Nguyen v AAI Limited t/as AAMI
[2022] NSWPIC 300
•10 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Nguyen v AAI Limited t/as AAMI [2022] NSWPIC 300 |
| CLAIMANT: | Hong Nguyen |
| INSURER: | AAI Limited t/as AAMI |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 10 June 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; claim for damages; no issue of liability or contributory negligence; Claimant not entitled to damages for non-economic loss; claims made for past and future treatment, past and future earnings, earning capacity and past and future care; Claimant sustained soft tissue injuries and an adjustment disorder due to her injuries and her son’s catastrophic injury (brain injury); Claimant had no treatment for three years before assessment; Claimant a nail technician with her own business before the accident; discrepancy in earnings between claim form and other documents; limited documentation about business available; Held– economic loss unable to be calculated with any precision as a result therefore award by way of a buffer or cushion allowed for both past and present; treatment allowed in the past and a small amount for the future; care allowed for limited period after the accident; damages of $194,000 awarded with costs; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 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 $194,534.85. 2. The amount of the claimant’s costs in the matter is $37,707.55 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
Background
On 14 March 2017, Ms Hong Nguyen was involved in an accident which had devastating consequences for her family. The claimant was a front seat passenger in a vehicle driven by her partner John. Her son Ryan was in the back. A vehicle coming in the opposite direction crossed to the incorrect side of the road and a head on collision occurred. Ryan sustained a catastrophic brain injury and is a full-time participant in the Lifetime Care and Support Scheme.
Ms Nguyen made a claim against AAMI the third-party insurer of the other vehicle. AAMI has admitted breach of duty of care. There is no issue about liability in the claim.
Both John and Ryan made claims under the Motor Accidents Compensation Act 1999 (MAC Act) and I was advised early on that both of those claims have settled.
At the time of the accident the claimant was 27. She is now 32. Ryan is nine years of age. Two years after the accident the claimant gave birth to her second child Sophie who is now nearly four. Sophie is John’s child, Ryan is not.
Ms Nguyen has been assessed by Medical Assessor Kumar who determined her physical injuries resulted in a 5% whole person impairment (WPI) and by Assessor Jones who certified her psychological injuries attracted a WPI of 6%. The claimant accepts she has no entitlement to non-economic loss.
Ms Nguyen makes a claim for past and future loss of earnings and earning capacity, past and future treatment and past and future care. A summary of the respective positions of the parties is provided below.[1]
[1] The claimant’s figures come from an updated schedule of damages identified as document AD16 on the Commission’s electronic file. The insurer’s figures are set out in updated submissions found on page 128 of the insurer’s bundle.
Head of damage Claimant Insurer Past treatment to be advised $15,924.85 Future treatment $74,452 nil Past loss of earnings
Past superannuation
$104,400
$11,484
nil Future loss of earning capacity
Future superannuation
$260,491 or $250,000
$31,258
nil Past gratuitous care $78,300 nil Future care $238,248 nil Total $798,633 $15,924.85
Procedural history
Ms Nguyen referred her claim to the Personal Injury Commission (the Commission) for assessment on or about 13 May 2021. The proceedings were allocated to me and I have held several preliminary teleconferences in order to ready the matter for assessment.
The matter was first listed for hearing on 31 August 2021 however that date was vacated because the claimant wished to obtain an occupational therapist’s report in relation to her past and future care needs.
The matter was then listed for hearing on 17 March 2022 however the hearing could not progress on that date due to the insurer’s legal representative being unwell.
The matter was again listed for hearing on 26 May 2022. The claimant gave evidence with the assistance of an interpreter (available by phone) and the parties made final submissions. I was advised after the assessment conference that the parties had agreed on:
(a) the damages to be awarded for past treatment expenses being $16,034.85
(b) some costs issues including:
(i)disbursements incurred in connection with the claim totalling $12,848.65 inclusive of GST
(ii)allowance shoulder be made for four conferences at $300 each and
(iii)the cost of an interpreter before the assessment conference.
EVIDENCE[2]
[2] Both the claimant and the insurer have provided bundles of documents before the March 2022 hearing.
Claim form and treating evidence
The police report[3] was completed by Senior Constable Jill Dor who states that a silver Honda Accord travelling north was swerving across the road and drifted across double unbroken lines colliding with a silver Honda CRV travelling south. A third vehicle was involved after the initial impact. The claimant, her partner and her son were in the Honda CRV.
[3] Page 17 of the claimant’s bundle.
The ambulance records[4] note that the claimant was complaining of abdominal pain[5] and pain in the left elbow and forearm. Ms Nguyen’s elbow had some abrasions with some reduced grip strength in the hand but otherwise there were no obvious fractures and no neck, chest, head or back pain.
[4] Page 92 of the claimant’s bundle.
[5] At paragraph 43 of her first statement the claimant says she was not aware she was pregnant. Therefore, there is no mention in the ambulance report of Ms Nguyen being pregnant at the time.
The claim form is signed as true and correct and dated 28 April 2017[6]. The claimant says the police attended the accident scene and she was taken away by ambulance to Westmead Hospital where she was admitted but discharged the next day.
[6] Page 9 in the claimant’s bundle.
She identifies her injuries as a whiplash with back strain, right shoulder and right thumb injury, a chest injury with abdominal injury and miscarriage and a bruise on her left shin. She also says she sustained an adjustment disorder.
The claimant says at question 26 that she was self-employed as a nail technician in a business called Luxury Nails Design in Nowra and that before tax, she was earnings $4,000 - $5,000 per week. She says she has had time off work but had returned to work with restrictions. She nominates herself as the contact person at that business.
At question 23 Ms Nguyen identifies her general practitioner (GP) as Dr Tom Lieng of 177 Elizabeth Drive, Liverpool. The medical certificate was completed by Dr Tom Lieng on 24 April 2017 (although the certificate suggests this was following an examination dated 10 July 2017). He certified the claimant as unfit to work until 24 April 2017. In answer to the question “how long has the patient attended the practice?” he has answered “today”. This suggests Ms Nguyen was not a previous patient of the practice. He lists Ms Nguyen’s injuries as follows:
(a) whiplash associated disorder, thoracic and lumbar spine ligamentous strains;
(b) right shoulder impingement and a right thumb MCP joint contusion;
(c) chest injury;
(d) abdominal injury and miscarriage;
(e) bruising left shin, and
(f) adjustment disorder.
A Medicare history statement dated 21 May 2020[7] shows:
(a) no consultations with a Dr Lieng or anyone else at a practice at Elizabeth Drive in Liverpool;
(b) no attendances for accident-related treatment on 24 April (the date of the certificate attached to the claim form) or 10 July 2017 (the date Dr Lieng says he examined the claimant);
(c) an attendance on a GP in Cabravale (Dr Tran) on 16 March 2017 and a corresponding pregnancy test following which there was a further consultation on 23 March 2017;
(d) two attendances on a doctor in November 2017 (Dr Brumby in Macquarie Fields and Dr Tran) and a corresponding pregnancy related investigation;
(e) attendances on Dr Tran in May and September 2018;
(f) what appear to be pregnancy blood and other tests and related attendances during 2019 and February 2020, and
(g) the development of a mental health treatment plan in September 2019.
[7] Page 27 of the claimant’s bundle.
The insurer has made payments totalling $15,268.40 for the following treatment[8]:
(a) Medico-legal solutions - 16 May to 3 August 2017 (five treatments),
(b) TLC physiotherapy – three payments for sessions on 6 July and 12 September 2017,
(c) Vincentia Medical Centre – from 6 September 17 – 11 February 2019 (eight attendances),
(d) Shoalhaven Rehabilitation Solutions - 11 September 2017 to 21 May 2018 (six services provided), and
(e) Dr Laura Hedayati – psychologist from 30 August 2017 to 26 June 2018 (20 attendances).
[8] The list of payments is found at page 117 of the insurer’s bundle.
There is no hospital discharge summary and no reports or records from any of the claimant’s treating doctors or allied health providers in evidence before me[9]. There is a notice of commencement of physiotherapy from May 2017[10] and a psychological counselling plan from September 2017[11].
[9] Dr Kumar and Ms Piebanga seem to have records from Dr Lieng’s practice, notes from the psychologist and physiotherapy notes but these have not been included in the bundles lodged by either party.
[10] Page 81 of the claimant’s bundle.
[11] Page 73 of the claimant’s bundle.
The legal representatives for the claimant confirmed at the assessment conference that the claimant has not sought any treatment for her accident-related injuries since 2019.
There is a rehabilitation report dated 3 August 2017[12] following a case conference discussion with Dr Pham, Ms Nguyen and Ms Barry, an occupational therapist. The claimant was reporting changes in self-care such as washing her hair once a week and having it cut short to make it easier to look after. She refers to an aunty and uncle preparing meals, cleaning and assisting with transport.
[12] Page 78 of the claimant’s bundle. Ms Piebanga summarises additional documents from Ms Barry which have not been included in the material placed before me.
Ms Barry notes that the claimant’s mood is “the area of greatest need for therapy and support”. Ms Barry documents the claimant’s lack of energy and her focus on her son’s needs and the adjustment required to deal with Ryan’s behaviour (including his poor sleep patterns).
Claimant’s medico-legal reports
Dr Yuk Kai Lee
Dr Lee provided a report dated 23 May 2018[13]. He only had before him, the medical certificate from Dr Lieng and the Ambulance report.
[13] Page 67 of the claimant’s bundle.
He has a report from the claimant of two miscarriages, one immediately after the accident and one six months later. He takes a history of numbness, neck pain and pain in the right thumb, both shoulders and lower back. The claimant says she has neck pain every day with back pain and pain in her shoulders and left thumb.
He says, “she was not working at the time of the accident”. He has a history of Ms Nguyen’s separation from her husband and that she lives in shared rental accommodation. She reported she could not go to the gym or do the housework and relies on her flatmates.
He examined her neck where there was not much tenderness but pain at the end of movements. She was tender over the shoulders and had some restriction of movement. She had full range of motion in the right hand, and she had mild impairment to her lower back.
He diagnosed soft tissue injuries to Ms Nguyen’s neck, back, shoulders and right thumb.
He noted she had been offered physiotherapy but did not have time to have it and recommended further physiotherapy and exercise therapy. He thought she would need continued domestic assistance for six hours a week.
He considered her injuries were stable and assessed her WPI at 19%. He thought she could work as a nail artist but only part time and only for a restricted number of clients.
Dr Thomas Oldtree Clark
Dr Clark prepared a report for the claimant’s solicitor dated 6 February 2019[14]. As with Dr Lee, Dr Clark had only Dr Lieng’s medical certificate and the ambulance report. He reports the claimant was momentarily unconscious and that as a result of the accident she suffers from anxiety as well as pain in the neck, upper back, right thumb, right shoulder and chest. She complained to Dr Clark of mood swings, broken sleep, loss of concentration and forgetfulness. She was concerned about her ability to have further children. She expressed concern about her son.
[14] Page 43 in the claimant’s bundle.
He has a history of the claimant attending Dr Lieng “who, she said, is excellent”. Later in the report he records her attending her GP who is “good and explains a lot to her”.
She reports that she has a brother in Sydney but does not like to contact her family because she “has a deep and saddening shame”. Her parents came from Vietnam during the “acute phase” of Ryan’s injury, but they have returned.
The claimant is reported to still be with her partner (John) but they are having problems. Dr Clark reports however that they are trying for a baby.
She was seeing a psychologist but said it did not help. She reported flashbacks and has bad dreams. She has suicidal thoughts. She said she has not seen a psychiatrist, but she was given antidepressants which she did not like.
Dr Clarke diagnoses a Major Depressive Disorder which he suggests would normally take two years to recover. He also considered she had post traumatic symptoms. He suggests the condition is permanent and stable and she has reached maximum medical improvement. He considered she was unfit for work and required treatment. He assessed her as having a 19% WPI with an additional 1% for the effects of treatment (attendance on a psychologist). He thought she needed to see a psychiatrist for further treatment.
Bryan Phan
Mr Phan an occupational therapist with Fitcare provided a report dated 30 September 2021 to the claimant[15]. The report was completed by video link due to the pandemic restrictions in place.
[15] Page 254 of the claimant’s bundle.
Mr Phan records that the only treatment she had was some physiotherapy and psychological counselling but that she has had no other treatment due to Covid.
While she was separated from her partner (John) she was residing with John’s mother and her younger brother.
Ms Nguyen complained to Mr Phan of ongoing right shoulder pain and restricted movement, ongoing lumbar spine pain, restricted neck movement and pain, low mood, anxiety and sleep problems. She did not complain of any current issues with her hand or thumb.
The claimant says she was taking Panadol daily and sleep medication, the name of which she could not remember.
Mr Phan records a history that the claimant “has not returned to work for about nine months”. It is not clear whether this was nine months after the accident or for example some other time such as nine months after Sophie’s birth.
Mr Phan states that the claimant lived in a rented three bedroom, two bathroom house and relies on her brother for the gardening and lawn maintenance. She says she relies on her mother-in-law for cooking larger meals in particular soups. Her mother-in-law helps with larger pots and pans, cleaning and laundry.
Mr Phan notes that the claimant’s mother-in-law has provided 20 hours a week of gratuitous care which included childcare and that the claimant requires 12 hours of domestic cleaning per week in the future including laundry and eight hours of childcare.
He recommended she have an occupational therapy home program as well as a physical conditional program with an exercise physiotherapist and referral to a physiotherapist and pain specialist.
Insurer’s medico-legal reports
Dr Murray Hyde Page
Dr Page has provided a report dated 7 November 2018[16]. He takes a history of the claimant having two miscarriages (one soon after the accident and one some months after the accident). He suggests the claimant and her husband have split up and she now lives with her brother and a female friend.
[16] Page 12 of the insurer’s bundle. The claimant attended with an interpreter and a friend.
He noted “major” psychological issues for which the claimant was having treatment including antidepressants and weekly counselling sessions. He noted the claimant’s complaints of neck pain and thoracic paid with shoulder symptoms.
She apparently did light domestic tasks with cooking and cleaning but she was avoiding shopping. She said she relied heavily on her friend and brother.
He records her having difficulty at work and that she has put her business “on hold” as she was busy caring for her son. He suggests she has not really returned to work and the business is being run by others.
He examined Ms Nguyen’s neck and thoracic spine and noted she had some restriction of movement in the neck, some stiffness in the shoulders with restriction. There were no neurological symptoms in either her neck or mid back and there was no muscle wasting.
Dr Page did not take a history from the claimant of any lower back problems so did not examine her lumbo-sacral spine.
Dr Page diagnosed soft tissue injuries to Ms Nguyen’s neck and mid back with secondary shoulder stiffness and depression. He thought her physical symptoms would improve with exercise and physiotherapy but that her injuries had not yet stabilised. He noted she had time away from her business caring for her son but that she would be fit for light duties for a further 12 months. He noted her psychological issues and physical symptoms would also have prevented her working for the first 12 months.
He estimated six hours a week of domestic assistance would be required for a further 12 months.
Dr Page saw the claimant again on 22 April 2021[17]. At that time the claimant was still alleging ongoing neck pain and headaches. She also asserted ongoing shoulder stiffness ongoing right thumb pain and some minor low back pain.
[17] His report is dated 2 May 2021 and is found at page 23 of the insurer’s bundle.
The claimant reported she was having no ongoing treatment other than Nurofen.
Dr Page has a record of the claimant living with her brother and a friend and her mother-in-law. She is said to have arrived from Vietnam and stayed due to lockdown and the claimant relies on her mother-in-law for many domestic tasks.
Dr Page noted that since he saw her, she had another child and that she was receiving the government’s carer payment to look after her children.
Ms Nguyen was said to still own the nail salon but that her work has been cut back during Covid. In the past there were three technicians employed but now there is only one. The claimant says she cannot work as a nail technician because of a tremor and a painful right thumb and difficulty sitting for a long time. She works 10 hours a week as a receptionist.
Dr Page records:
“I observed [her] throughout and she sat comfortably during the assessment and with all movement she was moving very comfortably and freely. At no time did she appear to have any significant pain or discomfort.”
Dr Page noted Ms Nguyen had a reasonably full range of neck movement with no radicular symptoms although there was pain radiating to the top of her shoulders. There was no radiculopathy and a full range of movement in the lumbar spine with no evidence of radiculopathy in the lower limbs. Dr Page noted full range of motion in the shoulders and no evidence of rotator cuff problems.
Dr Page considered the claimant had made a good recovery. Although she complained of pain, she had a full range of movement. He considered there was significant improvement since he last saw her and in particular recovery of any left shoulder injury with no stiffness and a full range of movement.
He considered the claimant needed no further treatment.
Dr Page said he carefully questioned Ms Nguyen about her duties as a nail technician. He said she did not have a right thumb or hand problem that would affect her ability to work. He did recognise that she had ongoing mental health injuries which were affecting her ability to work and undertake domestic duties.
Dr Graham Vickery
Dr Vickery provided a report dated 24 November 2020 after an examination a month earlier[18].
[18] Page 30 of the insurer’s bundle. The claimant attended with the assistance of an interpreter.
The claimant reported hating everything and was depressed about her life and she “thinks about her lost son”. She has poor sleep and takes Melatonin.
The claimant said she had no income from her nail business and was living on the carer’s payment.
The claimant reported difficulties in her de-facto relationship because her mother-in-law thought she was not a good mother [to her daughter] because “I cared for my son too much”. She said her parents blamed her for her son’s injury and so she has no contact with her family.
Dr Vickery observed:
“Ms Nguyen would wait for some time prior to responding to my questions and she would not expand when responding to my questions as ‘I have to be very careful what I say’ which made the assessment process stilted and somewhat artificial in relation to the lack of spontaneous self-disclosure due to censoring her replies.”
Dr Vickery was of the view there were no injuries “directly” due to the car accident but because of the lack of support from her parents, her mother-in-law’s attitude to her as a parent and her son’s injuries and disabilities which have limited her social, recreational and pleasurable activities.
Ms Dawn Piebanga
Dawn Piebanga is an occupational therapist who visited the claimant in her home for 3.5 hours on 18 January 2022. Her report is dated 3 March 2022.[19]
[19] Page 42 of the insurer’s bundle.
Ms Piebanga notes under the heading “social history” that it is unclear when John has been living with her and when he has not. She notes that they have purchased a home together in April 2019.
Ms Piebanga says the claimant was well groomed and they were able to communicate. She said the interpreter arrived late and was “sent away”. Ms Piebanga said that Ms Nguyen’s mood was euthymic (normal), she was interactive with her children and frequently laughing. Ms Piebanga noted some inaccurate and some simplified details were given in answer to her questions.
Ms Piebanga took a history of the accident with the onset of immediate pain and collapse. There was also a history of immediate miscarriage and bilateral shoulder pain and neck pain. The therapist noted the claimant’s pre-accident post-natal depression which resulted in Ryan going to live with her parents for a year in Vietnam. Ryan returned to Australia six or seven months before the accident.
Ms Nguyen said she had little treatment because it was not helpful, and she spent the first three months after the accident away from Nowra at the hospital in Sydney with Ryan during the day. Ms Piebanga noted that physical examinations by medico-legal practitioners and assessors indicate fluctuating ranges of movement. The claimant said she had constant neck pain, headaches every second day, bilateral shoulder pain, left worse than right and psychological difficulties. She noted a “fraught relationship with John” and that she was a full-time carer for Ryan and parent to Sophie.
Ms Piebanga accepts the claimant sustained bruising to her chest and abdomen (resulting in miscarriage) and soft tissue injuries to her spine, right shoulder, elbow and thumb. She thought the left shoulder problems were secondary to the other injuries but not of great significance. Ms Piebanga also acknowledged the claimant’s depressed mood and stress.
Ms Piebanga’s conclusion was that the claimant may have required assistance for three months but there should be no allowance for this period because she was looking after Ryan in hospital in Sydney at the time. Ms Piebanga then expresses the opinion that from 6 June 2017 she would have expected Ms Nguyen’s soft tissue injuries to settle. Ms Piebanga does not support personal care and assistance beyond this period because the claimant’s daily routine had changed (due to Ryan’s return home) and that she required additional support and treatment for Ryan and was given that additional support by Lifetime Care and there was no evidence for her inability to contribute to domestic care tasks.
Appendix 2 to the report contains a review of the medical information with commentary. Ms Piebanga has records from the claimant’s treating psychologist and multiple reports from Ms Barry neither of which were before me.
She also provides (at page 73) a summary of Ryan’s needs which has been gleaned from the medical records as follows:
(a) serious brain injury, right sided haemorrhage, hemiparesis on the left side with weakness and frontal lobe damage with volatile emotions;
(b) self-harm behaviours and not able to self-care at 2.5 months after the accident;
(c) Ryan’s behaviour was challenging before the accident his behaviour to her is now “extreme”;
(d) five or six therapists and staff members were helping the claimant with Ryan;
(e) in February and March 2018 the family returned to Vietnam for a three week visit, and
(f) he attended child care then school with assistance however the claimant was not given extra support at home.
Ms Piebanga also provides a critique of Mr Phan’s report (at page 74).
Appendix 3 to the report contains many more details of the history provided by the claimant which has been used to form the opinions in the report itself. Some of this information includes:
(a) a history of abdominal pain and bruising, injuries to both shoulders in the accident and that the left shoulder is now worse. She says she has ongoing neck pain now and had headaches every day for the first six months;
(b) a report of an incident involving John being violent towards the claimant in a car in public. The police were called, and charges were laid. The claimant gave additional evidence about this at the assessment conference;
(c) the claimant takes sleeping medication and Panadol extra;
(d) the claimant had a miscarriage immediately after the accident and one three months after the accident;
(e) her parents came to Australia for a month after the accident and John’s mother came to stay for a month before Sophie was born (June 2019) until November 2021 but she has returned to Vietnam. While she was here she looked after Sophie and helped with the household;
(f) John is a qualified nail technician and his family have been in the industry for over 20 years;
(g) the claimant’s brother was not very helpful and had moved out the week before into a flat in Wollongong, and
(h) she and John purchased their home, in April 2019.
Appendix 3 also contains 10 pages of detailed analysis of the claimant’s movements (demonstrated and formal) functional tolerances, involvement in and restrictions of activities of daily living and childcare.
Medical assessments
Assessor Jones
Assessor Jones examined the claimant on 29 May 2019 and determined her WPI from her psychological injuries[20]. He takes a history of the claimant’s first job being at a nail salon in her husband’s business then she opened her own shop a month before the accident. He says she has not been working for about six months. She reported post-natal depression after the birth of Ryan, and she became depressed again after the accident. She was pregnant, but she and her partner had a fight and he moved to Sydney. She was receiving no financial help and living off her savings.
[20] Page 34 in the claimant’s bundle. The certificate is dated 18 Jun 2019. The claimant attended and was assisted by an interpreter.
Ms Nguyen told Assessor Jones she did little during the day, that she prepared food for herself and her son. She said she had no family as they were in Vietnam. She visited Vietnam in 2018 with Ryan. She does not mention her mother-in-law and says that she is ‘living independently as a single mother’.
He diagnosed a chronic adjustment disorder with depressed mood and anxious distress and assessed her WPI as 6%.
Assessor Kumar
Assessor Kumar examined Ms Nguyen on 20 May 2019[21] for the purposes of determining her WPI from her physical injuries. Assessor Kumar was asked by the parties to assess Ms Nguyen’s cervical, thoracic and lumbar spine as well has her right and left shoulders.
[21] Page 84 of the claimant’s bundle. His decision is dated 11 June 2019. The claimant attended and an interpreter assisted.
Assessor Kumar has a history of Ms Nguyen being separated from Ryan’s father and living with her brother and a female friend. There is no mention of Ms Nguyen’s mother-in-law or John.
The claimant is said to have reported that her main problem is her son’s brain injury and this “restricts all her activities”. She spent three months in hospital with him supporting him and did not have time to seek treatment for herself. At page 6 under “conclusions” Dr Kumar notes that the claimant is the “full-time carer for her son”.
Dr Kumar has a history of the claimant seeing Dr Lieng on 10 April 2017, having four sessions of physiotherapy and obtaining a referral for counselling. Dr Kumar notes the claimant has had no further investigations since she left hospital. He refers to physiotherapy notes which document treatment for neck and lower back pain radiating to the hip and right wrist and elbow treatment. She has since returned to her usual doctor, Dr Pham and has had rehabilitation with Complete Allied Health Care.
Ms Nguyen complained of constant pain in the neck increasing with activity leading to severe headaches. She also complained of sporadic pain in the lower back with bending. She did not complain of symptoms in the thoracic spine. She says she has no problem in the right shoulder but problem in the left since December 2018.
Dr Kumar records that Ms Nguyen is not having any treatment other than “the occasional Panadol or Nurofen which she buys over-the-counter”.
Dr Kumar noted that the claimant sat “comfortably throughout the interview and did not display any restrictions of movement in her neck” and was able to remove her clothes “without any problems and displayed good movement of both shoulders.” On formal examination he noted restriction of movement in the neck with pain, normal thoracic spine and some evidence of restriction of movement with pain in the back. and while she had normal full right shoulder movement, her left shoulder was restricted.
Assessor Kumar diagnosed soft tissue injury strains to the claimant’s neck, thoracic spine, back and right shoulder. He confirmed that Ms Nguyen had sustained injuries to her chest, abdomen and thumb but that these injuries have resolved completely. He did not accept the left shoulder as caused by the accident due to an absence of complaints or symptoms (and no mention of it in the claim form) noting that the first record of left shoulder complaint occurred in May 2018 over a year after the accident.
He found the claimant’s accident-related injuries led to a 5% WPI rating in relation to her neck injury but that her other injuries did not attract any measurable impairment.
The claimant’s evidence
Statements
The claimant’s statement is dated 1 September 2020 although it is signed and dated 9 April 2021. It is extensive and spread over 26 pages[22]. On the first page the claimant gives her details and next to “current occupation” she says she is “out of the workforce” and that her current income is the Centrelink Carer’s payment of $1,400 per fortnight. The statement is said to have been conducted with the aid of a Vietnamese interpreter.
[22] Pages 207-232 of the claimant’s bundle.
The claimant lists her occupation as divorced from Kenny Ngo and separated from her de facto husband John Pham. Ryan was born in July 2013 and is now nearly nine. Sophie was born in July 2019 and is nearly three.
The claimant says:
(a) she arrived in Australia in 2010, married Kenny but they divorced in 2013;
(b) she worked part time as a nail artist from 2014-2015 in Carnes Hill earning approximately $400 per week and it was here she met John;
(c) she earned no income in the 2014 financial year but $8,000 in the 2015 year and received single parent payments from Centrelink;
(d) Ryan lived with her parents during 2016 returning to her in February 2017;
(e) one month before the accident she and John purchased a nail salon business called Luxury Nails. She lived in Nowra, John remained in Sydney. They operated the business through John’s company J & R Pham;
(f) Ms Pham worked 52 hours a week from Monday to Friday, 9.00am – 5.30pm and on Saturdays and Sundays from 9.00am to 3.00pm;
(g) she continued to receive the single parenting or family allowance payments while working in the business but does not know if she has a superannuation fund or whether contributions were being made;
(h) she enjoyed her work and intended to work to age 70;
(i) she would serve about 20 customers a day and she documents the tasks involved in providing pedicures and manicures and she would balance the cash register and give funds to John to transfer to the bank;
(j) she experienced post-natal depression after Ryan was born and he went to live with her family in Vietnam;
(k) Ms Nguyen was not aware she was pregnant at the time of the accident;
(l) at the time of the accident, she lived with Ryan and her brother. John did not live with them but was commuting and would stay at weekends;
(m) Ryan attended day care Monday to Friday and on the weekends her brother looked after Ryan. Ms Nguyen and her brother shared domestic duties and she would spend nine hours a week cleaning, doing the laundry, changing the sheets, shopping and cooking;
(n) the accident involved two impacts – the initial impact of the vehicle which had crossed to the incorrect side of the road and then an impact from the rear by another vehicle;
(o) she stayed overnight in hospital then went to be with Ryan. She had physiotherapy, then attended Dr Lieng, then had more physiotherapy. She became depressed and struggled to sleep and saw a psychologist. She grieved over her son’s brain injury and the loss of her unborn child. Her parents travelled to Sydney to assist her;
(p) she continued to experienced mood disturbance and pain but had to return to work because the staff were not doing the right thing;
(q) she reunited with John “temporarily” and she fell pregnant in October 2018. However, they permanently separated on 29 May 2019 when she was 33 weeks pregnant. Her daughter was born on 8 July 2019. Ryan’s mother came to live with them and “cares for Sophie on a full-time basis so that I am able to concentrate fully on Ryan and his needs”;
(r) pain in her right elbow, right wrist, right thumb, chest and abdomen has resolved but she continues to struggle with tiredness and anxiety, loss of concentration and mood swings;
(s) she has not been to see a doctor or specialist because “I have dedicated all of my time to caring for Ryan”.
(t) she does not know what the future folds as “I am solely focused on my son and taking care of him for the immediate future”;
(u) she moved to a new house in March 2019 with her children and John’s mother. John’s mother takes care of Sophie while she manages Ryan’s needs “without assistance”. When Ryan is at school she rests and sleeps. She helps Ryan with bathing, eating dressing and undressing and managing his behaviour which she says is “tiring and demanding work”, and
(v) she relies on John’s mother to undertake all domestic duties and provide 24 hour care for Sophie. John’s mother spends three hours per day cleaning, doing the laundry and bedmaking. She spends 24 hours a day caring for Sophie.
John’s mother, Thoa Ha provided a “statement” dated 20 August 2021. It is not a statement as such but a list of the same activities documented in the claimant’s statement.
The claimant provided a supplementary statement dated 14 March 2022[23] in it she says:
[23] Page 262 of the claimant’s bundle.
(a) she bought the premises in Nowra and commenced renovating them in October 2015. She supervised the renovations before moving to Nowra permanently in December 2015;
(b) she opened the business in January 2016 and paid herself $700-$1500 per week before tax;
(c) the business struggled and she borrowed money from John but it became too stressful and she transferred the business to John in May 2016;
(d) she continued working 20-25 hours a week and John paid her wages at the rate of $400 per week before tax;
(e) her stress decreased and she felt ready to return to full time work so in January 2017 John transferred the business back to her and she was working full time, eight hours a day, six days a week between January and 14 March 2017;
(f) Ryan is now at school and despite being a “full-time carer” she has “a lot of free time” and would have worked from 9.00am to 2.00pm Monday to Friday but cannot because of her injuries;
(g) John’s mother returned to Vietnam in December 2021 and John returned to the home in January 2022 and he does the chores. John spends 35 hours a week looking after the home and Sophie and works 35 hours a week as an Uber driver, and
(h) she closed the business in January 2022 but is unable to work in any other job because of her injuries and disabilities.
Oral evidence
The claimant gave evidence at the assessment conference and in answer to her barrister’s questions she said:
(a) at the time of her accident there were two nail salons in Nowra, now there are four or five;
(b) she is not working because she does not feel happy. She does not want to engage with customers, she has a hot temper, and she is unable to concentrate. She says she does not sleep at night because of her health and when she wakes up it is like she has a had headache. She says she has back pain and shoulder pain if she sits for a while;
(c) since her mother-in-law went back to Vietnam John is in the house and he gets Ryan to and from school;
(d) John is now an Uber driver and works all the time when the children are at school and childcare, and
(e) if she had not been injured she would have worked while Ryan and Sophie were at school or childcare.
Ms Nguyen said she is a victim of domestic violence and so her childcare is free. She says that during school holidays, Ryan stays with her or goes to vacation care.
Ms Warren asked the claimant about the incidence of domestic violence and the claimant confirmed it was the circumstance as outlined in Ms Piebanga’s report. John was charged by the police and an apprehended violence order was imposed on him with five conditions however one of those conditions has been lifted and he is allowed to go to the home to help her with Sophie.
The claimant confirmed she tried to sell her business, but she received no offers for it. She said she notified her accountant and the real estate agent and terminated the contract of her employees and shut the salon.
She was asked about her statement where she said she had bought or purchased the nail salon premises. Ms Nguyen confirmed she leased the premises in 2015 and then renewed the lease most recently in 2021.
The claimant confirmed that she had the same accountants (BNT) since 2015 and they were John’s accountants and the accountants for his business. She said she lodged Business Activity Statements through the accountant and gave the accountant all of the relevant documents to help them do this.
The claimant said she borrowed $40,000 from John to buy the business. She said she borrowed $60,000 from other people. Ms Nguyen said she had records for the loans and gave them to her accountant.
There was some confusion as to when Ryan left to got to her parents in Vietnam, but Ms Nguyen was clear that Ryan returned to her in February 2017.
The claimant said at the time she opened the business she (as the owner of the business) employed John but that in May 2016 she became an employee of John (due to the transfer of the business). She said John took over payment of all the expenses of the business including her wages. She said her pay was deposited into her bank account and she was given payslips which she gave to her accountants.
She was asked why she declared no wages in her 2016 taxation return and Ms Nguyen explained that she had time off after transferring the business and did not return to work until the 2016/17 financial year.
The claimant was asked whether she told Centrelink about Ryan being in Vietnam with her parents. She said she had reported this, and her payments ceased although Centrelink continued to pay her for six weeks after he left.
The claimant said she told Centrelink what she was earning from her wages and her business as she had an obligation to tell them. She said she was required to tell them once a year if her circumstances changed.
Ms Nguyen said that John transferred the business back to her in January 2017. She was then asked why she had received wages from J & R Pham in February 2017 and Ms Nguyen explained that the transfer had not been completed until the end of February 2017 and so she continued to receive a salary from John’s business until the end of February.
The claimant said that after the accident John and two employees looked after the nail salon. She denied returning to work in April 2017 saying she did not return to work while Ryan was in hospital. She was taken to her claim form where it said she had returned to work in April 2017 and the claimant said she tried to go to the shop but that it was impossible for her to work.
The claimant said her business did not suffer due to Covid because Nowra was not in the greater Sydney area and her customers were local and continued to visit.
The claimant was asked to explain why if the salon was operating at a loss, she renewed the lease in 2021. She could not explain this.
Ms Nguyen was asked whether she took any money from the business to pay herself and she said, “not much about $8,000 - $9,000 a year”. She said she told Centrelink and the tax office about this income.
Ms Nguyen was asked about Ryan. She said his behaviour was not normal and the more he grows his capacity to control himself is worse. She said he does not sleep well and that he goes to bed at 11.00pm and wakes up at 8.00am. She said she gets no help at home from either Lifetime Care or the National Disability Insurance Scheme. She said Lifetime Care provided some assistance early on. I asked her whether she had asked Lifetime Care for more help, and she said she was waiting for a response to a request that had been made.
When I asked the claimant what makes her unhappy and therefore why she cannot work she said she gets negative feedback from customers because they think she is impolite. She said she was unhappy that Ryan was not well and that she has no support to help her including from John. She also expressed concern about John’s behaviour.
Economic loss evidence
Anthony Carmody has provided a report dated 31 May 2021[24] in relation to certain economic losses. It is based on a very short history of Ms Nguyen’s involvement in the Luxury Nails business which he says was operated by J & R Pham during 2016 to 2017. He says the claimant has limited employment prospects and sets out the minimum superannuation support to which she would be entitled as an employee.
[24] Page 247 of the claimant’s bundle.
Mr Carmody makes a calculation of the lost superannuation benefits of $19,198.73 which does not appear to be based on the methodology accepted in cases such as Najdovski v Cinoljilovic (2009) 72 NSWLR 728 where a simple percentage (in the order of 11%) of net earnings is applied.
Mr Carmody also calculates the claimant’s lost earnings which appears to be based on her wages, the net income of J & R Pham and the net income of Luxury Nail Design to arrive at a figure of $644.77 per week net. He then adds the losses of the business to the expected income (wages and profits of the two businesses) to arrive at a figure of $149,129 from the date of the accident to 31 May 2021.
In terms of future losses Mr Carmody assuming Ms Nguyen would have continued to derive income from the Luxury Nails business at the rate of $655 a week to arrive at a net loss of $461,626.
Mr Carmody provided a further short report as to the business arrangements of J & R Pham Pty Limited noting they employed Ms Nguyen (according to her taxation returns) in the 20016 and 2017 financial years and then she operated the business on her own in 2018 and 2019 incurring losses in those years of $7,105 and $811.
The insurer has produced records from Centrelink[25] which show the claimant:
(a) started receiving the single parent payment on 30 December 2014;
(b) received payments in 2015, 2016 and 2017 without any periods of non-payment (for example while Ryan was overseas with her parents) until it was cancelled on 2 October 2018;
(c) started receiving the carer payment in December 2019;
(d) income from J & R Pham Pty Limited at $622.34 per fortnight is recorded from 25 July 2016 to 3 April 2017 following “business integrity reviews”, and
(e) income from True Nails and Beauty appears to have been flagged in 2015 however amounts were not listed due it being “not verified”.
[25] Page 106 of the insurer’s bundle.
BNT Accounting have provided a letter dated 19 May 2022[26] stating Ms Nguyen was employed by J & R Pham from 1 July 2017 to 28 February 2017 earning $280 per week from 1 July 2017 to 30 September 2017 and thereafter $420 per week[27]. Attached was a copy of a handwritten PAYG payment summary dated 10 April 2018 stating Ms Nguyen was employed by J & R Pham from 1 July 2016 to 31 March 2017.
[26] Document AD 10 in the Commission’s electronic file.
[27] This letter appears to contain errors or confusion in the dates the 1 July and 30 September dates should be 2016 dates not 2017 dates as stated.
Three payslips[28] have been provided from J & R Pham confirming the rates of pay of $280 and $420 per week.
[28] Documents AD12, AD13, AD14 in the Commission’s electronic file.
I have examined the claimant’s taxation returns and the other documents provided and summarised the information contained in them in an annexure to these reasons. At the assessment conference the claimant said that she had not lodged her 2021 taxation return and that her 2020 taxation return was being lodged. The 2020 taxation return that has been provided to me is unsigned and undated.
SUBMISSIONS
Claimant’s submissions
While the claimant uploaded an updated schedule of damages, the accompanying submissions are over a year old and do not align with the schedule.
The submissions seek the sum of $210 per week net from the date of the accident “to date” plus superannuation.
The claimant says she should either be awarded a buffer or the sum of $250 per week to the date of retirement (at age 67) on the basis that she has no residual earning capacity. Future superannuation is also claimed at 12%.
The claimant says she has received “an average of 6 hours per week” of gratuitous care since the date of the accident and claims this at $30 per hour or $180 per week from the date of the accident to date. She also claims future care and assistance for the remainder of her life at six hours per week.
In terms of the future treatment, the claimant says she is entitled to $75 per week to cover the cost of treatment however no details are provided.
At the assessment conference, Mr Fitzsimmons submitted that:
(a) the claimant’s psychological injury is significant noting she had a miscarriage and because of her reaction to her son’s injuries. He noted that Dr Vickery accepted the claimant’s psychological condition;
(b) I should not be concerned at the claimant’s lack of treatment because she has been focussed on her son and has maintained herself with medication;
(c) the claimant was 27 when she was injured and is now 32 and she has been an industrious member of society after arriving in Australia in 2010;
(d) she has a permanent impairment both physically and psychologically and 35 year working life left;
(e) her son is getting more and more challenging as time goes on. She has some time between 9 and 3 during school term to find work but cannot work because of her injuries;
(f) $300 per week is a conservative figure for future losses and it would be open to me to award a buffer for the past and the future noting the difficulties with the documents;
(g) Ms Piebanga is partisan and ignores the medical evidence, and
(h) the claimant has not had much treatment in the past but should be awarded a small amount in the future.
Insurer’s submissions
The insurer’s updated submissions summarise at 1-17 the medical evidence but make no suggestion as to what injuries I should or should not accept.
The insurer hoped to resolve the issue of past treatment expenses and raised issue with one attendance on the psychologist.
In terms of future treatment expenses, the insurer notes there is a global claim for $75 per week of treatment for the remainder of the claimant’s life. The insurer says this is excessive noting that Dr Lee recommended $3,000 of further treatment for the claimant’s physical injuries and Drs Vickery and Hyde Page suggested no further treatment was needed.
The insurer notes the claim form suggests the claimant was earning over $4,000 per week and that this is not borne out by the documents. The insurer says the claimant’s earnings have not been fully explained nor have the periods of time she was working or not working. The insurer also says the claimant has chosen to be the full-time carer for Ryan.
In terms of the claimant’s capacity to earn the insurer notes the various opinions of the experts and says I would not be satisfied that Ms Nguyen has satisfied me she has sustained any economic loss and that she could return to work. Any reduced capacity to work the insurer says is due to her son’s injuries and his need for care.
The insurer argues with respect to care that the statement of the claimant’s mother-in-law should not be accepted because it fails to provide sufficient detail and does not distinguish between assistance provided to the household generally and the assistance provided to the claimant specifically.
The insurer notes there is no statement from John and nothing from the claimant’s brother. The insurer suggests I would not be satisfied that the claimant has required care and assistance for more than six hours per week for more than six months. The insurer submits that I would allow the sum of $9,681.36 for the first 12 months based on six hours per week in accordance with the report of Dr Hyde Page.
The claimant seeks future domestic assistance at the commercial rate for six hours per week and notes that this is based on the opinion of Dr Lee an orthopaedic surgeon who does not have the expertise to provide an opinion on this issue.
At the assessment conference Ms Warren submitted:
(a) that Dr Page and Ms Piebanga’s reports should be preferred because they are based on more recent physical examinations and all of the documents and the current clinical picture is more useful;
(b) in terms of care, Mr Phan’s report was based on a video conference rather than a face to face assessment and his opinions should be given little weight;
(c) there is only one carer ‘statement’ which is not tested and should be given no weight and there is no statement from the two people who have allegedly provided the most care, her partner and her brother;
(d) I should award no damages for future treatment because the claimant has not sought any treatment for the past two to three years, and
(e) the documentary evidence about the claimant’s earnings is contradictory and inconsistent and the claimant is now receiving more as her son’s carer and has no incentive to work.
IS THE CLAIMANT’S EVIDENCE RELIABLE?
The claimant’s accident happened over five years ago. I do not expect the claimant to remember with precision all of the details since the accident. Ms Piebanga for example is critical of the claimant for stating the accident occurred on 17 not 14 March 2017.
However, there are a number of inconsistencies in the evidence which do give me cause to doubt the accuracy of her evidence.
For example, Ms Nguyen said in her statement that work had been cut back during Covid however at the assessment conference she said Covid had not affected her business at all.
The claimant said she could not sleep because of her injuries however she has told Ms Barry that her son has poor sleep habits and she shared a room with him.
The claimant said in her statement and at the assessment conference that Ryan returned to Australia in February 2017 however Ms Piebanga has a history of him returning six or seven months before the accident
It is the documentation and information surrounding the claimant’s earnings that gives me the most concern. The claimant said in her statement she worked as a nail artist from 2013 to 2015 however there is no evidence any income was declared in her 2014 taxation return. The clamant said she paid herself $8,000 - $9,000 out of the business each year and that she told both Centrelink and the tax office however there is no record of any income declared to Centrelink. The claimant also said she told Centrelink about Ryan’s time overseas away from her however there is no suggestion in the records that her single parent payments were stopped during the time he was said to be in Vietnam. The claimant said she had borrowed $100,000 from John and friends and that she told her accountants about this however there is no evidence in the financial records about these loans.
Because of my concerns as to the reliability of the claimant’s evidence, I will look for corroboration of her evidence in the documentary material provided.
WHAT INJURIES DID THE CLAIMANT SUSTAIN IN THE ACCIDENT?
Findings as to physical injury
The insurer does not really challenge the claimant’s allegation of injury. The evidence of Dr Lieng’s certificate and the reports of Dr Lee (for the claimant) and Dr Hyde Page (for the insurer) satisfy me that the claimant sustained soft tissue injuries to her neck, thoracic and lumbar spine an injury to her right thumb, chest wall and abdomen which led to the claimant miscarrying. I am also satisfied on the basis of the more contemporaneous record in the medical certificate that the claimant also sustained a soft tissue right shoulder injury.
I note the claimant has alleged “bilateral” shoulder injuries however the first record of left shoulder problems occurred in May 2018 (Dr Lee) over a year after the accident. Dr Page suggested in his 2018 report that shoulder pain was “secondary” to the claimant’s neck injury. Therefore, while I accept the claimant had pain in both her shoulders, I do not accept that her left shoulder sustained a frank or direct injury in the accident. The claimant did injure her right shoulder, but any left shoulder symptoms are due to referred pain from the neck injury.
I note Dr Lee in 2018 recorded full movement in her hand and Mr Phan in September 2021 did not record any complaints of thumb or hand pain. The claimant appears in the various histories given to accept that her chest pain and abdominal injury give her no further physical symptoms.
I accept the insurer’s submission and prefer the evidence of Dr Page in particular his most recent report which suggests the claimant has made a near full recovery from her physical injuries. While she still complained of pain (which may have more to do with her psychological distress) she had a full range of movement in the shoulders, neck and lower back.
While Assessor Kumar found a permanent 5% impairment of the claimant’s cervical spine, I note he examined the claimant in May 2019, two years before Dr Page’s refresher by which time the claimant had further improved.
The claimant has had no investigations in respect of her physical injuries. Despite having had, as she says full time assistance from her mother-in-law and respite when her son is at school, the claimant has had no treatment for over two years. This is not behaviour in my view consistent with significant physical injuries.
Findings as to psychological injury
Dr Clark diagnosed a major depressive disorder which he thought (in February 2019) should take two years to recover. Dr Vickery diagnosed an adjustment disorder due to stressors related to the accident (her son’s injuries, lack of family support and the attitude of her in-laws). Assessor Jones in May 2019 diagnosed an adjustment disorder which was chronic with depressed mood and anxiety.
I am comfortably satisfied that the claimant suffers from an adjustment disorder which is now chronic and related to at first, her adjustment to her own injuries but also to her adjustment to her son’s injury.
The claimant has had some counselling in the past but no psychiatric treatment. Dr Clark suggests she needs treatment.
The claimant says she has not pursued treatment because she has been caring for her son however, she does not explain why she cannot pursue treatment now that her son is at school and her daughter in day care and in particular since her business shut earlier this year.
I note that the insurer has not suggested that the claimant has failed to mitigate her damages by actively engaging in treatment for her injuries.
Ms Nguyen’s claim that she received little family support is not borne out by her evidence that her parents came to visit after the accident, that she visited them in Vietnam in February/March 2018 and that her brother lived with her until the beginning of 2022 looking after the garden and providing other assistance. There is also evidence of support from John’s mother who arrived before Sophie was born and who remained for two years.
Ms Nguyen’s complaints of John not supporting her is not borne out by the fact he helped her in her business after the accident and purchased a home with her in 2019. However, I note the evidence Ms Nguyen gave of his (recent) violence towards her.
While her parents and in-laws may have unfairly blamed Ms Nguyen for her son’s injury and her need to provide more care to him than baby Sophie and while that may have impacted upon her and is related to the accident as per Kavanagh v Akhtar [44] NSWLR 588, John’s violence toward her (and the impact that is having upon Ms Nguyen) cannot, in my view on the evidence before me be related to or flow from the accident.
ASSESSMENT OF DAMAGES
Treatment expenses
The parties have agreed that the claimant’s past treatment expenses total $16,034.85 of which $15,528.40 has been paid by the insurer pursuant to the duty imposed by section 83 of the MAC Act.
I agree with the insurer’s submission that there is no evidence to support the claim for $75 a week for the remainder of the claimant’s life.
I am reluctant to award the claimant any significant sum for future treatment on the basis that firstly her physical injuries are essentially recovered and secondly that she has expressly stated that counselling did not help her and, in my view, she is unlikely to participate in much treatment into the future.
I will allow $5,000 on a “cushion” or “buffer” basis.
Care and assistance
The claimant says that she has received gratuitous assistance from family since the date of the accident at an “average” of six hours per week. For there to be an average, this suggests that at some periods there has been more than six hours per week and in other periods less.
Damages for gratuitous care and assistance are permitted under the MAC Act however section 141B restricts the damages that can be awarded as follows:
(a) no compensation is awarded if the care and assistance would have been provided anyway (2);
(b) no compensation is awarded unless the services are provided or are to be provided for at least six hours a week and six consecutive months (3), and
(c) an hourly rate is prescribed linked to the average weekly earnings of all NSW employees (4)
The care regulated by section 141B is care provided to the claimant as a result of the claimant’s injuries and is to be distinguished from the replacement of gratuitous care that the claimant provided to others or was to provide to her dependents. Replacement care is a separate head of damage and is regulated by section 15B of the Civil Liability Act 2002. The claimant has confirmed she makes no claim for the replacement of care that Sophie or Ryan needs and which she says she cannot provide.
White v Benjamin [2015] NSWCA 75 (White case) involved issues about care where the plaintiff was part of a household and the members of that household benefited from the care that was being provided. For example, if someone does a load of washing in Ms Nguyen’s house, that load of washing may contain Ms Nguyen’s clothes as well as her children’s clothes. Similarly, Ms Nguyen might have her own bedroom but she uses the other rooms in the house (other than presumably her brother’s bedroom). If someone cleans the whole house including Ms Nguyen’s bedroom, the whole family benefits.
The principle accepted by both Beazley ACJ and Basten JA in the White case was that where the elements of the claim were severable between the injured person and others who benefit, they cannot be commingled for the purpose of determining whether the thresholds of six hours per week for a continuous period of six months have been met. Where those elements are not severable, the commingled needs of an injured person remained the injured person’s needs even if they benefitted others.
The evidence from Mr Phan in relation to care and assistance is not accepted. Firstly his report was produced after a video conference consultation only and secondly he refers to the claimant’s home as a three bedroom rented property whereas by then the claimant and John had purchased and were living in a four bedroom home. This suggests that his report is not an accurate one. While the report of Ms Piebanga is thorough and produced after a long attendance at the claimant’s hone, I note her opinion is based on how Ms Nguyen’s injuries should have progressed and not how they actually progressed.
The claimant’s evidence on care and assistance and the histories she has given doctors is not precise. There are references to an aunty and uncle living with her, her mother-in-in law lived with her, a friend lived with her and her brother lived with her. The periods of time when various people have been living with the claimant is not at all clear and in particular whether John has lived with her at all and if so when.
For the first three months after the accident, the claimant says she was with Ryan in hospital in Sydney and she was not living at home in Nowra. I am not satisfied that during this period she had any need of care and assistance or at least not care and assistance over and above the threshold.
The claimant has been in receipt of a single parent payment from Centrelink since December 2014 until October 2018. In April 2019 the claimant and John are reported to have purchased a home together and in June 2019, Sophie was born.
The claimant’s mother-in-law came to provide constant care for Sophie and that is not compensable under section 141B. The evidence from the claimant was that she has been focussed on providing care and assistance to Ryan and that she has not, until recently sought additional assistance from Lifetime Care. This care for Ryan and Sophie is, in the words of the White case clearly severable from the care the claimant herself has required as a result of her own accident related physical and psychological injuries.
There is an absence of evidence from the claimant’s brother and John. While John’s recent act of violence towards the claimant might explain why he has not provided a statement this year, no statements have been provided from him at any stage before that and no statement from the claimant’s brother has been obtained and no explanation as to why not.
The insurer has conceded a need for care for a period of 12 months. I note Dr Page provided a report in November 2018 suggesting the claimant at that time had “a significantly reduced ability to do pre-accident home duties” and that she would require six hours a week of care for a further 12 months.
I will therefore allow six hours of care from 14 June 2017 (three months after the accident when the claimant and Ryan came home) to 30 November 2019 (a year after Dr Page’s report) a period of about 129 weeks. While Lifetime Care was providing some assistance during this period, it is likely that this was care and assistance for Ryan and his accident-related needs.
While the prescribed rate of gratuitous care has varied from $30.15 on 14 April 2017 to $32.19 on 15 November 2019, both the claimant and the insurer have adopted the rate of $30 per hour which I will also adopt and round up to $23,500 noting that for this head of damage there is a degree of approximation in any event.
I am not satisfied that the claimant has required or has received six hours per week of domestic care and assistance since then. I note that since December 2019 the claimant has been receiving the carer payment which is a Commonwealth Government payment to someone who is giving full time care to someone else. It is also reasonable in my view to draw an inference that if John and the claimant purchased a home together, they have been living in it together and he has been providing some assistance. I will therefore not allow any care and assistance into the future on a commercial or gratuitous basis.
Loss of earnings and loss of earning capacity
General principles
The assessment of damages for loss of earnings (past) and loss of earning capacity (future) is governed by the common law subject to the restrictions imposed in part 5.2 of the MAC Act.
The judgments of the courts make it clear that damages for the loss of earnings past and future, are awarded for the impairment to the claimant’s income-earning capacity when that impairment is or is likely to be productive of income loss: Graham v Baker (1961) 106 CLR 340; Medlin v SGIO (1995) 182 CLR 1.
In Ms Nguyen’s case therefore I must consider:
(a) What was the plaintiff’s earning capacity at the time of her accident?
(b) To what extent has it been impaired by her injuries?
(c) To what extent has the impairment been or will be productive of financial loss?
Section 126(1) of the MAC Act says in respect of future losses that:
“A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.”
Past loss of earnings
Before her accident, the claimant was not a high income earner. There is no documentary evidence of any income earned before 2015 and the evidence appears to support an income in that period of $200 per week at that time.
I am satisfied that the claimant has had an impairment to her ability to earn income. I accept the evidence of Dr Page in particular that at least until November 2019 she had ongoing symptoms and impairments related to her physical injuries which prevented her resuming all her domestic activities and which would have similarly affected her ability to work as a nail technician. I also accept the evidence of the psychiatrists that her mental state would have impaired her performance at work.
Whilst I am satisfied that the claimant has had an impairment to her earning capacity, I am not of the view that the claimant has been totally impaired since the accident. She herself gave evidence that she did continue to work in her business although for how long and in what capacity has been unclear.
In the claim form, Ms Nguyen says she was earning $4,000-$5,000 per week and that she was (as at 28 April 2017) back at work with restrictions. The claimant says she was not back at work and the taxation returns do not support earnings of anything like four to five thousand dollars per week.
There have been other figures suggested for the claimant’s pre-accident earnings. In her supplementary statement the claimant said she paid herself between $700 and $1,500 per week in 2016. This would suggest an annual income of between $36,000 and $78,000. The claimant’s taxation returns, and the financial records of the business do not support the business was producing revenue to support such payments.
Centrelink records suggest the claimant was earning $317 per week for J & R Pham during 2017 although three payslips provided in the days before the hearing suggest $280 with a pay rise to $420. The claimant said, at the assessment conference that she took $8,000-$9,000 out of the business every year which suggests $150-$175 per week. The submissions claim $210 per week.
The wages details for the claimant’s business in 2018, 2019 and 2020 suggest a total wages bill for the employees of $35,600, $37,368 and $52,200. The business was said to have employed between three to five people which suggests to me that their comparable salaries were not likely to be greater than the income the claimant was being paid by John that is something in the order of $12,000.
There is much uncertainty surrounding the financial arrangements of the claimant and her business. She says she bought premises however they turn out to be leased. Ms Nguyen said she transferred her business to John because she was struggling to cope (in 2016 before the accident) and that he then transferred the business back to her just before the accident but there is no documentation in respect of either of those transfers. The claimant said at the assessment conference she borrowed $40,000 from John and $60,000 from other people to set up and maintain her business. There is no documentation of these loans and no evidence in the claimant’s taxation returns of any loans or repayments.
The insurer posed the question that if the business was operating at a loss in 2018, 2019 and 2020 why renew the lease in 2021?
I am not satisfied that the documents as to the income of the business or the claimant’s earnings enable me to make an accurate calculation of her true losses. I therefore accept the claimant’s invitation to award a buffer or cushion.
I must be careful that I am assessing damages for the claimant’s loss of earning capacity and for the financial loss caused by that. I note the claimant spent the first three months after the accident providing care to her son and that since the accident she has focused on Ryan. I am not therefore satisfied that all the financial loss since the accident is related to her injuries but is related to her desire to provide as much care and assistance as she can to Ryan.
It is now 273 weeks since the accident. In my view a buffer of $50,000 would be a reasonable approach for the assessment of this head of damage.
There is no evidence of the claimant having a superannuation account or of her depositing amounts into it while she was self-employed. She said in her evidence she was unsure of whether she has or does not have any superannuation. As I have awarded a buffer, I do not propose to award any separate amount for superannuation.
Future loss of earning capacity
I am satisfied that the claimant does have a continuing impairment to her earning capacity, not because of her physical injuries but because of her psychological injuries. I accept that her mood and affect would cause difficulties with her engaging with customers.
I accept that the most likely future circumstances are that the claimant would have continued to work to support her family to the age of at least 67 and possibly 70 although the constant bending over the hands and feet of customers providing pedicures and manicures may limit this.
I do not however accept that the claimant has no residual earning capacity. Ms Nguyen sustained soft tissue injuries from which I have found she has largely recovered. He psychological injuries have not been properly treated and she has been advised to have psychiatric treatment. I have allowed an amount to enable her to do this which may improve her capacity to earn.
I note the claimant is now in receipt of carer’s payment of $700 a week which is more than she has earned at any time since 2014, according to her taxation records. I note she says her son is her focus and that she is dedicated to him and his recovery and that his behaviour is worsening. In my view her ongoing financial loss is not totally due to her psychological impairment but also her natural desire to care for her son.
Again, because of the imponderables and uncertainties I propose allowing a buffer or cushion for the future. In my view the sum of $100,000 should be awarded. Again because of the uncertainty surrounding the claimant’s superannuation contributions as a self-employed nail business owner, I do not propose allowing a separate amount for any lost superannuation.
Assessment of damages summary
I assess the claim as follows on the findings set out above:
(a) Past loss of earnings (including superannuation) $50,000.00
(b) Future loss of earnings (including superannuation) $100,000.00
(c) Past treatment (including section 83 payments) $16,034.85
(d) Future treatment $5,000.00
(e) Past gratuitous care $23,500.00
(f) Future care $Nil
(g) TOTAL $194,534.85
The claimant’s economic losses are, in accordance with section 130 of the MAC Act, to be reduced by the sum of $15,528.40. The insurer is to have credit for that sum being the agreed sum paid by the insurer for the claimant’s treating expenses under section 83.
COSTS AND DISBURSEMENTS
I assess the claimant’s legal costs and disbursements in accordance with sections 149 and 150 of the MAC Act and the provisions of the Motor Accidents Compensation Regulation 2020 in accordance with the attached sheet. I note both the parties have made submissions based on the previous (2015) version of the Regulation. The current (2020) Regulation refers to costs in terms of monetary units and provides for the indexation of costs every year. I have assessed costs based on the current Regulation.
My reasons for any disputed claims are as follows:
(a) The parties agreed that the assessment conference vacated at the request of the claimant cancelled out the assessment conference vacated at the request of the insurer but that I should allow the assessment conference that has led to this certificate.
(b) The assessment conference was completed four hours after it commenced resulting in an additional two hours being allowed.
(c) While there were two assessment examinations (Assessor Kumar and Assessor Jones) – there was only one application for medical assessment therefore only one amount of 10 monetary units will be allowed.
(d) The parties agreed to costs associated with four one-hour conferences directly related to the assessment.
(e) There were three interpreter invoices totalling $970.55 excluding GST.
(f) BNT accounting submitted an invoice with GST added. Carmody submitted an invoice with GST included.
APPENDIX 1
| Financial year[29] | Tax return Ms Nguyen | J & R Pham | |
| Year ending 30 June 2014 p 102 | No income Benefits $18,181 | ||
| Year ending 30 June 2015 | Income $8,010 Benefits $16,620 | ||
| Year ending 30 June 2016 | Income LND $10,939 Benefits $19,744 | Business income LND $21,523 Rent $8,250 Other expenses $1,062 | Company tax return Sales $47,978 Rent $7,500 |
| Year ending 30 June 2017 | Income $12,180 Benefits $19,683 $464 profit | Business income LND $21,500 Rent $11,000 Motor car $3,200 Other exp $3,149 Wages $3,360 | Company tax return Sales $136,411.45 Rent $17,500 Wages $45,280 Payments to assoc persons $17,500 |
| Year ending 30 June 2018 | Benefits $19,647 Income business $7,105 loss | Business income LND $73,700 Rent $33,000 Motor car $1,650 Wages $35,600 Other exp $44,921 | Profit and Loss Revenue $73,700 Rent $33,000 |
| Year ending 30 June 2019 | Benefits $5,072 Income business $810 loss | Business income LND $82,170 Rent $34,530 Motor car $3,400 Wages $37,568 | Profit and Loss Revenue $82,170 Rent $34,530 |
| Year ending 30 June 2020 | Benefits $20,096 Income business $13,240 loss | Business income LND $81,901 Rent $36,060 Motor car $2,720 Other exp $55,946 Wages $52,200 | |
[29] The source documents are found at pages 98 – 149 of the claimant’s bundle. The 30 June 2020 taxation return is unsigned, undated and found at AD17 in the Commission’s electronic file.
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