Melleuish v AAI Limited t/as GIO

[2023] NSWPIC 323

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Melleuish v AAI Limited t/as GIO [2023] NSWPIC 323

Claimant:

Susan Melleuish

insurer:

AAI Limited t/as GIO

Member:

Allan Cowley

DATE OF DECISION:

20 June 2023

CATCHWORDS:

MOTOR ACCIDENTS Motor Accidents Compensation Act 1999; assessment of damages; liability admitted but denial by insurer of any loss or damage; claim was for psychiatric impairment only arising from claimant’s home being rendered uninhabitable after insured’s vehicle collided with her home; claimant and family were homeless for many months; claimants employment terminated; claimant found further employment and qualifications and is now employed; agreed now suffering modest adjustment disorder after suffering loss of home, employment and disruption of family; issues of causation; Held – no entitlement to non-economic loss conceded; buffer for past loss of income over eight years; modest buffer for future due to vulnerability.

determinations made:

CERTIFICATE

In accordance with Part 4.4 of the Motor Accidents Compensation Act 1999, the Commission’s assessment is;

1.    The amount of damages assessed in respect of this claim is $117,200.

2.    The amount of the claimant’s costs in the matter is $29,115.77 inclusive of GST.

3.    A statement setting out the Commission’s reasons for the assessment is included with this statement.

STATEMENT OF REASONS

INTRODUCTION

1. The Claimant seeks damages for her mental health arising out of the subject accident over 8 years ago when she was 40. She is now 48.

2. The accident is unusual in that it happened in the evening when she was upstairs in her rental accommodation watching television with her children when the accident occurred.

3. The driver of the insured vehicle apparently lost control of her vehicle and crashed into their home. Ms Melleuish helped the driver from her vehicle who then fled the scene.

4. The house they were living in was deemed unsafe and she and her family were forced to move out immediately.

5. The Claimant was then obliged to live in various different places including motel accommodation, couch surfing with friends and eventually living in a campervan in the driveway of their home for several months before obtaining accommodation elsewhere.

6. At the time of the accident the Claimant worked part-time as a support worker at Central Coast Living Options for 25 hours per week. She took one week off work and then returned to work.

7. The Claimant alleges that as a result of the accident her position was terminated on 16 June 2015.

8. The Claimant also alleges that the accident caused the breakdown of her domestic relationship.

9. The Insurer ultimately admitted liability but, in the proceedings, denied that any loss of damage arose out of the subject accident and that the Claimant is not entitled to any damages.

10. The Insurer submits that the Claimant lost her job because of disciplinary proceedings and that her relationship with her then partner Jesse Swain terminated for reasons other than motor vehicle accident.

11. The following issues have arisen in this matter:

a. What is the nature and extent of the Claimant’s injuries?

b. Is the Claimant entitled to past economic loss?

c. Is the Claimant entitled to future economic loss?

d. What is the Claimant’s past treatment expenses?

e. What is the Claimant’s future treatment expenses?

BACKGROUND

12. Ms Melleuish reported abuse and neglect by her mother and an unhappy childhood. Her family experienced poverty, frequent moves and her parents separated when she was 2 years old. Her mother re-coupled 3 times with varying degrees of harmony and periods of domestic violence. Her mother suffers psychiatric ailments.

13. As a child the Claimant would often go hungry and was never given affection. She felt psychologically abused by her mother. She started to run away from the age of 13. She attended 13 Primary Schools and 4 High Schools. She truanted frequently and ceased school without completing Year 11. From the age of 16 she suffered frequent panic attacks. In the year 2000 she reported being on anti-depressant medications and in 2007 she reported treatment following the death of an infant son. In May 2010 she was the victim of domestic violence amongst other physical injuries suffered a lower back soft tissue injury. In 2014 she reported on being on Diazepam and in November 2014 Clinical Notes suggest that she was again being assaulted as a result of domestic violence.

14. Her second partner Jesse Swain also inflicted domestic violence mainly as a result of his drug and alcohol dependency. By February 2015 a Mental Health Plan was provided by her treating GP when she reported the stress of being with Mr Swain, money problems and of a lack of support. She was referred to a psychologist. A month later was the subject accident.

15. The Claimant has 4 daughters by her first husband and a son with Mr Swain.

16. On the night of the accident, she was upstairs watching television with 3 of her daughters then aged 10, 14 and 17 and her 18-month-old son. Her eldest daughter was absent at the time. After the loud noise of the collision of the insured driver with her house the Claimant went downstairs and was grateful that her daughter was absent as the collision had occurred close to her absent daughter’s bedroom and she could otherwise have been injured.

17. She assisted the insured woman from the vehicle and when other neighbours emerged the driver absconded.

18. The home was uninhabitable. Her 3 younger daughters were accommodated by their father, her ex-husband while she and Mr Swain were accommodated with a friend along with her son. She then spent the next 3 or so months couch surfing, or in a motel, or in a campervan in the driveway of the un-inhabitable home before she was able to find more permanent accommodation.

19. Prior to the accident she had worked as a support worker in a disability organisation (Central Coast Living Options) and working part-time permanent about 25 hours per week at about $30 per hour.

20. Immediately prior to the accident she had enrolled in a course to improve her Disability Support Worker qualifications. She was unable to continue this course for a period due to the motor vehicle accident. She subsequently completed the course and then commenced University studies.

21. The Insurer ultimately issued a Notice pursuant to Section 81 on 24 September 2018 admitting liability for the claim. The letter amongst other things stated:

“By admitting liability we admit:

· The person insured owed your Client duty of care; and

· The person insured breached that duty of care and was at fault; and

· Your client suffered injury, loss or damage as a result of our insured person’s negligence.”

22. The Claimant was initially off work for 1 or 2 weeks with the assistance of a doctors certificate but returned to work. On 16 June 2015, 3 months after the accident she was dismissed from her employment for alleged misconduct. 2 weeks prior she had been given a formal warning. The warning and dismissal related to a client, Jeanie, who had mental health issues. The Claimant said she felt she had been unfairly dismissed given that she had been employed by them for some 6 years prior and that her dismissal occurred 3 months after the accident and while she was having considerable personal issues. Ms Melleuish states that she did not have the “energy or resources to cope as usual”. She felt stressed, exhausted, and tired and whereas she was a resilient person she found life a struggle and overwhelming. She states she had lost control of her life and caring for her family.

23. After 3 months she was provided with a new house which was satisfactory enabling her again to reside with her partner, son and her 3 daughters.

24. At some stage after this, but in cross-examination she admitted it could have been later in 2015, she was made aware of inappropriate sexual behaviour by her partner Jesse Swain with one of her daughters. She understood it consisted of her smacking her daughter on the bottom and later cuddling the daughter in her bed.

25. It was apparently much more than that and Mr Swain was eventually charged with multiple sexual offences against various children, including 2 of the Claimant’s daughters which came before the Courts in 2020.

26. Mr Swain had been arrested in February 2019 specifically because of the sexual abuse of her daughter Jasmine in November 2018 when she first became aware of her offences against her children.

27. The Claimant was also cross-examined about an Affidavit that she had provided, affirmed 11 March 2019 in proceedings in the Family Court of Australia. This was in the context of her trying to seek sole custody of her son, against Mr Swain, the father of the child.

28. It was put to her that she had lied to the Family Court when she said that she did not have any previous mental health issues. This was despite the fact that she had suffered some depression after the death of an infant son early in her first marriage and that she had suffered post-natal depression after the birth of each of her children. Further that there was no mention of the subject accident in her Affidavit to the Family Court.

29. She accepted that she had lied to the Family Court concerning her previous mental health issues but that was in the context of her trying to ensure she had sole custody of her son. I was not provided with a copy of the Affidavit and I presume that was because it would be a contempt of the Family Court pursuant to the Harmon principle for me to be provided with that pleading.

30. In terms of study, she was awarded a Diploma of Community Services Certificate in 2018 and then in September 2019 commenced studies at the University of Newcastle being awarded a Bachelor of Social Science with a major in Human Services on 18 August 2022. Her transcripts showed that she had some passed but also some credits, distinctions, and high distinctions in completing her degree with no failures.

CAUSATION

31. Following production of various documents as a result of my Directions and the Insurer’s own investigations, the Insurer made further submissions dated 25 May 2023 alleging that the Claimant has provided incomplete and misleading histories to all of the experts which call into question whether the Claimant has suffered any loss or damage at all.

32. These submissions provoked Claimant’s Counsel Mr Quickenden to respond by his own further written submissions dated 26 May 2023.

33. Mr Quickenden submitted that the admission of liability on 24 September 2018 included an admission of liability for damage or loss and that such a withdrawal of an admission was not permissible given that decisions in Nominal Defendant v Gabriel [2007] NSWCA 52 and Smalley v Motor Accidents Authority of NSW [2013] NSWCA 318.

34. I do not interpret the Insurer’s further submissions as being a withdrawal of liability but that under each of the Heads of Damage the Claimant is entitled to either Nil or minimal damages, which is for me to assess.

35. The Insurer’s submissions note that the Claimant has an extensive pre-accident history of psychiatric conditions requiring treatment and anti-depressant medications. They note the numerous panic attacks since the age of 16, prescribing of the anti-depressant medication Diazepam 4 months before the accident, and a referral to a psychologist 1 month before the accident as a result of a mental health care plan where she was described as having “stress at home (Jesse Swain), money problems, relationship issues, down herself and lack of support, MHCP to see Psychologist”.

36. After the accident the Insurer submits that there were many supervening factors that could cause psychiatric symptoms not related to the accident. Firstly, there was her dismissal from Central Coast Living Options for serious misconduct. Her clinical notes note multiple consultations describing Mr Swain as her major emotional problem describing Mr Swain as an alcoholic and that there were many incidents of domestic violence.

37. In February 2022 Psychologist Dr Rodriguez took a history that the relationship broke down due to his reliance on drugs and alcohol and abusive treatment of her.

38. In 2018 she obtained treatment under a Victims Compensation Program.

39. In October 2016 Psychologist Judith Lightfoot described the Claimant’s relationship with her ex-partner Jesse Swain as being the prime cause for her feeling of depression.

40. In her GP mental health plan completed in November 2017 the presenting issues were “recently separated from partner, domestic violence victim, ex-partner alcoholic – all above caused depression / anxiety, panic attacks” the diagnosis was one of “depression / anxiety / domestic violence victim / situational stress”.

41. In June 2018 treating Psychologist Mr Gorczynski noted that Ms Melleuish had progressed through 2 stressful events. The first dealing with an abusive and erratic ex-partner and the father of her child and secondly that she had recently completed moving of premises to new suitable accommodation which entailed organising and monitoring the move and at the same time had the demands of completing course work and assessments.

42. In a report dated February 2019 Mr Gorczynski recorded the Claimant was experiencing stress at very high levels due to her son being diagnosed with ADHD and that her daughter was the subject of abuse allegations by her ex-partner who was now on bail.

43. On 13 March 2019 Mr Gorczynski recorded that she was suffering from stress because of moving, the university courses, her son’s ADHD and attending Court. Her daughter was self-harming being previously suicidal.

44. Two weeks later on 28 March 2019 Mr Gorczynski recorded that the Claimant was doing well at her studies while managing 2 Court issues. One appears to be the criminal matter relating to her ex-partner’s sexual assault of her daughter and the other one being a case she has initiated which presumably is the Family Court proceedings where she is seeking custody of Justin as well as seeking a change of name for him.

45. By January 2020 Mr Gorczynski reports that Ms Melleuish’s stress is now 7/10. The Family Court matters and the Criminal matters have now been put over until later in the year but are still causing her stress. The main current stress factor is that her own mother has now moved in to live with Susan and the family and this is causing a lot of conflict with her mother in setting of boundaries, disruption of routine and the conflict of the mother’s treatment of Susan when she was young and her feelings of rejection and neglect.

46. The Insurer submits that the records produced by Mr Gorczynski indicate that the Claimant’s issues with her parents, her upbringing, domestic violence, criminal Court cases, Family Court cases and psychological treatment addressing of these issues continued in 2021 and 2022 and that a lot of her symptoms relate to the Claimant’s abandonment issues with her parents. There is also reference to depression being related to COVID 19. Importantly they submit there is no reference to the subject accident as the cause of symptoms.

47. The Insurer also submits that there are supervening physical injuries.

48. Records indicate that the Claimant has suffered from carpal tunnel syndrome for many years from at least 2018. From 2018 she also seems to have suffered from lower back pain for which she received ongoing treatment by a Chiropractor. She also complained of right knee pain from about 2015.

49. From November 2020 she complains of left arm radiculopathy for which she eventually underwent cervical spinal surgery in May 2022. She was also in receipt of scripts for chronic pain including opioids.

50. In September 2022 she underwent surgery to remove her gall bladder.

51. In summary the Insurer says that the Claimant is not a reliable historian and that each of the doctors were given an erroneous history.

52. The Insurer highlights the Claimant’s Statement to me dated 20 December 2022 wherein she stated that the prime cause of her relationship breakdown was largely in part because of the accident.

53. The Insurer submits that the relationship ended for reasons unrelated to the accident mainly that Mr Swain was abusive and had alcohol and drug problems.

54. The Insurer further submits that the treaters including Mr Gorczynski considered the criminal proceedings were very relevant to the Claimant’s psychiatric symptoms.

55. Ultimately the Insurer submits that the Claimant has provided an incomplete history regarding her relationship breakdown and that each of the experts should have been afforded the opportunity to consider the nature of the criminal proceedings brought against Jesse Swain.

56. In reply, Mr Quickenden submitted that Ms Melleuish obviously had a vulnerable personality as at the time of the subject accident.

57. Firstly, he submits that the Civil Liability Act 2002 (NSW) Section 32(1) applies to exclude liability from mental harm unless it was foreseeable in the circumstances that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken.

58. In Tame v NSW (2002) 211CLR317 the High Court held that there are no special limitations on liability for pure mental harm in addition to the general requirements of foreseeability. The central enquiry being, whether, in all of the circumstances, the risk of the Plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable in that the risk was not farfetched or fanciful.

59. The Claimant submits that a motor vehicle crashing into her home with an absconding driver in which the Claimant and her family of 5 children were living in at the time, rendering the home uninhabitable, is clearly an example of the potential for psychiatric injury for a person of normal fortitude.

60. A Claimant must prove on the balance of probabilities that the Insured’s negligence materially contributed to her injury. Mr Quickenden submits that once the Plaintiff has discharged that onus, there is an evidential onus on the Defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that these conditions in their nature progression would have produced similar symptoms.

61. Mr Quickenden further submits that if the Plaintiff is unable to satisfy the evidential burden, the Court may reduce the Plaintiff damages for contingencies to no greater extent than in the ordinary case, if, however, it appears that there is a real chance that the Plaintiff would have developed similar symptoms from a natural condition attaching to the Plaintiff the Court will make a great reduction than normal to reflect this increased chance. This is how the cases of Malec v JC Hutton Pty Ltd [1990] 169 CLR 638, Watts v Rake [1960] 108 CLR 158 and Purkess v Crittenden [1965] 14 CLR 164 are reconciled.

62. The Claimant further submits that the law puts the evidential onus on the Insurer to disentangle traumatic events to conclude the compensable injury has not materially contributed to the Claimant’s incapacity. The Claimant submits that the Insurer has failed to do this.

63. The Claimant submits that the issue is whether the subject accident materially contributed to a psychiatric injury. The issue is also whether the injuries and disabilities from the subject accident materially contributed to the Claimant’s incapacity. For example, the law is not that the subject accident-related psychiatric injury was the sole cause of disability or incapacity.

64. Mr Quickenden submits that the Claimant gave adequate histories, commensurate and consistent with her mental ill health and that she should not be doubted on the reliability or credibility for any lack of any details in respect to these traumatic events. Further that every medical expert had the substance of the Claimant’s pre and post-accident health.

65. I will give further consideration to the issues of causation under the sub-heading of injuries and disabilities.

66. With respect to the Claimant’s marriage breakdown Mr Quickenden submits that it is not significantly relevant to my assessment given that the Claimant is not entitled to claim non-economic loss.

WHAT IS THE NATURE AND EXTENT OF THE CLAIMANT’S INJURIES?

67. Both parties agree that there is no claim for physical loss or damage. The claim is solely for mental harm.

68. Claimant firstly relies on the expert opinion of Dr Robert Gertler whom the Claimant saw in February 2019. He took a history that included the counselling she received some 15 years before following the death of her infant son and undergoing treatment for post-natal depression following the birth of her first daughter 20 years ago. He noted that there was no other history of psychiatric disturbance other than a chronic back complaint. He was given what appears to me to be a correct history of the subject accident and that she and her family had no accommodation for several months following it. She also provided a history that she was finding it difficult to work and eventually was unable to deal with certain accusations which had been made by her employer following which she lost her employment. He also took a history that her relationship with her partner of several years was affected such that it deteriorated leading to increased stress within the home and eventually that relationship ended. I do not believe that that is an accurate history of the loss of her relationship with Swain.

69. Dr Gertler provided a diagnosis of adjustment disorder with depressed mood where depression is of moderate intensity. Using PIRS he assessed the Claimant as having 15% whole person impairment.

70. The Claimant also relies on the expert report of Dr Marcelo Rodriguez Psychologist who reported in February 2022.

71. He recites a history of the accident which includes the house being rendered uninhabitable and how for several months they were in alternative housing after their housing assistance application was denied.

72. She gives a previous history of her first marriage to Tim not surviving the death of their infant son some 15 years before. She also provided a history of post-natal depression following the birth of her first child. He notes her relationship with her then partner broke down because of his drug and alcohol abuse and domestic violence toward her. She found herself under stress as a single parent. Adding to her stress was the criminal and Family Law proceedings. He noted that she has had diagnoses from various Psychiatrists of depressions, PTSD, extreme anxiety, and cognitive impairment together with an adjustment disorder attributed to Dr Gertler, Dr Whetton and Assessor Fukui. He notes that therefore she continues to experience trauma, sleep disturbance, reduced productivity and psychological and behavioural changes.

73. He noted that she has many stresses in her life and barriers to progressing including that of caring for her children, returning to work, and the anxiety that that produces, and completing her University Degree without much support. These stressors are compounded by not having a large supportive family network. He noted her panic attacks from the age of 16.

74. Dr Rodrigez took a lengthy mental health history where it seems to be that the Claimant has been quite candid and accurate.

75. Dr Rodrigez concluded:

“In my opinion the combination of Ms Melleuish’s child abuse and subsequent trauma suggests that she suffers from complex PTSD … which is a serious mental health condition that can take some time to treat and for many people it is a lifelong condition. From her self-report Ms Melleuish has experienced various periods of emotional abuse. She was apparently psychologically abused and neglected by her mother. The death of her infant son, over 15 years ago, has compounded dysphoric symptoms associated with her previous trauma. She apparently experiences ongoing depression which leads to poor motivation and avoidance. She reported panic attacks since the age of 16 and has experienced over 100 panic attacks over her lifetime. In my opinion she would meet the diagnostical statistic of manual of mental health disorders (DSM 5) criteria for panic disorder. She has experienced panic attacks from a young age and continues to do so. In my opinion, the diagnosis of adjustment disorder, given the passage of time, does not encapsulate her multiple clinical complaints and symptoms.”

76. Dr Rodrigez goes on to say that the subject accident has compounded her psychological conditional with re-experiencing of the accident and worsening of her symptoms. He noted that she has endured many losses since the accident, including a relationship, her job and confidence in most areas in life. In his view her psychological injury is genuine.

77. Dr Rodrigez added that he thought the prognosis without comprehensive psychological and psychiatric treatment was guarded.

78. In my assessment Dr Rodrigez seems to have been given a full gamut of all relevant factors in the Claimant’s pre and post-accident history. It seems to me he does not attribute the subject accident as being the sole cause of her ongoing psychiatric injuries. Rather it is just another event which adds to her list of injuries in her ongoing life story.

79. In describing her current complaints he states:

“Although there have been some improvements since the MVA in 2015 Ms Melleuish experiences ongoing mood dysregulation and struggles to find strategies to manage them. She exhibits clinical features of personality defragmentation, leading to pervasive helplessness, low self-worth, feeling judged, unappreciated, and manifests persistent depressive symptoms. She has become avoidant, panicky and agoraphobic, which has been found in PTSD patients … she experiences emotional numbness, which is being found in individuals exposed to MVAs. … emotional numbness is very common in PTSD patients. Despite the passage of time, her DASS scores suggest moderate clinical symptoms of depression which are common in individuals with PTSD.”

80. Both the Claimant and the Insurer also rely on the report of Dr Peter Whetton Psychiatrist qualified on behalf of the Insurer.

81. In his first report dated June 2019 Dr Whetton describes the accident and the resultant loss of accommodation.

82. He does note the history of Ms Melleuish’s dysfunctional family life and her own relationship history. Dr Whetton describes Ms Melleuish as being in a state of shock with the development of some symptoms of anxiety after the accident, but he noted that was in the months subsequent to this that her life became increasingly disorganised and broken. As a consequence of this she required treatment by way of psychological counselling.

83. His diagnosis is that from the history given in the months following the accident and extending over the following 1 to 2 years she would have warranted a diagnosis of adjustment disorder with anxiety and depression. Symptoms of possible acute stress disorder may have been present initially however these have resolved. His current diagnosis is residual symptoms of a modest chronic adjustment disorder with depression. On the PIRS scale he allocated 4% whole person impairment. He opined that the accident was the cause of her psychiatric injury. He noted how Ms Melleuish describes the “ripple effect” being the consequences of the accident, the disruption in her life, family and employment and her reported struggle to maintain her life stability with a resultant chronic low grade depression. He notes that her current disablement is modest and she is able to function in most areas of her life. His diagnosis relates to the accident and the subsequent disruptions and “ripple effects” thereafter.

84. As both parties observe Dr Whetton has also been the most recent expert to examine and report on the Claimant in his report dated 20 January 2023.

85. In this second report Dr Whetton describes the history provided to him by the Claimant of the last 3½ years. He noted his previous diagnosis and that at the time he examined her she had gone into significant remission warranting at that time the diagnosis of modest adjustment disorder with depression. He then went on to say in this summary:

“Over the subsequent years she has been involved in psychological treatment and as well embarked and been successful with University studies and gaining employment. The nature of her studies in Social Science appear to particularly to have been useful to her in her recovery development. On examination on 18/01/23 she presents well and is fully functioning. There remains an underlying vulnerability resultant from her past history including the accident and she expressed uncertainty whether she will be able to continue to cope as well as she is at present. At this stage, she presents with mostly modest symptoms and the previously diagnosed adjustment disorder is in remission.”.

86. Dr Whetton refers to a chronology which he describes as “chronology of pre-accident and post-accident clinical and forensic histories”. In his closing comments he states “it is noted that the chronology is long and detailed. It would be difficult in the course of an examination for a Claimant to provide this extent of detail”. It seems to be that I was not provided with this same chronology as it does not appear to be the same chronology provided at R2 in the Insurer’s Schedule of Documents provided to me. Therefore, I am unable to discern whether Dr Whetton understood the nature, if relevant, of the Criminal Court proceedings and the Family Court proceedings relating to her former partner Jesse Swain.

87. I do note however that Dr Whetton refers to her son now aged 9 being diagnosed with ADHD and under medication prescribed by a paediatrician and that her daughter now aged 18 has finished her HSC and has problems in the area of anxiety and depression and is having psychological help. Dr Whetton at least knows that this daughter is having her own mental issues although may not be aware that their source was Jesse Swain.

88. Both parties also rely upon the certificate and report of Assessor Atsumi Fukui dated June 2021.

89. Dr Fukui describes the previous history provided to me which includes being treated for anti-depressant medications, for panic attacks as a teenager, post-natal depression following the birth of her first child at age 23 and experiencing similar symptoms following subsequent pregnancies. He also noted the dysfunctionality of her own family life and then describes the subject accident. He describes her as being homeless for the 3 months following the accident and that this was the “start of hell” with the impact of the accident having a “ripple effect” that has taken away her quality of life. He noted how she had to stay with various friends and family as well as staying in their trailer. “The disruptive nature of their life impacted on Ms Melleuish’s ability to function effectively at work, and she lost her job which she loved.” She gave symptoms of being jumpy around loud noise and cars and was hyper-vigilant and often felt panicky. She became over-protective towards her children and was stressed and exhausted from having to co-ordinate her children’s schooling and care.

90. He noted that her ex-partner started using alcohol and drugs to cope with the stress and she was exposed to domestic violence and consequent separation. This history may be inaccurate as I understand her ex-partner previously abused alcohol and drugs and was abusive toward her. He then described how she had just been through the Family Court and now has full custody of her son and no contact with her ex-partner. He then states, “Ms Melleuish also described a number of intervening problems which has resulted in other losses and financial burden which she attributes to the impact of the accident”.

91. It is difficult to assume the full extent of what the number of intervening problems could have been but presumably it did not include the sexual abuse of her daughter by her ex-partner. Surely this would have involved at least a separate paragraph of discussion.

92. Assessor Fukui diagnoses chronic adjustment disorder with depressed mood and that these injuries were caused by the subject accident. He too attributes 4% WPI using PIRS. I note that Assessor Fukui did have the benefit of reading Dr Whetton’s first report as well as the report of Dr Gertler.

93. In my assessment the experts were provided with an appropriate history. All were cognisant of the fact that the Claimant had a disruptive earlier life. Her parents separated at age 2 and her mother had multiple partners and moved so often that the Claimant went to some 13 different Primary Schools and 4 different High Schools and did not complete her secondary education. She suffered panic attacks for at least 12 months from the age of 16 and each expert was made aware of her post-natal depression with her first pregnancy if not all of the others. They all were provided with a history of the death of her infant son which led to the dissolution of her first marriage to Tim.

94. Not all of them may have been provided with how abusive her relationship with her third partner Jesse Swain was prior to the accident but all seem to be satisfied that she was a vulnerable person at the time that it occurred.

95. All experts seem to be confident that her description of the “ripple effects” in her life following the accident caused by her loss of accommodation, loss of her job and disruption to her custodianship of her family was as a result of the accident. Underlying their opinions though is the fact that it was not the sole reason that she suffered a psychological injury. It is really best described by Dr Whetton when he states in conclusion after his January examination:

“At this examination, Ms Melleuish presents as a well-functioning individual, optimistic about her future and working full-time. Given her past history of trauma and the disruption of the last several years there remains an element of vulnerability but at this point does not impact upon her. The background of trauma and adversity led her to treatment at different times. The MVA destabilised her losing the security of her home. She managed to continue the care of her children and studied and has now gained a substantial position. With her background there will still be a vulnerability however at this time is fully functioning”.

96. I endorse those comments and with it endorse Dr Whetton’s diagnosis of modest adjustment disorder.

PAST ECONOMIC LOSS

97. The Claimant submits that prior to the accident she had a good work history particularly having regard to her family commitments and the various life events that she endured prior to the accident such as her 3 intimate partners, her depression and physical health. Despite that the Claimant’s submits she maintained her earning capacity for many years. She ceased employment within 3 months of accident which contradicts that good work history, it is submitted.

98. After losing her job in June 2015, 3 months post-accident, the Claimant went on full Centrelink benefits. The Claimant further submits that her loss of employment for misconduct was materially contributed by the injuries the Claimant sustained in the accident.

99. The Claimant relies on the report of Dr Whetton expert Psychiatrist qualified by the Insurer where he states:

“With regards to her employment, she pointed out here that she had worked there with the organisation for some 6 years but 3 months after the accident, she was sacked from her job. She believes that this was an unfair dismissal. She said that in the months after the accident she considered that she did not have the energy or the resources to cope as usual and her ability to attend to aspects of her work was being criticised … her state of stress she said was affecting her functioning overall in her life and apart from work she said that she was stressed, exhausted and tired. Ms Melleuish said that she had always been a resilient person however she was not caring for herself as she normally would and states that she struggled with the repercussions and the “ripple” effect of the accident and the impact on her life …”

100. Experts qualified by the Claimant, Dr Gertler Psychiatrist and Dr Rodriguez Psychologist, also support the Claimant in that she lost her job and did not dispute her dismissal because of her capacity to work and to appeal her dismissal was due to the intrusive nature of the trauma.

101. The Claimant submits that at no point does any qualified expert dispute that the injuries received in the accident materially contributed to the Claimant losing her job.

102. The Claimant further submits that given that the Claimant could not manage part-time work she then proceeded to improve her capacity and mental state by undertaking part-time study. Her physical ill-health with respect to her neck and gall bladder may have delayed her entry into the workforce however not to any significant extent.

103. The Claimant submits a Schedule of Past Economic Loss based on the following table:

49 weeks between 1 July 2015 (date of dismissal) to 15 June 2016.         $16,161

326 weeks from 16 June 2016 to 7 November 2022 (commencement of part-time

work)   $234,720

7 November 2022 until 27 February 2023 (full-time work)                    $0

1 March 2023 to 29 May 2023 – 12 weeks of earned loss per week of 2 days.  -$4,968

Sub Total   $255,849.00

104. The Insurer submits that the Claimant was dismissed from her employment on 16 June 2015 for misconduct which was unrelated to the accident.

105. I note that she obtained employment in November 2022 working 21 hours per week and has since increased her hours working in another role for a period before returning to her usual 21 hours per week and that she has recently been promoted to full-time work.

106. The Insurer submits that the Claimant’s Scheduled Claim is not supported by the evidence. They say that there is no evidence that she ceased work due to accident-related factors at any time.

107. They note that there is a range of factors which causes the Claimant to remain out of employment from June 2015 to November 2022 none of which related to the accident. These include the following:

· The Claimant’s pre-accident psychiatric state.

· Her relationship breakdown.

· Domestic violence and her Victims Compensation Claim.

· Issues with her children (her son’s ADHD and abuse afflicting her daughter).

· Physical injuries including lumbar spine symptoms, injuries to her knees, hip, shoulder, and surgery to her neck.

· Studying a Diploma in Community Services from 2016 to 2018.

· Studying a University Degree from 2019 to 2022.

· Her responsibility as sole carer for 4 children.

108. The Insurer submits no allowance should be made for past economic loss.

109. The Insurer submits further that having regard to the Claimant’s pre-accident tax returns her annual net income from Central Coast Living at the time of the accident was approximately $546.60 net per week and not the $650 net per week submitted by the Claimant. In the final submissions made by Mr Quickenden and in his oral submissions the Claimant accepted the rate of $546.60 net per week.

110. The Claimant has demonstrated that she has been able to continue in her employment prior to the accident despite her pre-accident psychiatric state, relationship breakdowns, domestic violence, and some physical injuries.

111. In my assessment but for the accident the Claimant would have studied full-time for her Diploma in Community Services and her University Degree and further that but for the accident she would also have had to deal with the breakdown of her relationship with Jess Swain, her sons ADHD and Mr Swain’s abuse of her daughter and its consequences. But for the accident she would also have had to deal with her neck surgery and gall bladder removal, and deal with any financial impact from the Covid-19 pandemic.

112. It is therefore not possible to assess the Claimant as having almost 400 weeks of loss of income arising out of the subject accident.

113. It is not possible to calculate any sum for past economic loss with precision. I do accept that as a result of the accident she did suffer some loss from June 2015 to the present day which I assess to be $100,000. I note that such a figure equates to about a loss of $250 per week average, which also equates with my reasoning.

114. I make no allowance for superannuation as that is included in that lump sum assessment.

FUTURE ECONOMIC LOSS

115. The Claimant submits that I should make an allowance of an ongoing loss of $414 net per week given that she has a further 22 years of working life.

116. Mr Quickenden submits that it is unrealistic that the Claimant’s mental health condition will not have an impact over the balance of her working life and that she has satisfied Section 126 criteria because the probability is that the Claimant will waiver between full-time and part-time employment with periods of unemployment materially contributed to by her mental ill-health caused by the accident.

117. Mr Quickenden submits that the Insurer’s own expert given his finding that she has a current diagnosis of residual symptoms of a modest chronic adjustment disorder with depression that “there will be a need to assess her ability to cope with full-time hours and as well fitting this in with her family life and demands …”.

118. He goes on to say

“There remains an underlying vulnerability resulting in her past history including the accident and she expressed uncertainty as to whether she will be able to continue to cope as well as she is at present … her injuries have significantly resolved. There remains an underlying vulnerability and sensitivity which would be expected but at this stage not significantly impacting on her ability to function … the prognosis is good and Ms Melleuish has made a good recovery thought some underlying sensitivities may remain … the ongoing treatment with the psychologist is reported to be useful in her recovery and stabilisation and it is recommended that this should continue to maintain stability as she transitions to full-time employment.”

119. The Claimant submits that both Dr Gertler and Dr Rodriguez express concerns as to any permanent recovery which is likely to impact on future functioning and therefore employment.

120. The Claimant also submits that MAS Assessor Fukui also expresses concerns which are likely to impact on the Claimant’s function and therefore ability to be employed full-time:

“Her psychological symptoms have improved with the passage of time but have persisted. She continues to experience residual symptoms which are unlikely to fully resolve … she continues to experience mild fluctuating depressive symptoms which has been chronic and residual anxiety symptoms and tendency to ruminate.”

121. The Insurer submits that it is unclear how the loss of $414 net per week is calculated given that her current pay slip shows her current earnings of $1,008 net per week.

122. I agree that there is no calculation that I can make based on an alleged loss of $414 per week.

123. Ultimately the Insurer submits that if I was to find that the Claimant has lost earning capacity it should be a modest amount of no more than $5,000.

124. In my assessment the Claimant has lost some earning capacity as detailed by Dr Whetton, the Insurer’s expert, and I agree a modest amount is all she is entitled to which I assess at $10,000.

PAST TREATMENT

125. The Claimant submits that I should allow past treatment expenses as an amount of $3,040.05 charged to Medicare, Section 83 expenses, and an amount of $5,000 said to be past treatment paid for by the Claimant.

126. The Insurer submits that the treatment listed in the Notice of Charge relate to attendances that are unrelated to the subject accident. They also note the Insurer has not made any payments under Section 83 and that the amount of $500 should not be allowed as it has not been adequately particularised and I was not provided with any invoices or receipts.

127. I was given little or no assistance otherwise by either party. The Insurer has provided me with a Medicare / PPS Report at R17 and R31 in their bundle from which it is impossible to ascertain what treatment might relate to the Claimant’s injuries received in the subject accident or for other consultations and expenses. I was not provided with a copy of the expired Notice of Charge.

128. The Notice of Charge, if provided, would have indicated the treatment the Claimant alleges she received for injuries arising out of the subject accident. That is something I am aware of due to the relevant legislation. The Insurer’s submission is merely a blanket denial which is of no assistance to me given my findings that the Claimant did suffer some injuries as a result of the subject accident for which she would have required treatment. I have no way of ruling some expenses in or out but I am mindful of the fact that some of these expenses are properly attributable to the CTP Insurer and should not be a charge on the Commonwealth. Therefore, I allow a sum of $2,000 for past treatment. I make no allowance for the $500 on the basis that there is no invoice or receipts to support that claim.

FUTURE TREATMENT EXPENSES

129. The Claimant seeks the costs of attending a Psychologist, Psychiatrist and accompanying medication being $60 per week for life.

130. The Insurer submits that such a claim is not supported by current evidence. There is no evidence that the Claimant will require psychiatric or psychological treatment for life. Dr Gertler supported counselling sessions every 2 to 3 weeks for a closed period of 2 years only and that this period has now expired.

131. Dr Rodriguez treatment recommendations should not be accepted. His treatment pre-supposes complex PTSD and Panic Disorder for which he implicates multiple causes that are not all accident related.

132. The claim for medication is not supported by the evidence. The Claimant is not presently taking any psychiatric medication and has no interest in doing so given her past experience.

133. The Insurer prefers the evidence of their own Psychiatrist, Dr Whetton who assessed the Claimant most recently in January 2023. Dr Whetton recommended continued treatment with a psychologist which he attributed to both the subject accident and trauma from previous and unrelated life events.

134. The Insurer submits that given Dr Whetton did not have all of the correct history that Dr Whetton’s opinion is limited.

135. I note that the Claimant is currently undergoing psychological consultations with Mr Gorczynski and that she intends continuing with the treatment.

136. In my assessment further psychological consultations for a closed period of 2 years at $50 loss per week is appropriate which I calculate to be $5,200 in total.

ASSESSMENT OF DAMAGES SUMMARY

137. I assess the claim as follows on the findings set out above:

Economic losses

· Past loss of earnings $100,000

· Future loss of earnings $10,000

· Past treatment (incl. s 83 payments) $2,000

· Future treatment $5,200

TOTAL DAMAGES ASSESSED $117,200

COSTS AND DISBURSEMENTS

138. I assess the Claimant’s legal costs and disbursements in accordance with s 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet for which there was no dispute.