writing and literacy's skills.
Ms Price attended via telephone on 10 December 2021 and Mr Mooney confirmed that Ms Price currently works part-time in Hervey Bay.
Mr Mooney asked Ms Price if she wanted to work full-time work would it be available. Ms Price confirmed that she could because there was high demand for aged care registered nurses.
Ms Allen questioned Ms Price to confirm if English was her first language and that she had studied in English at school. She said that was so.
Ms Price did not matriculate and chose to do a horticultural apprenticeship. That required studies at TAFE, where she completed a Certificate III in horticulture.
She was questioned about her computer skills and how that affected her studies as a registered nurse. She said prior to commencing studies as a registered nurse she had terrible computer skills and found them extremely difficult to operate.
During her nursing studies she had a lot of help from fellow students, who were competent in that field as well as on-campus assistance to get her work checked to improve her written responses. Ms Price used those services a lot during her studies.
Ms Price studied part-time due to having three young children, working part-time and managing the family while her husband worked remotely. This slowed her studies, and it took six years to complete them.
Ms Price recollects that the first two subjects she studied in nursing were anatomy, nursing practices and some law.
Ms Price says she thinks she met Ms Kemp around 2015 when they had children in the same year at school. Since Ms Kemp moved to Sydney, they would talk on the phone every two months and whenever Ms Kemp visited Hervey Bay they would get together.
Ms Price’s observation of Ms Kemp is that she has the intelligence and motivation to pass the Bachelor of Nursing. Ms Price found it a difficult course because of her lack of academic background, but her university was very helpful and made it possible.
An expert witness Ms Pamela Sessions provided a report dated 18 November 2021. Ms Sessions Curriculum Vitae (CV) confirms that she is a nurse educator with experience at the Australian College of Nursing and University of Technology Sydney (UTS) and she acknowledges she has read Procedural Direction PIC4 and was mindful of her obligations in preparing an expert’s report.
Ms Sessions provided her report after examining the results from the TAFE computer course and a telephone interview with Ms Kemp. She provided her opinion on Ms Kemp's literary and English competence as it applies to passing a Bachelor of Nursing degree.
In her experience the Certificate III required to be an assistant in nursing is a recognised path to progressing to being a registered nurse.
Being of non-English speaking background is also common in nursing studies and aged care.
Ms Sessions considered Ms Kemp's literacy sufficient to pass a degree, and that if she needed it she could have assistance from her university, which in common to all universities in Australia has programs to improve her written responses and literacy.
Ms Sessions has seen people who are less skilled and literate than Ms Kemp achieve the degree requirements.
On 10 December Ms Sessions attended for questioning by telephone and Ms Allen questioned Ms Sessions for the insurer. She asked Ms Sessions if she was familiar with the Certificate III assistant in nursing course and whether it was applicable to the Bachelor of Nursing
Ms Sessions said the Bachelor of Nursing is more encompassing than an assistant in nursing course. It involves legal, anatomy and science subjects. The study done for an assistant in nursing does not translate automatically to a Bachelor of Nursing. However, Ms Sessions confirmed that becoming an assistant in nursing is a common pathway to becoming a registered nurse in aged care.
Ms Sessions conceded that not every student who starts the registered nursing course passes, and some students do not pass the first time they attempt the subjects.
Ms Sessions commented that it is particularly so with younger students arriving from overseas who tend to party due to experiencing freedom for the first time.Ms Sessions opined that mature students are more focused and adjust well to the demands of the course.
Ms Sessions confirmed that during the 25 minute interview Ms Kemp’s answers to her questions demonstrated that she had a good grasp of the principles of nursing in the aged care context. In her opinion Ms Kemp was able to handle complex communications.
Ms Kemp had no difficulty answering the questions during the interview.
Ms Allen asked Ms Sessions about Ms Kemp’s written work. Ms Sessions said that it was less strong than Ms Kemp’s spoken language and that maybe she would need an English as a Second Language (ESL) tutor.
Ms Sessions confirmed that there was a “fair amount” of written work, but that would not be a problem because there are different pathways for assistance. Most universities have substantial assistance for students who need help with written work.
In further questions Ms Sessions agreed with Mr Mooney that mature students were usually more motivated than younger students.
Registered nurse Anna Moyo provided a statement dated 18 November 2021. She worked with Ms Kemp in Sydney in aged care and had opportunities to observe her. In her opinion, Ms Kemp has shown herself to be an excellent assistant in nursing who worked hard. However, the statement does not address how Ms Kemp functioned before and after the accident.
Ms Moyo was not available to attend the hearing by telephone. Ms Allen submitted that I could not accept her statement, in particular because it does not address how able Ms Kemp was prior to the accident and after the accident.
I can accept that Ms Moyo’s statement indicates that Ms Kemp worked with registered nurses, she made it known that she was going to attempt to become a Registered Nurse (RN) and had displayed competence as an assistant in nursing that would have been applicable in registered nursing.
Insurer’s evidence
I have considered Dr Vickery’s report and the ECA report referred to above.
Submissions
Claimant’s Submissions
Past economic loss
The claimant’s attempts to return to her pre-injury role failed and all doctors involved in this case agree that she is not fit for that employment.
The parties have agreed on a method to calculate past economic loss, which is set out in the reasons.
Fox v Wood
Ms Kemp’s solicitor provided the following method for calculating Fox v Wood.
(a) the insurer’s payment summaries indicate the insurer withheld tax of $2,670 in 2018 and $808 in 2019, which totals $3,478;
(b) 2018 Notice of Assessment indicates earnings of $62,541 and total tax was calculated at $13,051;
(c) that equates to a percentage of approximately 20.868;
(d) applying that 20.868% to the insurer’s payments of $10,667 provides a tax liability of $2,226;
(e) the 2019 Notice of Assessment indicates earnings of $58,112 with tax calculated at $10,387;
(f) this equates to a percentage of approximately 17.875, and
(g) applying 17.874% to the insurer’s payments that year of $5,944 provides a tax liability of $1,062.
There was no agreement at a proposed figure of $3,732 which was the higher figure of $2,670 for 2018 and $1,062 from 2019.
The insurer did not propose an alternative means of calculating the loss, but proposed a figure based on the amount of tax it paid from statutory benefits.
Future economic loss
Ms Kemp would have commenced her nursing degree in mid-2018, which she would have studied full-time while working part-time.
Ms Kemp relies upon the Queensland Health published rates[4] for a registered nurse because she would have relocated to Hervey Bay in June 2018.
[4] AD8 page 320.
Queensland nursing offers a starting annual salary of $70,702 gross ($1,060 net per week (pw)) increasing with advancement to around $122,964-plus annually ($1,682 net pw). The rates do not include overtime.
Given Ms Kemp’s age, it is reasonable to assess her uninjured earning capacity over 28 (now 27.5) years at not less than $1,500 net per week referable to career advancement and overtime earnings.
The most significant dispute between the parties relates to residual earning capacity. Ms Kemp relies upon the opinions of the Commission’s Medical Assessor, Dr Parmegiani, Dr Canaris, Dr Endrey-Walder, and Dr Assem. The insurer relies upon the opinions of Dr Vickery and an earning capacity assessment.
Ms Kemp is unfit for nursing and many other employment positions in light of her chronic disabling pain at the right hand together with her neck and right shoulder pain and restrictions.
Medical Assessor Parmegiani’s opinion was that if pain-free, Ms Kemp would only be fit for up to 20 hours per week in a relatively stress-free position.
Dr Canaris finds that Ms Kemp’s was marginally employable at best on psychological grounds alone.
Dr Vickery opines that Ms Kemp’s psychological condition is unrelated to the accident.
Drs Endrey-Walder and Assem were of the view that the accident related injuries impaired Ms Kemp’s capacity for physical duties.
The insurer’s second Earning Capacity Assessment report concludes that Ms Kemp was fit for full-time work as a call centre operator, medical receptionist, or customer service representative.
Medical Assessor Parmegiani’s and Dr Canaris’s opinions contradict the ECA report finding that Ms Kemp could work full-time with “nil psychological restrictions”.
The roles recommended involve computer work and activities requiring repetitive movements of the right arm, which is beyond Ms Kemp’s physical capacity. Ms Kemp struggled to undertake a short computer course due to difficulties keying, maintaining flexed postures, as well as her issues concentrating and focussing.
In later submissions it was said Ms Kemp cannot present for office work with her limited grammar, literacy, and computer skills, that were not remediated by her attendance at the computer course attendance at the four day course.
The ECA does not address the psychologically demanding nature of the recommended employment positions particularly call centre and customer service role.
The ECA report fails to consider that combined effects of the physical and psychological injuries amplify her incapacity.
Ms Kemp has been left with a “de minimis” earning capacity on the open labour market.
Ms Kemp’s lawyers have submitted that her situation will not improve. Medical Assessor Parmegiani’s view was that post-traumatic stress disorders that persist beyond two years become chronic and treatment-resistant. Ms Kemp’s right hand is worse given Dr Endrey-Walder’s opinion that the hand will suffer early degenerative changes.
Residual earning capacity
Ms Kemp relies on [5], which found that once a claimant has established a loss of economic capacity then the insurer bears the onus to prove that a claimant has a practical chance to exercise any remaining residual earning capacity.
[5] Mead v Kearney [2012] NSWCA 215.
The insurer failed to discharge the onus because it provides no evidence to establish the proposition that an employer would accommodate Ms Kemp’s restrictions.
The insurer has failed to prove that Ms Kemp’s condition will "be accommodated by future employment markets [and so] it cannot be concluded that [her] theoretical residual earning capacity will be of any use”. (at [34]). As such, she does not have a residual capacity on the open labour market.
Superannuation
Ms Kemp claims future superannuation at 14.34% of the net loss to account for legislated increases to the superannuation guarantee rate, as per the Furzer & Crestani Assessment Handbook at page 25, which has been calculated in accordance with the principles enunciated in Najdovski v Crnojlovic [2008] NSWCA 17.
Consistency of evidence
The insurer submits that Ms Kemp’s accounts exaggerate her impairments related to the accident and that she has other stressors.
Ms Kemp’s history to ECA psychologist Alicia Tyler is that when her second marriage broke down post-accident in 2018, her daughter also relocated to reside with her father in Queensland. Ms Tyler records that Ms Kemp says that these are her current main stressors.
Ms Kemp indicated at paragraph 19 of her earlier statement that when she moved to Sydney with her husband in 2016 her daughter remained in Queensland.
Ms Kemp’s GP responded to the roles suggested in the first report on earning capacity that Ms Kemp has capacity for a role that avoids repetitive movement of her right hand and thumb, while ECA’s Dr Mitchell acknowledged that the claimant would need to avoid tasks with sustained or forceful right hand gripping actions and frequent manual handling in the right arm.
The insurer submits that the roles ECA identified do not involve sustained or forceful right hand gripping actions or frequent manual handling.
The ECA’s Ms Tyler stated the presence of psychological symptoms did not preclude an ability to return to work and that it would benefit Ms Kemp to do so.
During questioning Ms Kemp in the assessment 16 September 2021, Ms Allen asked many questions on complaints about heart palpitations. Ms Kemp had complained that since the accident her heart palpitations had increased and sought to allege a nexus between the accident and that symptom.
Ms Allen drew Ms Kemp’s attention to clinical notes that showed Ms Kemp had made a number of complaints about heart palpitations prior to the accident. These were connected with life events such as the death of her father and flying to Fiji.
Ms Allen submits that this is relevant to credit because Ms Kemp relies on the palpitations as evidence of the impact of her post-traumatic stress disorder and being related to the accident, rather than being habitually an expression of Ms Kemp’s anxiety.
The insurer’s case also refers to observations that when Ms Kemp was interviewed for the ECA assessment, the phone interview with Ms Sessions and when she attended medical appointments that she was engaged and responsive. The insurer relies on that as evidence that Ms Kemp could engage in full time work.
Past economic loss
The parties agreed on a method for calculating past economic loss set out in the table below.
Future economic loss
It is agreed that Ms Kemp could no longer work as a registered nurse or assistant in nursing.
Residual earning capacity
Dr Assem for Ms Kemp, assessed the roles of a security guard, call centre operator and dental assistant as unsuitable, although these were suggested in the earlier ECA report. While the insurer concedes of the above jobs, only call centre operator could be appropriate. Dr Assem has not considered if the roles of medical receptionist or customer service representative could be appropriate.
Dr Assem also did not consider other possible alternate roles for Ms Kemp, including part-time roles.
The insurer submits that account does not need to be made of Ms Kemp’s condition deteriorating. While she asserted in her submissions that Dr Endrey-Walder supported her suffering early degenerative change in her thumb, the insurer cannot locate any such reference in the doctor’s report. Ms Kemp informs the doctor she considered her condition had deteriorated between the doctor’s assessments. Dr Endrey-Walder stated that radiological investigations had not identified evidence of arthritis at the right thumb.
The ECA report considers the nature of Ms Kemp’s thumb impairment and residual capacity, age, education, skills, work experience, locations and reasonably accessible labour market in the vicinity of her Sydney home and the Fraser Coast where she intended to move but for the accident. The earning capacity assessment identified call centre operator, medical receptionist and customer service representative as suitable roles, which could respectively earn $956, $882 and $1,164 net per week.
The insurer relies on Ms Kemp’s job diary to confirm that she felt she had the capacity to do such work, because she applied for various roles with similar or greater demands.
The ECA’s report ought to be preferred to Ms Kemp’s GP’s report on the suitability of roles, because it is comprehensive and considers the roles proposed in detail.
Assuming Ms Kemp has a residual earning capacity of $1,023 net, which is the midpoint between the highest and lowest net weekly earnings in the jobs that ECA identified, the insurer accepts there is a loss of $47 per week when compared to nursing at $1,070.
This provides a loss of $31,825 taking into account vicissitudes ($47 net per week x 796.6 x 85%) and allows a buffer of $10,000 to account for additional loss if Ms Kemp had opportunities to progress to a higher nursing role, offset by possibility of any progress in the roles the ECA identified as suitable.
Superannuation
The insurer allows for 12% of the net losses for the past and any award for the future.
Reasons
The parties agree that Ms Kemp suffered the following injuries as a consequence of the accident:
(a) injury to the right hand and wrist with dislocation of the carpometacarpal joint of the right thumb;
(b) injury to the superficial radial nerve, and
(c) soft tissue injury to the neck.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation especially sections 5D[6] and 5E.
[6] (1) A determination that negligence caused particular harm comprises the following elements:There is no dispute that the harm caused or claimed could fall outside the scope of the negligent person’s liability under section 5D(1)(b).
Section 5D(1)(a) requires me to ask if Ms Kemp has provided sufficient evidence to satisfy me that the harm claimed would not have occurred “but for” the negligence causing the accident.[7]
[7] Wallace v Kam [2013] HCA 19, [15].
Ms Kemp alleges that she has also suffered:
(a) right shoulder injury with rotator cuff pathology;
(b) lower back strain, and
(c) post-traumatic stress disorder with depressive symptoms.
Regarding the disputed physical injuries, the insurer has not provided evidence of an alternative cause or suggested that the subject incident was not sufficient to cause these injuries.
On Ms Kemp’s side there is evidence supporting the nexus between the negligence and the harm caused.
I accept Ms Kemp's right shoulder condition is related to the accident because of the evidence of Medical Assessor Bodel and Drs Assem and Endrey-Walder making diagnoses confirming the accident nexus.
This injury impacts Ms Kemp’s capacity to perform manual tasks, including nursing, which would require her to assist patients who require it.
I accept the allegation of lower back strain as attributable to the accident because of the early complaint in the claim form, subsequent complaints and because it was consistent with the mechanism of the accident. It has proved to be transitory with occasional flare ups.
The insurer’s evidence is that Ms Kemp’s psychological condition is an adjustment disorder rather than post-traumatic stress disorder and that it is not related to the accident.[8]
[8] Dr Graham Vickery report dated 8 September 2020.
I agree with Ms Kemp’s submissions that Dr Vickery does not engage with the mechanism of how the accident occurred and has no other evidence to support his findings.
I accept that her post-traumatic stress disorder and depressive symptoms are attributable to the accident because of the evidence she recounted regarding the circumstances of the accident, which was sufficient to induce post-traumatic stress disorder and the supportive reports from Dr Canaris and Medical Assessor Parmegiani.
Credit
I found Ms Kemp was consistent in her presentation and answered questions directly.
The insurer’s counsel questioned Ms Kemp extensively regarding pre-accident complaints of heart related anxiety symptoms.
The insurer was attempting to impeach Ms Kemp’s credit generally because she had connected her post-accident palpitations with the accident, when based on
Dr Moajjema’s clinical notes she had complained about palpitations prior to the accident. Although tachycardia was diagnosed pre accident it was uniformly linked to anxiety about life events such as her dying father or flying as well as the accident related conditions.The fact that post-accident Ms Kemp could still be complaining about palpitations is not surprising when she had experienced the accident, including the fears that her daughter would be injured, been forced to stop work completely for three months, returned to work with impaired capacity and lived with a painful right hand, post-traumatic stress disorder and depression.
The fact that Ms Kemp had experienced anxiety with palpitations before the accident does not derogate from the fact that she also experienced anxiety and post-traumatic stress disorder due to her experience in the accident. Before the accident she was a person who experienced anxiety as palpitations and would still work successfully in demanding roles, and afterwards she lost that capacity.
Past economic loss
In spite of initially being able to return to her work quite soon after the accident
Ms Kemp cannot return to work as a nursing assistant.Ms Kemp has sustained loss of economic capacity because she is unable to push or pull loads greater than 5kg and is therefore unable to continue to work in aged care.
At the time of the accident the agreed net earnings were $961 per week.
The parties reached the following agreement as to the method to calculate past economic loss[9]:
(a) in respect of the period 1 January 2018 to 30 June 2019, the claimant’s loss is equal to the weekly payments she received during that period, an amount of $16,661 including Fox v Wood damages;
(b) there is no claim in respect of the period 1 July 2019 until the claimant ceased work on 8 March 2020;
(c) in respect of the period 9 March 2020 to 30 June 2021 (68 weeks), the parties agree that the claimant’s loss was $500 net per week (while she planned to work part time in her husband’s restaurant). The agreed total for the period is accordingly $34,000 (also with Fox v Wood);
(d) in respect of the period 1 July 2021 to the date of the Member’s decision, if the Member determines the claimant would have completed her university studies and commenced work as a nurse, the parties agree that she would have earned (and would currently be earning) $1,060 net per week, and
(e) an additional allowance of 12% should be added to the total assessed in accordance with (a) to (d) above for past loss of superannuation earnings.
[9] Claimant’s post AC submissions dated 21 September 2021.
The insurer is to have credit for weekly payments paid under Division 3.3 of the MAI Act, totalling $61,207.40 paid via statutory benefits.
Ms Kemp enjoyed working in aged care and was successful. Her success in the field led her to explore completing studies to qualify as a registered nurse.
If she succeeded then initially she could have been earning $1,060 net per week and eventually as she achieved access to overtime, seniority and promotion a rounded figure of $1,500 net per week.
However, at the further assessment on 10 December 2021, it became apparent that Ms Kemp may need assistance in order to prepare herself for study in the Bachelor of Nursing.
This was conceded when Ms Kemp gave evidence and Ms Sessions also conceded this was a possibility.
It is probable that this could be an uncertain period, so I allow two additional semesters for Ms Kemp to undergo additional language training and to perform any bridging studies necessary to successfully complete the Bachelor of Nursing.
I allow 99 weeks at $500 from 9 March 2020 to 31 January 2022 for past economic loss.
I calculate the past economic loss at $66,161 plus superannuation at 12% to be $74,100($7,939).
Future economic loss
Due to the physical and psychological impacts of her accident related injuries
Ms Kemp cannot exercise her ambition to study and work as a registered nurse or continue as a nursing assistant.The evidence is that Ms Kemp’s success as a nursing assistant inspired her to consider tertiary study, and I accept that she had a genuine desire to test herself in that arena.
In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined in a case such as this is whether a claimant has sustained a loss or diminution in his or her earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard for the provisions of section 4.7 of the MAI Act[10].
[10] 4.7 Future economic loss—claimant’s prospects and adjustmentsMs Kemp’s progress to registered nurse would have meant completing at least three years of study to obtain a bachelor level nursing degree.
I was troubled after the initial assessment about Ms Kemp's chance of completing her ambition to be a nurse and whether becoming a registered nurse was the most likely future circumstance. It seemed that chance was marginal because she did not have a background of succeeding in tertiary study, apart from Certificate III in aged care and Certificate IV in medicine administration.
In addition, Ms Kemp’s rebuttal to the insurer’s case that Ms Kemp had residual earning capacity to work successfully in call centres, medical reception and customer service was to highlight her performance at the Penrith TAFE in the computer skills course.[11]
[11] AD8 submissions page 22.
Ms Kemp demonstrated this with examples in the written submissions that she had less than optimal literacy, numeracy and information and communications technology skills.
However, Ms Sessions’ report with Ms Price’s and Ms Moyo’s statements helped me to understand that people with the same background as Ms Kemp can successfully navigate the Bachelor of Nursing courses. The evidence of the assistance available as well as Ms Kemp’s resilience and motivation to work demonstrated with her concerted attempt to remain in full time work supports Ms Kemp’s case that if the accident had not occurred then it is most likely she could be working as a registered nurse in aged care.
The fourth paragraph of Ms Moyo’s statement dated 20 November 2021 says:
“When I worked with Rukhshana,..I know she wanted to study to become a registered nurse and I think she would have made an excellent registered nurse as well.”
Ms Price’s and Ms Moyo’s statements are of assistance because they demonstrate that Ms Kemp associates with motivated people who demonstrated that her proposed career path was realistic and achievable. It appears that her friends and potential colleagues trust her and that she impressed them.
Being able to work successfully in aged care prior to the accident demonstrated that she was a good team member and that she has lost this capacity due to the psychological injury. Combining this with the physical injury, where the pain is easily aggravated by the use of her right hand, the accident has reduced her competitiveness on the open labour market.
At worst, due to the fact that she may need some remedial assistance to improve her written responses I consider that Ms Kemp may have required up to two additional semesters to complete her studies successfully. That ought to be reflected in her past economic loss as a period of two additional semesters with a loss of $500 per week. That is because she would have been working part time in that period.
I am satisfied that due to Ms Kemp’s work ethic and motivation along with the assistance that the university could provide to ensure that she passed her exams that eventually she would have become a registered nurse.
As calculated above at paragraph 212 I allow a further 22 weeks with a loss of $500 per week, while completing the nursing studies and thereafter $1,500 net per week.
Residual earning capacity
Paraphrasing Garling J in[12] Ms Kemp was required to prove the loss for which compensation is claimed, see Todorovic v Waller (1981) 150 CLR 402 at 412-413. However, it is for the insurer to prove that Ms Kemp has a residual earning capacity and provide evidence of Ms Kemp is capable of doing and what jobs are open to such a person.[13]
[12] Kerney v Mead & Anor [2011] NSWSC 518.
[13] Luntz, Assessment of Damages for Personal Injury and Death (5th ed) at [241 [1.11.26]
Once the loss is established then the insurer bears an evidential onus to establish that a claimant has a residual earning capacity that she is practically capable (rather than theoretically capable) of exercising. That is to say, a practical assessment is required of the likelihood of Ms Kemp obtaining and keeping a real job accessible to her considering she is disabled by pain, restriction and impairment: see generally Mead v Kerney [2012] NSWCA 215 and South Western Sydney Local Health District v Sorbello [2017] NSWCA 201.
Ms Kemp’s history prior to the accident demonstrated a strong work ethic.
Ms Kemp worked in service industries such as restaurants, real estate agents and other businesses dealing with customers. Sometimes she held more than one job at a time.
Ms Kemp enjoyed working in aged care including pitching in to help colleagues, which shows that she could work in teams, she was adept at caring for the aged and had no trouble managing medication.
Ms Kemp enjoyed doing aged care enough that she was exploring becoming a registered nurse, which required formal studies. She was also prepared to assist her husband to set up and work in a restaurant in Hervey Bay.
Ms Kemp planned to share care with the father of her daughter so that she would be able to assist her husband.
Ms Kemp’s husband’s plans to start a restaurant did not proceed due to his injuries. However, if the restaurant could not have provided enough work then Ms Kemp would have worked part-time in aged care while completing her studies.
Ms Kemp's statement and evidence is that since the accident she has limited capacity to do alternate duties such as those suggested in the vocational assessment reports. Since the accident she made a large number of job applications which did not lead to interviews.
The ECA report finds that with the restrictions that Dr Mitchell suggests that in the ECA experts’ collective opinion Ms Kemp’s is fit psychologically and functionally to work at the jobs identified. Further the report opines that her prospects, if she presents herself for employment in those roles, will lead to employment making about the same or a little less than her proposed nursing role.
The report does not deal with the following:
(a) why Ms Kemp was unsuccessful in obtaining alternative work in spite of the 37 applications she had made and strategies to address these rejections;
(b) how Ms Kemp would deal with seeking concessions from potential employers to make up for her functional and psychological disabilities;
(c) it does not deal with how she would manage her functional and psychological conditions if her work required her to go outside the restrictions in lifting and carrying that Dr Mitchell says would be necessary to remain pain free. Also, it does not address how she would manage to retain full-time employment if those conditions were inflamed;
(d) it does not deal with strategies for how Ms Kemp would fare when competing with able bodied applicants in the open labour market for
full-time work, although at page 29 of the report it is acknowledged that
Ms Kemp’s condition may mean that “the transferable skills listed for the purposes of identifying suitable work options… may be more limited than indicated by (her) employment, education, work experience and personal background and vocational interests”;(e) the report is based on interviews and report which predate Medical Assessor Parmegiani’s Medical Assessment Certificate and his comment that Ms Kemp would have to be pain free in order to remain psychologically well and could manage no more than 20 hours per week. It also does not address Professor Cumming’s comments regarding her fitness to work;
(f) how attentive and engaged behaviour during relatively brief engagements with experts during examinations and interviews would translate to full time roles involving engagement with the public in the context of Ms Kemp’s conditions, and
(g) it only addresses Ms Kemp’s capacity for full-time work.
The ECA report’s assessment that Ms Kemp demonstrates resilience carries some weight. Partnered with the remark noted in her GP’s clinical notes prior to the accident that she was motivated to work, and her work history establishes that Ms Kemp has a genuine work ethic and that she made an authentic attempt to return to work after the accident.
That authenticity also assists with accepting Ms Kemp’s evidence about her view that after having attempted to return to work that she will be unable to concentrate sufficiently or remain pain free enough to obtain and keep a full time job.
I am not satisfied that the insurer has discharged the onus that Ms Kemp could be employable on a sustained full time basis in call centres, medical centres reception or customer service representative because:
(a) the broad consensus of medical evidence supports an assessment that Ms Kemp is impaired psychologically and physically and that each impacts on the other;
(b) the continuing pain wears down Ms Kemp emotionally and reduces her capacity to deal with colleagues and customers. While she was attentive during relatively brief encounters this would not necessarily translate to the engagement required for full time work;
(c) to remain employable potential employers would need to make allowance for her including additional time off work, with limited capacity to perform physical tasks, and
(d) ability to work full-time consistently relies on Ms Kemp's psychiatric and physical conditions aligning enough so that she feels well enough to apply herself to her task.
Based on medical evidence Ms Kemp would still have to be pain-free having time to recover to do suitable part-time work.
Suitable part-time work would have to be available. Ms Kemp would still be limited because her capacity to accept 20 hours per week would depend on that work being available and her being well enough to accept it.
I am satisfied though that there is a small chance that Ms Kemp could find suitable
part-time work for some of the time over the next 27 years because:(a) Ms Kemp has demonstrated she enjoyed working for its own sake;
(b) she states that she would volunteer to fill her days, and this could lead to paid work;
(c) she has demonstrated resilience and a can-do attitude, and
(d) with the passing of time her psychological condition could ease when suitable jobs may be available. The longevity of any role would depend on whether either of her conditions are aggravated.
I am satisfied that this is a favourable vicissitude and the percentage in the discount will be increased 10% from the usual 15%.
Superannuation
Superannuation will be applied at the agreed rate to the past amount.
Superannuation will be assessed at 14.34% on the total amount of damages for future loss of earning capacity.
Loss of opportunity
It is agreed that Ms Kemp has lost the opportunity to obtain a Bachelor of Nursing and work as a registered nurse.
I find due to the work ethic Ms Kemp had demonstrated prior to the accident and because she would have passed the Bachelor of Nursing that she would have had the opportunity to work overtime, progress in seniority and be promoted on merit.
Ms Kemp has claimed a general loss of $1,500 per week net from the time she would have qualified as a registered nurse for the next 26 years and six months years until she retires, although in the section 6.25 particulars the range is up to $1,800 net per week from age 57. The figure claimed represents a middle path with overtime and seniority that would have been earned.
I calculate her future economic loss as follows:
(a) $500 x 22 weeks = $11,000;
(b) $1,500 x 776(i.e., 26 years and six months)[14]= $1,164,000 x 25% vicissitudes at $873,000, and
(c) $11,000 + $873,000 = $884,000 x 1.1434 = $1,010,766
Assessment of damages summary
[14] Luntz 5th edition, Appendix Table 2 page 1131.
Under sub-section 7.36 (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 | $66,161 |
| Past superannuation | $7,939 |
| Future loss of earnings | $884,000 |
| Future loss of superannuation | $126,766 |
| Interest | Nil |
| Total of economic losses | $1,084,866 |
| Total damages assessed | $1,084,866 |
Ms Kemp’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments at $61,207.40.
Costs and disbursements
The claimant provided submissions dated 8 February 2022 on costs and disbursements that the insurer agrees with at $79,318.89, except for a discrepancy between the claimant’s submissions and the damages and costs calculator in relation to the second assessment conferences costs.
Mr Masselos, in his submissions in reply dated 14 February 2022, addresses the discrepancy.
Mr Masselos explains that the schedule separates the appearance fees for each of the two hearing dates – i.e., $3,849 for the first date and $963 for the second date. In effect in respect of the first date, the flat fee of $3,207 covers the first two hours. The additional two hours are chargeable at $321 per hour, giving a total of $3,849. In respect of the second date, the three hours at $321 per hour gives a total of $963. The total for both days is accordingly: $3,849 plus $963 equals $4,812 ex GST.
The spreadsheet does not separate the appearance fees between the two hearing dates. Rather it separates a flat fee for the first two hours from the additional hours. The first figure is the flat fee of $3,207; and the second figure of $1,605 is comprised of the two additional hours for the first day and three hours for the second day ($321 per hour). These figures add up the same: $3,207 plus $1,605 equals $4,812 ex GST.
I agree with that reasoning and confirm that costs and disbursements should be allowed at $79,318.89.
I assess Ms Kemp's legal costs in accordance with Part 8 of the MAI Act and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet.
Conclusion
On the issue of liability for the claim, the insurer admits it 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 Motor Accident Injuries Act 2017 (the MAI Act), I specify the amount of damages for this claim as $1,084,866.
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
$79,318.89 inclusive of GST.Attached to this certificate are reasons for my assessment.
Legislation
1.263. In making my decision I have considered the following legislation, authorities and publications:
· the MAI Act
· Personal Injury Commission Rules
· Malec v JC Hutton (1990) 169 CLR per Deane, Gaudron and McHugh JJ at [7]
· New South Wales v Moss (2000) 54 NSWLR per Heyden, JA at [70]
· Husher v Husher [1999] HCA 47
· Medlin v State Government Insurance Commission (1995) 182 CLR
· Wallace v Kam [2013] HCA 19, [15]
· Kerney v Mead & Anor [2011] NSWSC 518
· Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis
Member Terence O'Riain
Personal Injury Commission
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(cf s 126 MACA)
(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.
(2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
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