McAllister v AAI Limited t/as GIO
[2022] NSWPIC 638
•14 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | McAllister v AAI Limited t/as GIO [2022] NSWPIC 638 |
| Claimant: | Robyn McAllister |
| insurer: | AAI Limited trading as GIO |
| Member: | Terence O'Riain |
| DATE OF DECISION: | 14 November 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment; damages claim; liability wholly admitted; injury; pillion passenger; motorcycle; combination of psychological and functional disability; non-economic loss; past loss of earnings; future loss of earning capacity; earning capacity assessment; loss of opportunity; loss of opportunity to run Reiki healing business; theoretical earning capacity where no reasonable prospect of obtaining work to utilise it; credit; Jones v Dunkel discussed; request to make adverse inference because claimant did not provide evidence regarding treatment after insurer’s doctor assessed post-traumatic stress disorder; Mead v Kerney considered; residual earning capacity; most likely future circumstances; evidence; witness; interest; legal costs; Personal Injury Commission Rules 2021; Malec v JC Hutton, Husher v Husher and Wallace v Kam followed; Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis considered; assessment of damages for personal injury and death; Held – 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. |
| determinations made: | CERTIFICATE OF DETERMINATION Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Damages assessment made in accordance with s 7.36 of the Act 1. 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 $988,310. 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 $71,633.10 inclusive of GST. |
REASONS
Introduction
On 5 July 2022, I assessed Robyn McAllister’s (the claimant) damages arising from the accident dated 4 February 2018. Andrew Christopoulos instructed Jennifer Hillier of counsel for the claimant, while Brooke Hill instructed John Guihot of counsel for the insurer.
Jurisdiction
The rules of evidence do not apply to this assessment. I may look into any matter relevant to the issues in dispute in such a 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 cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (2020 Act).
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates this application “pre-establishment proceedings”, and cl 14D empowers me to determine those proceedings.
Because of the date of the accident, cl 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines continue to apply.
The assessment was conducted on 5 July 2022 via MS Teams.
Background
On 4 February 2018, Ms McAllister was a pillion passenger on her partner Stephen Salafia’s Harley Davidson motorcycle riding through central eastern Riverina in southern New South Wales.
It was a scorching day at about 2.20 pm, and at the time, they were travelling on a sealed road in western New South Wales from Narrandera to an antique shop in Ganmain.
They were riding on the Canola Way when they entered the hamlet of Matong. A dog ran out onto the road from a house. Mr Salafia took evasive action to avoid colliding with the dog and lost control of the motorcycle.
The motorcycle’s motion threw Ms McAllister to the ground. She landed heavily in a sitting position on her tailbone and left-hand side. The hospital she attended later assessed her injuries to be:
(a) injury to the back with compression fractures at T9 and T11, and L1;
(b) friction burn in the region of the left hip;
(c) infection in that friction burn;
(d) injury to both shoulders, the right worse than the left with subacromial impingement and bursitis;
(e) psychological injuries which were later diagnosed as including post-traumatic stress disorder;
(f) soft tissue injury to the left wrist, and
(g) soft tissue neck injury.
As Ms McAllister had a spinal injury, she could not be moved and had to lie on the hot bitumen for about 40 minutes until the ambulance arrived.
Matong’s inhabitants attempted to protect her by holding umbrellas over her and pouring on her water to keep her cool. No one moved her until the police and the ambulance attended.
An ambulance took Ms McAllister to Wagga Wagga Base Hospital. The hospital admitted her to the High Dependency Unit. The hospital investigated, and imaging found multiple fractures in the thoracic spine and the L1 vertebral body and a deep friction burn over the left hip.
The hip injury became infected, which required surgical debridement and antibiotic treatment. Bursitis developed in both shoulders; the right shoulder was a little worse than the left.
Ms McAllister was an inpatient for about a fortnight and was immobilised in a brace when the hospital discharged her.
She was readmitted briefly at Narrandera Hospital soon after to treat an accident-related infection with intravenous antibiotics.
At the time of the accident, Ms McAllister lived in Narrandera in the Riverina in southwest New South Wales. She moved there in December 2017 from the Canberra region with her partner to access cheaper housing and begin a new life.
She had bought a home in the town and was mortgage free after selling her share in a Queanbeyan home, which she had renovated with her daughter.
Ms McAllister’s partner originated from the Narrandera region. He had obtained work with a local road-building authority.
Ms McAllister is a mother of five children and a grandmother. When her marriage to her children’s father ended in 2010, she was responsible for most of the childcare, including working two jobs, as her children’s father was reluctant to provide financial support.
Before moving to Narrandera, Ms McAllister had worked in administrative roles and as a cleaner.
Ms McAllister was not working at the time of the accident but says she had begun to look for work.
She also had undergone training in Reiki Spiritual Healing and anticipated setting up a healing business in the town
Ms McAllister served her claim for common law damages on 20 February 2020 (A2), and the insurer admitted breach of duty of care in a s 6.20 notice.
Issues to be decided
The insurer has conceded Ms McAllister’s entitlement to non-economic loss and entitlement to the other heads of damage claimed, namely past and future loss of earnings and earning capacity under s 4.5(1)(a) of the MAI Act and damages under
s 4.5(1)(d).The issues to be decided in this case are the non–economic loss damages with quantum for past loss and ongoing impairment to her earning capacity under Division 4.2 of the MAI Act, which is agreed will be productive of economic loss.
To assess the economic loss, I must consider:
(a) whether Ms McAllister can establish that the most likely circumstances around the time of the accident and subsequently would be that she would find work as an administrative assistant and/or a cleaner and the amount of her loss;
(b) whether Ms McAllister can prove she would have eventually started and grown her Reiki healing business to replace her income as an employee and whether it could have increased beyond that level;
(c) the extent of Ms McAllister’s residual earning capacity, i.e., whether the insurer has satisfied me that Ms McAllister has residual earning capacity in administrative work and Reiki healing to offset her loss of capacity, and
(d) whether I can calculate Ms McAllister’s loss at a weekly rate or whether a compensatory buffer would be appropriate.
Ms McAllister was 53 years old on the assessment date, with a life expectancy of 34 years.
It was 230 weeks since the accident when I assessed this claim.
Ms McAllister does not claim s 4.5(1)(d) MAI Act damages for income tax paid on any statutory benefits. I can assess past superannuation losses at 9% of her gross or 11% of her net earnings.[1]
[1] Najdovski v Cinojlovic (2008) 72 NSWLR 728 the court, by majority, confirmed the adopted practice of awarding 9% if the calculation is based on a gross earnings figure or 11% if calculated on earnings, net of tax.
The parties disagree on the amount of lost earnings post-accident to assessment.
Ms McAllister estimates that her past economic loss was $1,050 gross per week and is continuing. The insurer disputes that amount.
Both parties agree she was not earning at the time of the accident and has not returned to work since that date.
The parties agree that the statutory retirement age is 67, but there is a dispute about whether Ms McAllister was actually retired at the time of the accident. Currently,
Ms McAllister is 14 years away from statutory retirement.The superannuation on the future lost earnings will be calculated at 14%.
There is disagreement about what vicissitudes discount should be applied. The insurer relies on Ms McAllister’s past complaints and treatments, which were found in her treating doctors’ clinical notes, to justify 30% as the discount.
Medical evidence
Dr James Bodel provided several reports for Ms McAllister's lawyers, the first dated
7 April 2019 (A3), reports:“… uncomfortable when sitting.. rises slowly…significant increased mid-thoracic kyphosis…compensatory lordosis in the lumbosacral region and …cervical region..tenderness..base of the neck on the right hand… reduced range of neck flexion, extension and rotation in all directions…restricted range…in both shoulders…impingement in the right shoulder but not the left…no clinical sign of radiculopathy in either upper limb…tenderness at the lumbosacral junction and in the thoracolumbar region...no objective sign of a sensory loss in the lower limbs…long term prognosis remains guarded because of the widespread pathology…This lady is not fit to return to her pre-injury work. Her business in Narrandera failed. She may be able to return to the office based activities that she has done in the past. She would struggle to do full time work but should be able to contemplate at least 20 hours work per week and with improved physical fitness levels may be able to upgrade to 30 hours a week in permanently modified duties…also note mention in the documentation that has been provided that in the local doctor's continuation notes on 22 November 2016, there has been mention of a ‘left frozen shoulder receiving physiotherapy’…The last mention of the frozen shoulder was in December 2016, and it would appear therefore that she may well have been asymptomatic in the shoulder at the time of the motorcycle accident.”
Dr Bodel examined Ms McAllister again on 18 September 2020[2] where it was noted:
“…she (began) to be weaned out of the brace at about the three month mark…her mother travelled to live with her for a period of about six months…later was able to mobilise in a heated pool, with brace coming off at about six months…moved back to live in Canberra in August 2018…symptoms have remained much the same…has pain in the back and in both shoulders and has developed adhesive capsulitis particularly in the right shoulder…extensive investigations showing that she has severe osteoporosis…takes Palexia 150 mg Slow Release tablets as amitriptyline at night and Endone on an as needs basis…Nurofen and Panadol Rapid…used to enjoy participation:…walking and bushwalking…fishing..swimming…Pilates classes…uncomfortable again throughout the interview and rises slowly…no significant wasting in either thigh or calf…was still in significant pain and hurt that although her condition was unlikely to alter greatly over time…struggling with day-to-day activities because of the pain…the spinal injuries were associated with chronic pain that would persist indefinitely.”
[2] A4 claimant’s bundle.
The final level of whole person impairment was calculated at 38% using the Combined Values Charts on page 322 of AMA 4.
Ms McAllister also saw Dr Garth Eaton. He produced a report dated 24 March 2019. (A5). Dr Eaton is an occupational physician. Dr Eaton is not an authorised practitioner under the Motor Accident Guidelines 2021, and the insurer submits the report is inadmissible under s.7.52 of the MAI Act and cl 8.4 of the Motor Accident Guidelines 2021. The claimant’s lawyers conceded the insurer was correct and did not press to include the report in my consideration. I will decline to do so.
Dr Stephen Buckley—consultant physician in rehabilitation medicine—examined Ms McAllister to produce a report dated 11 December 2020[3]. It noted:
“independent in personal care but had difficulty donning her shoes and socks and requires assistance for that activity…no capacity for any domestic chores…taking considerable amounts of pain medication including Endone….no chance of doing heavy manual work in the future. In the normal course of events her injuries would be compatible with light manual work, for example in her area of spiritual healing or administrative duties such as the clerical work she had done in the past…could not return to those duties though because of her psychological status.”
[3] A6 claimant’s bundle.
Dr Buckley calculated Ms McAllister's whole person impairment as equalling 27%. Dr Buckley opined that when he assessed her shoulder range of movement was much greater than when Dr Bodel examined her.
Encompass, through occupational therapist Marie Stephens provided an occupational therapist (OT) report dated 25 November 2020 regarding Ms McAllister's need for care[4]. The Encompass report is based on a visit to Ms McAllister’s home where the OT interviewed Ms McAllister and her partner.
[4] A8 claimant’s bundle.
The insurer objects to this report referring in particular to how the report was prepared to assess her entitlement to care. Care is not a head of damage under the MAI Act. The writer is also not an authorised report writer under cl 8.4.
I find the OT report is relevant to assessing non–economic loss because it is based on an in-home assessment. Ms McAllister was able to demonstrate and describe how the accident-related injuries impacted her amenities of life, the pain levels she experiences and loss of enjoyment of life from not being able to do certain activities like gardening, exercise and family activities. The photographs are useful to illustrate the adverse changes.
The loss of autonomy and functioning in the home with the impact on her intimate relationships is relevant to assessing the loss of amenities and does not apply only to assessing damages for care. Accordingly, I will consider this report in my findings only as it relates to the non-economic loss.
Ms McAllister, at the time, reported constant neck aches, which were present when she woke up. She reports her neck pain "seizes and travels to her shoulders". Taking pain medication eases the pain slightly, and she performs daily neck and shoulder shrugging exercises. Some days are worse than others.
She describes the pain as being on a scale between 3 or 4 out of 10 after she takes medication and 9 or 10 out of 10 at its worst. On bad days she goes to bed. Her neck condition restricts her ability to lift heavy weights and perform her daily activities.
She also has headaches and migraines. Sometimes these are frequent, but with treatment such as a neck massage and rest, she may not experience a headache for several weeks. She has pain in her back and buttocks. The pain in the upper part of her spine can be worse on the upper right side, while pain in her buttocks feels like pins and needles after prolonged sitting. She feels moderate difficulty in her lower back function.
The report notes that Ms McAllister's movements were stiff when mobilising and changing positions but did not demonstrate overt pain behaviours – I also observed that she was not overtly demonstrative during the assessment conference.
Ms McAllister told the OT that the pain in her right and left shoulders vary, with the more severe pain in the right shoulder. Pain also affects her knees and ankles, which can be too sore to bend some days. She has suffered reduced flexion and abduction in her shoulders.
Ms McAllister's presentation became teary when talking about the accident's impact on her relationship with her partner.
The OT noted that Ms McAllister’s walking speed, endurance, and balance are adversely impacted, making her vulnerable to an increased risk of falls.
The OT described observations of Ms McAllister's capacity for movement, which appeared diminished due to the accident. This diminished capacity impacts her ability to interact with her grandchildren.
Ms McAllister reports limited capacity, including driving a car and relies on friends to transport her, except for short distances.
Regarding her psychological functioning Dr Graham George (psychiatrist) assessed Ms McAllister for the insurer and produced two reports dated 31 May 2020 and
27 July 2020[5]. He made a diagnosis of chronic post-traumatic stress disorder and persistent depressive disorder secondary to chronic physical pain. The chronic pain exacerbates her anxiety and depression. She felt sad and socially withdrawn. She is isolated from her family and friends.[5] R3 & R4 insurer’s bundle.
Dr George records chronic pain mitigates her enjoyment of social life and relationship with her family and friends. He notes her emotional and sex life with her partner had become tricky and more like a friendship since the accident. The couple had been forced to live apart because she needed her mother’s care to assist with recuperation. Her mother lives in Nowra, which is about six hours’ drive away from Narrandera.
Eventually, Ms McAllister sold the home she had bought in Narrandera to move back to the Canberra region to access health care and family assistance.
She requires psychiatric and pain mitigation medication and “battles through pain on a daily basis and as such has had to cope with intrusive symptoms of PTSD, which interfere with her attention, concentration, and short term memory at times”.
She endorsed experiencing the following symptoms “‘often’… ‘I couldn’t seem to experience any positive feeling at all’… ‘I felt down-hearted and blue’… ‘I was worried about situations in which I might panic and make a fool of myself’… ‘I felt I wasn’t worth much as a person’”.
Jude King, a pain counsellor at Capital Pain & Rehabilitation Clinic in the ACT, produced a report dated 31 July 2020 (A9). It sets out the history of Ms McAllister's treatment in respect of her pain condition and how the Covid 19 pandemic impacted her ability to attend treatment that could mitigate her pain syndrome and improve her physical and psychological functioning.
Dr Brian English, clinical psychologist, began to treat Ms McAllister at the Capital Pain & Rehabilitation Clinic at Deakin ACT. The claimant does not rely on any material or report from Dr English.
I note Dr Peter Mew’s (her treating neurologist) letter to her general practitioner dated 13 April 2018. He saw her again in August 2018 and was concerned about her posture; this arose from reported symptoms, including various paraesthesia, weakness in the legs with upper and lower back pain. At that time, she was increasing her medication. Dr Mews saw her again on 24 January 2019 and noted his concern about her posture, which would predispose her to thoracic, neck and head pains. He encouraged her to pursue her physical therapy.[6]
[6] A10, A11, A13 claimant’s bundle.
During the assessment, Ms McAllister said that Dr Mews might want to treat her for spinal cysts. Both parties agreed the condition would not justify delaying my assessment even if treated.
Dr Richard Powell examined Ms McAllister for the insurer and produced a report dated 20 March 2020[7]. He comments Ms McAllister was "the most compliant and cooperative patient throughout the taking of the history and examination. There was no suggestion of overreaction or exaggeration".
[7] R2 insurer’s bundle.
He observed her movements were stiff between sitting, standing and prone positions.
He opined Ms McAllister is not fit to enter the open labour market without restriction. "Employment opportunities are likely to be limited" as she cannot tolerate prolonged standing, walking or repetitive bending, lifting or twisting manoeuvres.
Robyn McAllister’s statement dated 12 October 2021
Ms McAllister left Queanbeyan for Narrandera in December 2017, three months before the accident. She returned to Canberra permanently after the accident in
August 2018.Before the accident, she was generally happy and fit. She socialised with her friends and family.
She walked, swam, fished, and played social tennis, yoga and Pilates. Her body was flexible, so she could walk and run without any problems.
Ms McAllister managed her asthma and hay fever with medication.
She has never had any compensation claims.
Pre-accident, she had the following procedures and medical complaints:
(a) gallbladder removal in 2016;
(b) C-section deliveries in 2005 and 1998;
(c) treatment for a fall on 13 June 2017 with cervical pain, and
(d) frozen left shoulder in 2016 but had fully recovered at the date of the accident.
As a result of the accident, Ms McAllister suffers the following disabilities:
(a) chronic pain;
(b) nerve pain;
(c) left hip hypersensitivity;
(d) lower back pain;
(e) spinal pain;
(f) chest pain;
(g) neck pain;
(h) right shoulder has partially frozen;
(i) shoulder pain (worse on the right with pinching pain);
(j) right buttock pain;
(k) anxiety;
(l) stress;
(m) frustration;
(n) emotional lability;
(o) leg parathesis from sitting or lying in certain positions;
(p) headache;
(q) constipation;
(r) weakness;
(s) reduce movement in the spine, back and the right shoulder;
(t) intimacy causes pain, which is upsetting and impacts on Ms McAllister’s self-worth;
(u) posture difficulties;
(v) post-traumatic stress disorder;
(w) depression;
(x) difficulty sleeping—going to sleep and staying asleep;
(y) tiredness and lethargy;
(z) pins and needles;
(aa) numbness in both legs;
(bb) migraines and headaches with nausea;
(cc) inability to stand on toes;
(dd) inability to heel walk;
(ee) difficulty bending;
(ff) difficulty squatting;
(gg) reduced sitting, standing and walking tolerance, and
(hh) need to avoid rough ground when walking.
Ms McAllister has had all available and appropriate treatments and can only build her strength and manage pain.
To have an Endone-free day she showers, dresses and then rests — I note that Endone has unwelcome side effects such as constipation, and that is listed as one of her disabilities.
Her panic and anxiety attacks can be debilitating and happen when she sees big dogs or motorcycles.
She suffers from confusion and forgetfulness.
She can now dress with difficulty, particularly putting on and taking off jumpers and balancing on one leg.
She has shoulder pain after showering and washing her hair is painful if she raises her arms above head height.
She can drive an automatic car limited to 45 minutes before she develops pain. She takes frequent breaks.
It is painful to park the car, as turning her body and the wheel is painful. After one hour of driving, she suffers coccyx pain and numbness in her legs. She feels anxious when driving.
Sitting is difficult beyond 30 minutes. Standing is difficult because she has a crushing pain in her sternum.
Walking is limited to 10 to 15 minutes on flat ground. Walking more than that aggravates pain in the ribs, sternum and right side of the back. She also has burning pain in the upper back, which radiates to her chest.
Sleep is disturbed due to pain and anxiety. She requires medication but still has trouble getting comfortable in bed, achieving sleep and staying asleep.
She suffers from headaches and migraines with nausea. Her neck feels stiff and heavy, with burning pain in the lower back and numbness in the legs.
Since the accident, she has not been able to do the following:
(a) swim;
(b) fish;
(c) yoga;
(d) Pilates, and
(e) ride motorbikes.
She feels sad about her life-changing following the accident, which results in anxiety, and emotional lability. She has lost her enthusiasm and happiness. She has reduced her socialising with friends and feels sad because the injuries limit what she can do with her children and grandchildren.
She has not had surgery. Her treatment since the accident has been conservative and extensive. The treatment is continuing. She takes five different pain medications.
She was also on antidepressants, which she recently stopped taking.
Before the accident, she was independent in personal tasks, household chores and gardening.
Before the accident, she could renovate a house with her daughter.
Since the accident, she has required a high level of intervention for personal care, household chores, gardening and home maintenance.
Ms McAllister has been attempting to mitigate her pain and suffering and reduce her reliance on drugs by participating in the Arthritis ACT programs since the insurer cut her treatment funding.
She can do some parts of meal preparation and occasionally cook an easy meal.
This lady needs help with shopping and transport to medical appointments.
Ms McAllister also said that she could still do with psychological treatment for her symptoms, but the insurer is no longer paying, so she cannot attend.
Economic loss
Ms McAllister left school at 15 in 1984 after finishing year 10. She then did one year of secretarial college, studying typing and word processing.
She joined the ACT public service for four years doing administrative work until 1990, when she started her family. As the children were small, she left the public service and worked part-time. She worked part-time at ANU for four years doing administrative work, then worked part-time at the Bungendore newsagency.
From 2006 until mid-2016, she worked part-time for Stihl – a tool company – as an accounts manager. Her salary for that final year was $31,000 gross, working part-time for about 25 hours per week. She also did some cleaning work.
Between July 2016 and December 2017, she says she was cleaning for cash for $200 per week and renovating her home in Queanbeyan. She was able to do the cleaning, which was heavy physical work.
Ms McAllister planned to sell the home in Queanbeyan and purchase a home in Narrandera. She planned to undertake paid employment there and use some of the money to buy a shop in the town to commence self-employment as a Reiki healer. She would also offer Pilates, meditation, massage, and spiritual healing for mind and body.
The aim was to move into a full-time self-employed role and purchase the premises.
Ms McAllister was able to purchase a large two-story home in Narrandera.
Her partner obtained work on the roads and was sometimes away during the week with the crew.
She had intended to obtain paid employment as a cleaner or in administrative work after Christmas 2017 while she built up her Reiki business.
Loss of opportunity to start business
Ms McAllister has studied Reiki for 20 years.
It is hands-on healing using energy from the healer to encourage emotional or physical healing — I note that it is an established alternative healing modality.
Ms McAllister says she intended to turn what had been her hobby into her career.
Until 2016 she had been a hands-on mother focused on raising her children.
Ms McAllister completed a Masters in Reiki in 2017 from an institution in that field, which would have enabled her to obtain insurance and run a business in that modality.
When she moved to Narrandera, she planned to offer treatments at home until she had built up her clientele so she could afford to run and maintain a shop.
She planned to build the business by running women’s groups (around her paid employment), where she would charge $15 per client per hourly session. She would also offer private hourly sessions at home at the cost of $60 per session. She anticipated that the groups would produce private clients.
She intended to run the groups at home initially to reduce overheads.
At the time of the accident, she had applied for administrative work and was willing to take cleaning work.
She expected to obtain work with the local council, as she said she had applied for work via email. This email was not produced as part of the evidence bundle but was made available late on the day of this assessment. It is not in the portal, but
Mr Guihot’s questioning for the insurer confirms Ms McAllister wrote to the Narrandera council on 8 November 2017 saying she would be available for work from mid-December 2017, and that her skill set included finance, administration, clerical, secretarial and customer service and reception. The council were not advertising a position. Ms McAllister’s contact was a general enquiry about any casual, part-time, full-time, temporary or short-term job.Due to no childcare obligations, she was free to take on full-time work and fit in starting her Reiki business.
Her evidence bundle contained documents attesting to qualifications achieved between 1985 and 1995, including her skill with an electric typewriter and cocktail mixing, as well as her Reiki healing training, which was more recent.
Before the accident, she had had contract work via a labour-hire group with the
New South Wales Teachers Federation. She had two short pre-accident placements with the Teachers Federation, which she performed satisfactorily.Following the accident, she was unable to work due to her disabilities. She says she was offered 16 days’ work with the New South Wales Teachers Federation after the accident, which would have earned $3,306 if she could have accepted it.
She anticipated that she would have made $1,000 a week gross from employed work in 2018, and initially $270 gross per week for the first three months of her Reiki business, with income from the Reiki increasing.
Following the accident, she has been unable to pursue a Reiki business, cleaning, or administrative work due to her disabilities. Being unable to work forced her to sell her Narrandera home.
Insurer questioning Ms McAllister
Mr Guihot, for the insurer, questioned Ms McAllister extensively on how much she earned in the past, her attempts to return to work, her pre-accident health, her loss of capacity to start and run a Reiki healing business, whether she intended to seek work in the future, and as to credit.
Mr Guihot, for the insurer, questioned Ms McAllister closely regarding her employment as a cleaner. Ms McAllister alleges that she earned $200 per week for about 18 months of housecleaning.
Mr Guihot pointed out Ms McAllister did not include this income in her income tax return for that period, which she admitted. He put to her that she had deliberately lied to the tax office to obtain financial advantage. Ms McAllister disagreed with that.
He questioned her about her résumé, which was created after the accident, and it was apparent she had included some unpaid work to improve how it looked.
He put to her that when she saw Dr George for the insurer she had not told the truth when she told him that she had been working with Stihl up to a month before the accident.
Mr Guihot said she had not worked for Stihl since 2016, and she told the doctor otherwise, so he'd think she was functioning well until the time of the accident. She disagreed with that too.
Mr Guihot said to Ms McAllister that although she alleges she could earn $1,050 gross per week before the accident, she had only earned minimal sums in the financial years before the accident.
Mr Guihot asked more questions regarding Ms McAllister's presentation to Drs Buckley and Bodel. He pointed out she did not refer to her pre-accident problems with her left shoulder, which required several clinical attendances and an injection.
Mr Guihot said that Ms McAllister had left that out to create a stronger contrast between her pre-accident health to her current state. She was also doing the same regarding withholding information from the doctors about her neck sprain and stomach pains in 2017. Ms McAllister disagreed with that.
Mr Guihot asked about Dr English’s treatment and whether that was mitigating her post-traumatic stress disorder symptoms.
Mr Guihot also asked Ms McAllister about steps she had taken to find work in Narrandera before the accident, where she moved in December 2017. He said she had not made any attempts to find work, and she was saying that because she wanted to boost her claim.
He also told her she had told people that she had moved to Narrandera for a tree change; she did not intend to seek work but follow Reiki healing as a hobby, not a business.
Mr Guihot said she had not discussed her tree change plans with any of the doctors who had examined her for the claim. She disagreed with all of those propositions.
Mr Guihot also questioned Ms McAllister regarding her plans to start a Reiki healing business in Narrandera. Ms McAllister provided evidence that she had been studying Reiki since 2007 and had two qualifications.[8]
[8] A20 claimant’s bundle.
Mr Guihot said if she authentically intended to start a Reiki healing business, she would have done so before she moved to Narrandera. He made that proposal because, according to her tax returns, she was earning very little and occasionally working so she had the opportunity to start the business.
Ms McAllister said she was still very busy with childcare. Mr Guihot pressed that she could have launched her business idea part-time. He also pressed that at the time of the accident, when she had been in the town for almost three months, she had done nothing to begin her Reiki healing business.
Ms McAllister said she was still unpacking when the accident happened and that her son had been staying with her for the Christmas holidays. Mr Keogh submitted that
Ms McAllister was not serious about starting a Reiki healing business because she had not researched the town's population or attempted to set her business up in an area with a more significant population, such as the ACT. She admitted she did not know the population.
Documents considered
I have considered the documents provided in the application and the reply, and any further information provided by the parties.
Submissions
Claimant’s submissions
Ms McAllister claims her non-economic loss damages ought to be $450,000.
Past economic loss
Following the accident, Ms McAllister’s treatment requirements were significant. She spent weeks in the hospital, undertook rehabilitation and required a neurosurgical review. Dr George’s report provides that Ms McAllister suffered severe injury and has undergone a long recovery and rehabilitation process.
Ms McAllister continues to take significant pain medication, as stated in her statement at [53]—she told me during the assessment it was necessary to take an Endone dose to continue.
The insurer denied requests for remedial massage, which she claims has a knock-on effect upon Ms McAllister’s capacity for employment, and the claim for economic loss (which I address below).
Ms McAllister has a track record of consistently working, including being capable of juggling child care and work as required.
Before the accident, Ms McAllister was undertaking hard, physical work such as cleaning and renovating her house in Queanbeyan with her daughter to sell it. In addition, she studied to become a Reiki healer.
Ms McAllister focused on raising her children. Once her children were grown, she focused on herself and planned to build a Reiki healing business whilst undertaking full-time paid employment (completing administrative work or otherwise) until the Reiki business provided sufficient income. The plan was in its infancy when the accident occurred. The house at Narrandera was to be the initial base to start her business.
Although Ms McAllister is qualified to practice Reiki since the accident she is not physically able to undertake that work nor is she able to undertake any other form of work. Her psychological injuries and the ongoing panic attacks complicate her ability to work physically. Ms McAllister’s experts and Dr George support this. Dr Powell, orthopaedic surgeon’s report dated 10 August 2020, says he considered employment options to be limited from a physical perspective (page 10).
Quantifying economic loss is not straightforward given the unique set of facts and some variables. However, Ms McAllister had shown a proven track record in successfully undertaking administrative work in long-term employed roles and temporary assignments.
Ms McAllister claims she would have secured a full-time job with the local council from March 2018 at a rate of $1,050 gross for a 35-hour week for 247 weeks to
31 October 2022.I agree with the insurer’s submission that net figures are appropriate. I applied the ATO on line tax calculator to deduct tax on the figure claimed. It gives about $870 as the net figure.
Past superannuation on the gross figure is claimed at 9% to total: $23,342.
In addition, Ms McAllister claims the following buffer for the past $60,000 comprising:
Reiki business income:
·2018 - $5,000;
·2019 - $10,000;
·2020 - $20,000 (taking into account COVID), and
·2021 - $25,000 (taking into account COVID).
Future economic loss
Ms McAllister’s remaining working life to age 67 is another 14 years.
Ms McAllister says there is no evidence to support a submission she would not have worked to a retirement of at least 67 years. On the expert evidence and considering both her physical and psychological disabilities, Ms McAllister is unlikely to have any capacity for work in the future.
Dr George’s report provides that Ms McAllister has typical symptoms of post-traumatic stress disorder and continues to have a troubling degree of anxiety and depression.
Dr George opines that Ms McAllister cannot return to work in the future (page 8 of the earlier report). From a psychiatric perspective, the doctor opines Ms McAllister’s chronic pain exacerbates her anxiety and depression. The insurer challenged
Dr George’s assessment, and the response in his report dated 27 July 2020 was that the insurer failed to understand the extent of Ms McAllister’s injuries and disabilities and the impact on functioning and capacity.Even if Ms McAllister was capable of physical work, Dr George’s opinion in both reports is she is not fit for future work due to her psychological injuries.
Dr George says on page 9 of his initial report that Ms McAllister struggles with the ability to attend, concentrate and complete tasks, and she cannot read to the same extent as she could pre-accident.
The claimant submits that quantification of such a claim is problematic. It had always been Ms McAllister’s intention to work in an administrative or cleaning role until her Reiki business was accruing enough income to support her. It, therefore, follows that at a minimum Ms McAllister would have continued to earn not less than $1,050 gross per week whether that was in an administrative role, a cleaning role or via the Reiki business. If the Reiki business had failed and Ms McAllister had not had the accident (sustaining both physical and psychological injuries and disabilities) she could have easily returned to administrative work or cleaning work, work in which she had a proven track record.
Even if Ms McAllister was physically or mentally fit to work, she is 53 years old. With her injuries and disabilities she is likely to face significant hurdles returning to an employed position including the willingness and ability of an employer to be able to accommodate her reduced sitting and walking tolerances and to have someone in the workplace who is taking significant medication and is prone to severe depression and anxiety.
The accident’s injury and disabilities adversely impacts Ms McAllister’s ability to obtain employment on the open labour market. In addition, her ability to undertake and grow her Reiki business in accordance with the plan she describes at [73]-[80] of her statement is lost.
Applying the net amount and correcting it for the time lapse between the submissions and this decision, Ms McAllister, therefore, claims a buffer of $391,867.26 ($871 per week gross x 529.3–15% vicissitudes).
Future loss of superannuation is claimed at 14% which on the above buffer totals: $54,861.42.
Insurer’s submissions
Credit
Mr Guihot questioned Ms McAllister extensively regarding her failure to report her cleaning income to the ATO and relies upon Hodgson JA[9] citing with approval the statement of Von Dousa J in Giorginis v Kastrati (1988) 48 SASR 371 at [375]-[376]:
“The want of honest compliance with the taxation laws is a matter that will reflect adversely on the plaintiff’s credit and may lead to the rejection of his evidence as untrustworthy, at least about his earnings.”
[9] AMP General Insurance Ltd. v Kull [2005] NSWCA 442 at [74].
The insurer submits the claimant has made self-serving and subjective claims about her future work intentions and that I should not accept her evidence unless it is corroborated with documents.
The insurer asked me also to consider Ms McAllister's pre-accident health and submits that I should increase the conventional allowance for vicissitudes by at least 30%. See: Adams v Tomes [2003] NSWCA 269, and Commonwealth of Australia v Elliott [2004] NSWCA 360 per Giles JA (with whom Hodgson and Tobias JJA agreed) at [81].
The insurer submits that post-accident Ms McAllister had made progress in recovery from her accident-related condition. In particular, the insurer draws my attention to treatment from psychologist Dr Brian English. Dr English saw Ms McAllister after
Dr George assessed her in May 2020. Dr English’s notes or report are not part of the claimant's case. However, as Ms McAllister told Dr Bodel in September 2020 she had found Dr English’s treatment helpful, then I am asked to draw an unfavourable Jones v Dunkel[10] inference that Ms McAllister's psychological condition has been mitigated.[10] (1958-1959) 101 CLR 298.
Non-economic loss
The insurer submits a reasonable award under this head of damage is $150,000.
Past economic loss
Ms McAllister was unemployed at the date of the accident.
The insurer submits Ms McAllister gave an incorrect history about her employment to strengthen her claim that she was fully functional before the accident.
The insurer highlights that Ms McAllister's work history between 1 July 2016 and the accident date is unclear.
The insurer drew my attention to the following observations based on histories Ms McAllister gave during medico-legal assessments and to her treatment providers:
(a) the claimant had not worked full-time since before 2006;
(b) while the source of all income declared in the 2016/2017 tax year is not known the claimant had only earned a total taxable income of $3,013 for the whole tax year, of which $800 was derived from work for Complete Staff Solutions Pty. Ltd for four days of work in October 2016;
(c) assuming the whole of the income disclosed in the claimant’s 2017/2018 taxable income as assessed in the Notice of Assessment was earned before the accident, the claimant only declared $2,952 throughout the 31-week period before the accident;
(d) the claimant therefore only declared a total taxable income of $5,965 for the 20 month period from 1 July 2016 to 4 February 2018;
(e) the average net weekly earnings for the period 1 July 2016 to
4 February 2018 disclosed to the ATO by the claimant in her tax returns were $71.86 net per week;(f) the claimant did not disclose income from any other alleged source of income for the period 1 July 2017 to 4 February 2018 other than the income from Complete Staff Solutions Pty Ltd totalling $2,952 in October 2017 or an average of $95.22 net per week for the pre-accident period of the 2017/2018 tax year;
(g) the claimant did not declare any income derived from working for Margaret Fletcher between “2013 and 2016” as she asserted in her résumé, and
(h) she did not declare any income earned while she was working for Sing Like A Bird in “2016-2017” as asserted in her résumé.
Ms McAllister also may have done other work during this period, which is referenced in visits to her general practitioner.
The insurer submitted if she applied to the local council there is no guarantee the claimant would have succeeded in obtaining work. The claimant has not provided any documentary evidence to confirm she was qualified for the supposed jobs. There are no details as to whether the jobs available or likely to become available were for a specified project or for a limited duration.
The insurer rejects her claim that she has lost her chance to become a Reiki Master and set up her own business, which became a “goal” after she had her last child. The insurer understands the claimant’s last child was about 12 at the date of the accident living with his father and older brother in Bungendore.
Even though more than a decade had elapsed since having her last child the claimant had not taken any steps to pursue her so-called “goal” even though she had qualified as a Reiki I (first degree) on 3 March 2007 and Reiki II (second degree) on
27 August 2011. The insurer put to Ms McAllister that she was not serious about this goal because she could have set up this business years before. No cushion could be awarded under this claim.The insurer submits that an amount of $13,225 (rounded up) would be reasonable to allow for past economic loss, providing for an average of $3,306.24 gross per annum for the balance of the 2017/2018 tax year and then for the 2018/2019, 2019/2020 and 2020/2021 tax years for casual work such as had been undertaken with Complete Staff Solutions (6) in the 2016/2017 and 2017/2018 tax years before the accident.
There should be no additional allowance for loss of superannuation, noting that superannuation contributions had not been paid by her employer in previous years.
There should be no allowance for any loss of employer-sponsored superannuation contributions as if she was self-employed.
Ms McAllister was not paid any weekly benefits under s 3.3 of the MAI Act so there is no deduction.
Future economic loss
Ms McAllister’s claim is calculated based on a loss equivalent to a loss of $1,050 gross per week to age 67, discounted by 15% for the conventional vicissitudes. The insurer disputes that.
As of 13 March 2019, Dr Bodel considered the claimant should be able to contemplate at least 20 hours per week and, with improved physical fitness levels, may be able to upgrade to 30 hours per week in permanently modified duties (A3).
Dr Powell opined Ms McAllister was fit to work on the open labour market but subject to restrictions. Dr Buckley supported her returning to restricted work, subject to her psychological condition. The insurer discounts that opinion because Dr Buckley is not a psychologist.
Dr George’s finding on Ms McAllister’s psychological condition ought to be balanced against the opinions about her physical condition because she had post-traumatic stress disorder-specific treatment after she saw Dr George.
The insurer repeats the previous submission that the most likely future circumstances but for the accident following s 4.7 of the MAI Act are that Ms McAllister would have pursued the “tree change” she confirmed to her treating physiotherapist, practising her Reiki skills as a hobby and accepting occasional casual administrative work such as offered by Complete Staff Solutions (6) for up to three weeks a year to age 67.
The future economic loss could be compensated with $25,000 and the insurer provided some calculations supporting this.
Reasons
Credit
I have scrutinised Ms McAllister’s evidence as it was expressed in her interactions with treating and medico-legal doctors, her evidence in her statement and Mr Guihot’s questioning.
Mr Guihot seeks I should not accept the evidence on her attempts to find work and her plans for the future without corroboration. He points out that Ms McAllister – to make her case stronger – gave Dr George the impression she was working up to the time of the accident and did not tell the examining doctors about her medical history.
He took care to expose Ms McAllister’s failure to declare tax on money made house cleaning to supplement what he pointed out were her meagre earnings while she was her children’s primary carer. Over the 18 months she was doing this she would have made $15,600.
Based on the financial documents provided showing her most recent pre-accident earnings and clarified in the insurer’s submissions, it is possible that the entire amount spread over that time added to the declared earnings would not have been taxed.
He took care to point out she did not volunteer her pre-accident history to a number of doctors.
There is no evidence though whether there was a pre-meditated omission designed to deceive. Hypotheses with equal likelihood could be the diagnosed vagueness she experienced due to medication and her psychological condition or an assumption that the parties arranging the examinations would provide her history to the doctors.
Ms McAllister claims to have worked in aged care/cleaning one day per week for Mrs Margaret Fletcher in the period “2013-2016”[11] and not declared that.
[11] A26 Ms McAllister’s résumé.
The claimant explained in requestioning though that she was then a single mother with the care of five children, while their father declined to pay child support, so she had to earn extra money cleaning and caring for a friend.
In Morvatjou v Moradkhani [2013] NSWCA 157, McColl JA said that it was “glaringly” improbable that the plaintiff earned only the income disclosed in his tax returns at a time when he was supporting himself, his wife and two children.
Like Mr Guihot, McColl JA, in that case, referred to Von Doussa J’s reasons in Giorginis. However, the learned judge said at the same time; such a discrepancy reflected on a plaintiff’s credit so that their evidence generally needed to be scrutinised with special care, it did not necessarily disqualify them from recovering damages based on evidence of actual earnings.
McColl JA did not endorse that a plaintiff must admit failure to disclose income to tax authorities. However, she continued the Court of Appeal’s emphasis on assessing the diminution of income-earning capacity, acknowledging that evidence of actual income was the most helpful guide when undertaking this exercise. In this case the evidence from Ms McAllister in her statement and during questioning is that she had an earning capacity that was greater than the documented earnings reported.
I weighed the insurer’s submission against how Ms McAllister conducted herself in the course of her claim with the various doctors, the medical evidence about her frank injuries and her psychological condition and this assessment, and I am satisfied I can accept Ms McAllister’s evidence.
I found Ms McAllister was consistent in her presentation and answered questions directly.
She’s not a sophisticated, well-educated woman, nor has much documentation supporting her claim to make $1,050 gross per week. However, I am satisfied that she has a history of being a consistent worker whose time out of the workforce was to care for her family. I’m satisfied she had hopes and ambitions for her future career.
The submitted medico-legal reports express objective evidence supporting her contention that due to her accident related injuries, she cannot expect the future she had hoped for.
The insurer has also asked me to consider that after Dr George produced his psychiatric assessment, Dr Brian English, a clinical psychologist, began treating
Ms McAllister at the Capital Pain & Rehabilitation Clinic at Deakin ACT. The claimant does not rely on any material or report from Dr English, which the insurer says might have described remission of her post-traumatic stress disorder. This is because
Ms McAllister mentioned to Dr Bodel, who saw her late in 2020, that she had some effective post-traumatic stress disorder treatment.The insurer submits that the failure to rely on Dr English's report or clinical notes is the basis for an unfavourable Jones v Dunkel inference regarding the treatment results for Ms McAllister's post-traumatic stress disorder.
The inference is that Ms McAllister no longer suffers from post-traumatic stress disorder, or her symptoms are mitigated. This would assist the insurer’s case based on Dr Buckley’s report, which was explicit that Ms McAllister would have some physical residual work capacity in light administration and healing, but for her psychological condition.
Making such an inference requires careful consideration. The failure to rely on a witness who it is expected could have given helpful evidence for an opposing party cannot be used to fill in a gap in evidence or convert conjecture into suspicion.
From reading Dr George’s report it is apparent that it sufficiently discharges the onus on the claimant to establish her psychiatric injury.
I find the fact Ms McAllister relies solely on Dr George is not a basis for suspicion about Ms McAllister's psychiatric condition, because there is no dispute the immediate circumstances of the accident could cause such a condition. Ms McAllister was in a frightening and painful situation, where she was aware that she had broken her back and was required to lie on a burning surface until medical assistance could arrive.
The symptoms of nightmares and unwelcome recollections were enough for Dr George to establish his post-traumatic stress disorder diagnosis. The secondary impact of ongoing pain and physical restrictions is also enough for Dr George to diagnose a significant ongoing depressive illness.
The insurer could have used the claimant's authority or sought directions to obtain Dr English’s clinical notes. The insurer declined to do so.
I note that the insurer had already asked Dr George to reconsider his psychiatric impairment rating scale (PIRS) assessment and that it could have asked him to consider Dr English’s material too, in respect of establishing Ms McAllister’s residual earning capacity.
Further, Ms McAllister’s evidence that she still requires psychological treatment satisfies me that this condition is ongoing.
In that case, I decline to draw any inference about the claimant’s decision to not rely on Dr English.
ASSESSMENT OF DAMAGES
Non-economic loss
The fundamental principle of assessing or awarding damages to an injured person is that damages should be assessed so that they represent no more and no less than a plaintiff’s actual loss: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, Lord Blackburn at [39].
In personal injury matters, because it is difficult if not impossible to restore an injured person to the health they enjoyed pre-injury, the compensatory principle has been qualified for non-economic loss damages by the phrase “so far as money can do so”: Robinson v Harman [1848] All ER Rep 383.
Section 3 of Civil Liability Act 2002 (CL Act) contains the following definition:
“‘non-economic loss’ means any one or more of the following:
(a)pain and suffering
(b)loss of amenities of life
(c)loss of expectation of life
(d)disfigurement.”
This is replicated in s 1.4 of the MAI Act. The law recognises that an award under these Acts will not necessarily be perfect, because it cannot be calculated like some other forms of damage in terms of money.[12]
[12] Lee Transport Co Ltd v Watson (1940) 64 CLR 1 at [13]–[14], Dixon J.
Damages for personal injury are given on a once and for all basis. There is no coming back if the claimant’s condition worsens or improves.
As a Member of the Commission, it is my task to calculate what Ms McAllister’s compensation for non-economic loss is worth. The following is drawn from the NSW Judicial Commission’s bench book on damages, which summarises the authorities on compensation for non–economic loss[13] and Luntz[14].
[13] Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis.
Ms McAllister would have been advised that in order to be eligible for these damages she had to satisfy a threshold of being more than 10% permanently impaired to be entitled to this head of damage. There was an agreement that Ms McAllister satisfied the threshold.
However, the level of her impairment expressed as a percentage, which is not agreed upon, does not help me assess the quantum of damages.
There is also a statutory cap of $605,000 that limits the amount of non-economic loss damages. However, a tribunal cannot calculate the entitlement based on a percentage of that maximum amount, and there is no proportionality.[15]
[15] Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 – as per Heydon JA at [39].
Ms McAllister submitted the appropriate assessment is $450,000, and the insurer submitted $150,000.
Disfigurement is relevant to Ms McAllister’s case because she has a healed ovoid scar over the left hip’s lateral aspect. The nature of it is mild, but it is there, and she gave evidence that she is conscious of it.
There is no evidence of her injuries shortening Ms McAllister’s life, but it was clear she planned and hoped for more fun and prosperity in her life.
There is considerable physical pain and suffering from her bodily injuries. The claimant suffers mental anguish and unwelcome intrusions in her sleep from nightmares arising from post-traumatic stress disorder, anxiety and depression. There is evidence of a significant loss of amenities and enjoyment.
The pain and the mental conditions impact her capacity to sleep soundly, and this excludes her from considerable benefit for her life because it is the “…balm of hurt minds, great nature's second course, chief nourisher in life's feast”.
Being unable to sleep soundly due to her accident is a severe disability. It is an important biological function essential for life.
Many vital functions during sleep help the body in physical recovery and repair, support brain development, cardiac function and body metabolism, support learning, and improve memory and mood. It is tough for Ms McAllister to mitigate her daytime condition and exercise residual work capacity if she cannot achieve optimal sleep.
More than four years have passed since the claimant was injured in frightening and painful circumstances, and she has since then experienced nightmares and flashbacks coupled with often severe physical pain. She takes strong medication and has required extensive counselling and therapy with limited success.
Ms McAllister has attempted to mitigate her pain and suffering and reduce her reliance on drugs by participating in the Arthritis ACT programs after the insurer cut her treatment funding.
She does some things around the house, within the family and in the community, but she does not participate in life as she used to. She is somewhat dependent on her partner and family, along with the insurer providing house cleaning to undertake those domestic duties she used to do. All the doctors agree that her condition will not alleviate to enable her to reach her pre-accident level of functioning.
The accident has reduced her enjoyment in interacting with her children and grandchildren. It also has reduced intimacy with her partner, which the insurer should compensate.
Ms McAllister was curious, flexible, seeking upward mobility, and optimistic before her accident, while now she is in pain, constipated, medicated, anxious and pessimistic.
Ms McAllister’s condition is chronic, and as she is 53, she can expect – on the medium life tables – 34 years to live with the after-effects of the accident.
I assess the appropriate damages for the claimant at $328,000 for her non-economic loss.
Past economic loss
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 s 4.7 of the MAI Act.
Ms McAllister has not been able to return to work since the accident.
She had a long recovery, coupled with the pandemic, which limited her opportunities to access rehabilitation and attempts to find suitable employment.
At the time of the accident, Ms McAllister had not been working and her most recent work was temporary administrative work assignments and cleaning. Her history was of someone who would have a go at various types of work. House renovation had been successful and funded her move to Narrandera.
Ms McAllister showed an aptitude for these assignments. She had moved to a new town, and it is evident from the email that she had begun to look around for work. She was not responsible for children anymore, and if the move to Narrandera was successful, she was free to seek suitable assignments that could increase from temporary roles to permanent part-time or full-time work.
From her evidence about her past work participation, I am satisfied she had an authentic desire to do work that she was enthusiastic about, like Reiki healing or in another job where she had already shown an aptitude.
She was not under financial pressure as her partner was a good earner, and she was mortgage-free. If Ms McAllister increased her work up to full-time or at least regular part-time, she could have thrived in Narrandera, so her expressed ambitions were realistic.
I am satisfied that she has missed out on opportunities to obtain work due to her injuries, and this has caused economic loss.
She had some pre-accident health challenges set out above. However, based on clinical notes produced, it looks as if most of these had settled down before the accident, and they did not require further treatment, although she had ongoing symptoms from osteoporosis.
The parties gave no evidence about the state of the Riverina employment market. However, Narrandera, Leeton and Griffith, which are not long drives apart, thrive with manufacturing and rural industries with the entailing support services.
Based on her long time out of full-time work, I am confident that she would have initially been working temporary and part-time roles if she had succeeded in obtaining any role. Eventually, she could have achieved access to a role that had permanence, or she would become known as someone who could adapt to different environments and able to step into the various businesses in the region.
I find it probable that regular part-time or full-time work would have been intermittent until she established herself, say, after 18 months in the area.
The pandemic would not have adversely impacted cleaning and administrative work because cleaning and administrative workers who could attend remotely were in demand. I will allow part of her loss claimed from a date after the accident because she was in a position to accept work and was looking.
In my draft assessment I made an error in allowing 78 weeks at $500 for reduced part-time work from 4 February 2018 to 3 August 2019 for past economic loss. The sum equated to $39,000.
The claimant was claiming she would have had work from the beginning of
March 2018 and I accept that. I will reduce the sum for past economic loss to $37,000 to reflect that.I calculate the remaining 167 weeks up to date as $870 per week to be $145,290 to total $182,290.
I do not allow an additional buffer for the Reiki business because it appears work on the Reiki healing business would have been in substitute for administrative or cleaning work. The pandemic would have also interfered with Ms McAllister meeting people in their homes to conduct sessions.
I calculate the superannuation on past economic loss at 11% to be $20,052.
Future economic loss
Due to her accident-related injuries' physical and psychological impacts,
Ms McAllister claims she cannot exercise her ambition to work and establish her Reiki healing business. I note that the insurer has urged me not to accept her evidence unless documentation corroborates her, but I have decided I can accept her ambitions as authentic.It is most likely that she has and will suffer economic loss in the future due to her injuries due to the accident's sequelae.
The evidence is that Ms McAllister’s move to a new town, being child and mortgage free, would have freed her to participate in the employment market and launch her business. Notwithstanding her lack of concrete plans regarding her business, I accept that she had a genuine desire to test herself in that arena.
Being able to work in administrative work and cleaning while being the primary child carer and renovating her home before the accident demonstrated that she has a work ethic and could step into different workplaces. She has lost this capacity due to the impact of her psychological injuries. The accident has reduced her competitiveness in the open labour market because of her combined psychological and physical conditions impairments.
Residual earning capacity
Relying on Garling J in Kerney v Mead[16] Ms McAllister was required to prove her economic loss; see Todorovic v Waller (1981) 150 CLR 402 at [412]-[413]. However once that loss is established, it is for the insurer to prove that Ms McAllister has a residual earning capacity and provide evidence of what she is capable of doing and what jobs are open to her.[17]
[16] Kerney v Mead & Anor [2011] NSWSC 518.
[17] Luntz, Assessment of Damages for Personal Injury and Death (5th ed) at 241 [1.11.26].
The insurer must show that a claimant has a residual earning capacity that she is practically capable (rather than theoretically capable) of exercising. A tribunal must make a practical assessment of the likelihood of Ms McAllister obtaining and keeping a real job, which is accessible to her, considering she is disabled by pain, restriction and impairment: generally see Mead v Kerney [2012] NSWCA 215 and South Western Sydney Local Health District v Sorbello [2017] NSWCA 201.
Ms McAllister’s history before the accident demonstrated an established work ethic.
Ms McAllister worked in business administration. Sometimes she held more than one job at a time.
Ms McAllister was also curious, and despite not completing school, she had explored being a healer and studied to fulfill this ambition.
Ms McAllister's statement and evidence are that since the accident, she has had limited or no capacity to carry out the administrative roles and Reiki healing.
Dr Buckley’s comment regarding the adverse impact of her psychological condition does have weight—despite the insurer’s submission. Dr Buckley is a rehabilitation specialist. A rehabilitation specialist is expected to make global assessments about an injured person’s work capacity, incorporating the psychological and physical conditions.
The insurer has not provided evidence that deals with:
(a) how Ms McAllister would deal with seeking concessions from potential employers to make up for her functional and psychological disabilities;
(b) the submissions and report do not deal with how she would manage her functional and psychological conditions if her work required her to go outside the restrictions that all the doctors agree would be required. Also, nothing addresses how she would retain full-time employment if she inflamed those conditions, and
(c) there are no strategies that address how Ms McAllister would fare when competing with non-disabled applicants in the open labour market for full-time work.
I am not satisfied that the insurer has discharged the onus that Ms Burton could be employable on a sustained basis in the administrative field or be successful in her business because:
(a) the broad consensus of medical evidence supports an assessment that Ms McAllister is impaired psychologically and physically and that each impact on the other;
(b) the continuing pain wears down Ms McAllister emotionally and reduces her capacity to deal with colleagues and customers;
(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 McAllister's psychiatric and physical conditions aligning enough so that she feels well enough to apply herself to her task.
Based on medical evidence, Ms McAllister will still take heavy pain-killing medication. Taking strong medication would adversely impact her employability, because it makes her drowsy and in some cases it could be unsafe to work while taking that medication.
Suitable part-time work would have to be available. Ms McAllister would still be limited because her capacity to accept work would depend on appropriate work being available and her being well enough to accept that work.
I am satisfied though that there is a slight chance that Ms McAllister could find suitable part-time work for some of the time over the next 14 years because:
(a) Ms McAllister has demonstrated she enjoyed working for its own sake;
(b) she has demonstrated resilience and a can-do attitude in terms of seeking suitable treatment, and
(c) in time her psychological condition may ease when suitable jobs may be available. The longevity of any role would depend on whether she aggravated either condition.
I am satisfied that this is a favourable vicissitude that slightly mitigates the disabilities the accident caused.
I accept, too, that there is a slight chance that pre-accident health issues, such as osteoporosis, could have shortened her career. Still, it is a minor impact compared with her motor accident injuries, so I increased the discount to 20% from the usual 15%.
Superannuation
I assessed the superannuation for the past amount.
I assess superannuation at 14% of the total damages for future loss of earning capacity.
Loss of opportunity
Ms McAllister has lost the opportunity to develop her Reiki healing business.
Due to the work ethic Ms McAllister had demonstrated before the accident and the study she had completed, there was a chance she would have launched her business, as she claims.
I assess the lack of concrete plans for Reiki healing as diminishing the probability it would succeed to a possibility. However, following the dicta in Malec v Hutton[18] and State of NSW v Moss[19],the fact that her business was a possibility is something I can allow as a future buffer. If she had been able to launch her business, it could have been something that could have had longevity because there is no statutory retirement age for that type of work.
[18] (1990) 169 CLR.
[19] (2000) 54 NSWLR 536
I allow $38,000 for the buffer.
I calculate Ms McAllister’s future economic loss as follows:
280.$870 x 529.3[20]= $460,491 x 20% vicissitudes at $368,393;
281.$368,393 x 14% = $51,575 for loss of superannuation, and
282.$38,000 as a buffer for the business loss of opportunity
283.= $457,968.
[20] Luntz 5th edition, Appendix Table 2 page 1,131.
Assessment of Damages Summary
Section 7.36 (1) (b) of the MAI Act requires me to assess the damages for that liability that a court would likely award.
I assess the damages for this claim based on the above findings:
Non-Economic Loss $328,000
Economic losses
Past loss of earnings (nil s4.5(1)(d) MAI Act damages) $182,290
Past superannuation $20,052
Future loss of earnings including buffer and superannuation $457,968
Interest
Total of economic losses and non-economic loss $988,310
Total Damages Assessed $988,310
Costs and Disbursements
Claimant costs submission
Schedule 1
| Column 1 and 2 | Costs Allowed (incl GST) |
| Stage 1 | $321.20 |
| Stage 2 | $475.20 |
| Stage 3 (g) $11,448.00 $17,810.60 GST $2,925.86 | $32,184.46 |
| Sub-total | $32,980.86 |
General Assessment Disputes / Conferences
| Costs Allowed (incl GST) | |
| Representation at Assessment Hearing | $3,300.00 |
| Conferences directly related to PIC Assessment Hearing · Conferences directly related to Assessment Hearing x 2 | $660.00 |
| Sub-total | $3,960.00 |
Schedule 2 Maximum Fees for medico-legal services
| Treating Specialist Reports | Costs Allowed (incl GST) |
| Jude King, Psychologist dated 31 July 2020 | $1,320.00 |
| Dr Geoffrey Speldewinde, Rehabilitation and Pain Management Physician dated 20 April 2020 | $1,320.00 |
| Sub-total | $2,640.00 |
| Medico-legal Specialist Reports | Costs Allowed (incl GST) |
| Dr Garth Eaton, Occupational Physician dated 24 March 2019 | $1,760.00 |
| Dr James Bodel, Orthopaedic Surgeon dated 07 April 2019 | $1,760.00 |
| Dr James Bodel, Orthopaedic Surgeon dated 18 September 2019 | $1,760.00 |
| Dr Stephen Buckley, Rehabilitation Physician dated 11 December 2020 | $1,760.00 |
| Sub-total | $7,040.00 |
Costs Not Regulated
| Occupational Therapy Report · Marie Stephens dated 25 November 2020 | $5,940.00 |
| Clinical notes of Capital Neurosurgery (Dr Peter Mews) | $88.00 |
| Sub-total | $6,028.00 |
| TOTAL REGULATED COSTS & DISBURSEMENTS | $52,648.86 |
Insurer costs submissions
These submissions are in response to the claimant’s claim for costs and disbursements dated 4 November 2022.
The insurer concedes the costs and disbursements claimed, save for the following:
(a) The insurer disputes the disbursement relating to the cost of the report of
Dr Speldewinde dated 20 April 2020. It is highlighted that the report (A14) was requested for the purpose of seeking Dr Speldewinde’s opinion on soft tissue massage. In GIO’s submission, the report was irrelevant for the purpose of the claimant’s claim for damages in circumstances where treatment does not from part of the claimant’s claim for damages under Part 4 of the MAI Act;(b) The insurer disputes the disbursement relating to the cost of the report of Dr Eaton dated 24 March 2019 in circumstances Dr Eaton has never been an authorised practitioner under the Motor Accident Guidelines 2021 and his report is inadmissible pursuant to s.7.52 of the MAI Act and cl 8.4 of the Motor Accident Guidelines 2021, and
(c) The insurer disputes the disbursement relating to the cost of the report of Marie Stephens in circumstances Ms Stephens has never been an authorised practitioner under the Motor Accident Guidelines 2021 and her report is inadmissible pursuant to s 7.52 of the MAI Act and cl 8.4 of the Motor Accident Guidelines 2021. Further, in GIO’s submission, Ms Stephens’ opinions on domestic assistance were irrelevant as there is no entitlement to past or future domestic assistance as a head of damage under Part 4 of the said Act.
I assess the claimant’s legal costs and disbursements under Part 8 of the MAI Act and the Motor Accident Injuries Regulation 2017, following the attached sheet and my reasons for any disputed claims are as follows:
(a) I have not approved Dr Speldewinde’s report dated 20 April 2020. The claimant did not refer me to his report in any of the submissions. I agree that his report only addresses the massage issue;
(b) I also agree that Dr Eaton’s report dated 24 March 2019 ought not be reimbursed as the claimant did not rely on that report. It was also not a part of the initial submissions, and
(c) I will allow part of the Stephen’s Encompass report disbursement. I have set out in my reasons above that this report assisted me to have a more intimate view of the accident’s impact to discern Ms McAllister’s non–economic loss, although I note it was part of making a care services case. I approve $3,000 ex GST.
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 MAI Act, I specify the amount of damages for this claim as $988,310.
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
$71,633.10 inclusive of GST.
Legislation
In making my decision I have considered the following legislation, authorities and guidelines:
· MAI Act;
· Personal Injury Commission Rules;
· 2020 Act;
· CL Act;
· Malec v JC Hutton (1990) 169 CLR per Deane, Gaudron and McHugh JJ at [7];
· New South Wales v Moss (2000) 54 NSWLR per Heydon, JA at [70];
· Husher v Husher [1999] HCA 47;
· Medlin v State Government Insurance Commission (1995) 182 CLR;
· Kerney v Mead & Anor [2011] NSWSC 518, and
· Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis.
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