Pan v Cic Allianz Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pan v CIC Allianz Insurance Limited [2023] NSWPIC 266
CLAIMANT:	Shin-Ya Pan
INSURER:	CIC Allianz Australia Ltd
MEMBER:	Elizabeth Medland
DATE OF DECISION:	23 May 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of a claim for damages; liability admitted; claim for past and future economic loss; claimant has no entitlement to damages for non-economic loss; claimant a female born in 1996 who had foot run over by a taxi in Sydney Central Business District on 6 March 2018; Assessment Conference occurred in person at Personal Injury Commission; extent of claimant’s injuries essentially not in issue from a physical perspective, the central issue being the extent of the disabilities arising therefrom; injuries included an avulsion fracture of the base of the left 5th metatarsal and traumatic laceration; initially operative intervention only included washout; later came to a surgical reconstruction of the left ankle ligaments with arthroscopic examination and debridement in May 2019; claimant initially entered Australia in around 2015 on a 12 month working holiday; claimant has expressed goal of living in Australia permanently and obtaining citizenship; claimant working in various hospitality positions both before and after the accident; some initial period off work and then due to the Covid-19 pandemic; at time of assessment working full time as an assistant manager at a Hotel; Held – past economic loss agreed; future economic loss awarded on a buffer basis of $175,000; finding that the claimant would continue to work in a full time capacity in same or similar position in order to attain goal of Australian citizenship; total damages awarded of $180,480.54 plus legal costs.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. The amount of damages for the claim is $180,480.54. 2. The amount of the claimant’s costs in the matter is $36,447.87 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

Ms Shin-Ya Pan (the claimant) is a 27-year-old female (born in 1996) who had the unfortunate experience of having her left foot ran over by a taxi in the Sydney Central Business District on 6 March 2018. The taxi apparently disobeyed a red traffic signal as the claimant was crossing the road on a green walk signal.
The claimant subsequently lodged a common law damages claim against the insurer of the taxi.
The insurer has admitted liability for the accident. The matter for determination is the quantum of the claimant’s damages entitlement. The claim includes damages past and future economic loss. There is no entitlement to damages for non-economic loss.
The parties are to be commended for coming to an agreement as to past economic loss damages. The only head of damage in dispute is future economic loss. The parties’ views as to the claimant’s entitlement to such damages are vastly different.
Following a teleconference held in November 2022, the matter was set for an in-person assessment conference occurring on 13 March 2023 at the Personal Injury Commission (Commission) in Darlinghurst. The claimant was the only person to give evidence.
Following the conclusion of the assessment conference, the parties were provided with further time to come to a finalised agreement on past economic loss damages. An agreement was reached on a date shortly thereafter and the details provided to me.
I also received further written submissions from the claimant’s legal representatives after the assessment conference. These were not anticipated. The insurer was provided with additional time to respond, with submissions provided in compliance with my direction.

DOCUMENTS CONSIDERED

I have considered the documents provided in the application and the reply and any further information provided by the parties.

TREATING MEDICAL EVIDENCE

In general, the extent of the claimant’s injuries is not in issue, at least from a physical perspective. What is more relevantly in issue is the extent of the disabilities arising therefrom.
From the scene of the accident, the claimant was transported to St Vincents Hospital where she was diagnosed as suffering an avulsion fracture of the base of the left 5^th metatarsal and a traumatic laceration. At the time, the only operative intervention involved washout and closure of the laceration.
The foot fracture was treated conservatively for a period of time, including corticosteriod injections. An ultrasound of 18 July 2018 of the left ankle was reported as normal and an MRI of 21 August 2018 demonstrated lateral ligament sprains with scarring and impingement.
With symptoms unresolved, the claimant ultimately came to further surgical intervention, undergoing surgical reconstruction of the left ankle ligaments with arthroscopic examination and debridement of the ankle joint performed by Dr Wines on 31 May 2019. A follow up MRI of 21 August 2020, revealed an intact ligament repair. However, post operative reviews with Dr Wines noted altered sensation over the dorsum of the foot and positive Tinels sign at the anterolateral arthroscopic portal sites.
On further review with Dr Wines, the claimant complained of ongoing feelings of pain and instability associated with swelling with activity. A repeat MRI demonstrated arthofibrotic tissue in the anterolateral gutter, and a further corticosteroid injection was given.
With symptoms persisting, the claimant came to a further arthroscopy and debridement of the ankle. The surgery revealed synovitis and arthrofibrotic scar in the ankle joint.
Unfortunately, despite the various interventions, the claimant’s pain persisted, in addition to temperature and colour changes to the foot with hypersensitivity to light touch. As such, she came under the care of pain specialist, Dr Standen. Dr Standen in a report dated
28 June 2022, noted a clinical presentation consistent with neurapraxia of the superficial peroneal nerve. Due to the extent of the claimant’s symptoms, she underwent a ketamine injection into the left lower limb on 3 September 2021, with no reported benefit.
On review on 20 October 2021, the claimant noted that she had returned to work in hospitality and was able to tolerate prolonged standing and walking, however, there was an increase in pain over the dorsum of the left foot following shifts.
The claimant then received a pulsed radiofrequency neurotomy of the left common peroneal nerve, performed by Dr Standen on 11 April 2022. In a subsequent consultation, the claimant reported some short term benefit from the procedure.
At a review on 6 June 2022, Dr Standen noted the claimant reported ongoing dysaesthesias predominantly in the superficial peroneal nerve distribution. The claimant was taking no medications for pain, and was not using topical preparations for pain. She continued to report left foot dysaesthesias most problematic following a long work day and episodically associated with swelling and colour changes.

At the last review, Dr Standen noted no colour differential between the claimant’s feet and no swelling. There was also no temperature differential with both feet feeling cold. There was also no restriction in active range of motion of the left foot and ankle. There was no dysaesthesias noted. Dr Standen stated:
“my impression was that Shin-Ya continued to utilise neuropathic descriptors in her description of persistent left-sided foot pain. I indicated to Shin-Ya she had exhausted all conservative treatment pathways including engagement with active physiotherapy, provision of oral anti-neuropathic agents, provision of topical anti-neuropathic agents, provision of ketamine infusion and interventions.”
The claimant was referred to Dr Linton Meagher, psychiatrist. In a report to the claimant’s general practitioner (GP) dated 26 August 2022, Dr Meagher stated his opinion that the claimant was suffering from a severe major depressive episode with co-morbid generalised anxiety and panic disorder. Further, “this occurs in the context of chronic pain and ongoing medicolegal stressors. Avoidance appears to be a coping strategy”.
Dr Meagher prescribed a medication treatment regime of sertraline and circadin. He also recommended the claimant increase exercise and minimise alcohol intake.
Dr Meagher took a history that the claimant has ongoing pain and has daily anxiety. The claimant stated that she felt locked into her career path and cannot see any other options available to her.
Dr Meagher noted the claimant had taken Valdoxen for a short period in August 2021, however, was ceased due to side effects.
Upon review in November 2022, Dr Meagher noted the claimant had experienced an improvement in anxiety symptoms following the introduction of sertraline. Depressive symptoms remained.
In a report dated 15 February 2023 requested by the claimant’s lawyers, Dr Meagher noted the claimant was last reviewed on 10 February 2023. He reported the claimant to be “pervasily depressed” and was isolated socially with her dog providing her with solace. She persisted with work despite self-reported severe pain.
Dr Meagher noted the claimant continued to work with her psychologist. He considered the claimant’s chronic pain to be the main contributor to her depression, in addition to the ongoing litigation being an ongoing stressor.

MEDICO-LEGAL EVIDENCE

Claimant’s evidence

Occupational physician, Dr Simone Ryan, has provided reports to the claimant’s legal representatives. The first report of Dr Ryan dated 26 February 2021 detailed the claimant’s history with ongoing difficulty with her left foot/ankle, as well as psychological symptoms. The claimant explained that she continued to work, despite her significant symptoms out of financial necessity.
The report arises from an examination that took place only a number of days following a surgery with Dr Wines. As such, Dr Ryan described the injuries as being a long way from stability, including psychological concerns. She felt the claimant would be best advised to retrain into a more sedentary work environment.
In a further report of 14 September 2022, Dr Ryan noted that the claimant was working in a full time capacity, despite ongoing symptoms. The claimant reportedly stated that she did not know how much longer she could keep going. Dr Ryan stated:
“regarding her work, I remain at a loss as to how Ms Pan tolerates the pain of her foot with an on-her-feet all day manual labour role. There is no doubt this is due to her good work ethos although I continue to be concerned about her mood. Certainly, on reviewing my original report, with her now indicating that she has lost hope and does not know how long she can keep going like this particularly around suffering pain the benefit of trying to maintain work. There is no doubt that if Ms Pan was my patient I would be strongly recommending her to cease work in this environment and undertake work in a sedentary role only.”
Dr Ryan provided a poor prognosis and disagreed with Dr Keller’s opinion (discussed below) that the claimant’s condition would get better over time. Instead the doctor noted that all conservative treatment measures had failed and the symptoms are ongoing and will continue.
Upon review of the opinion of psychiatrist, Dr Meagher, Dr Ryan stated in a further report dated 13 October 2022, that she was impressed with the fact that the claimant showed up to work each day in a manual labour role and was a testament to her work ethos. Dr Ryan stated that: “I would argue that she is permanently not fit for this work; no any work at all (at the moment).” Dr Ryan expressed concerns for the claimant’s condition deteriorating and: “her physical pain is very real with known underlying causation and it may well be that in the future – should she continue in the current path – she will become incapacitated for work completely and not employable at all.”
The claimant’s lawyers have also obtained the opinion of orthopaedic surgeon, Dr Martin. In a report dated 23 September 2022, Dr Martin, noted the claimant was working in a full time capacity and undertook her activities of daily living. However, he noted that she did so with pain. Dr Martin did not consider the claimant is likely to develop arthritis in either the foot or the ankle. He did not consider that further surgery was required and he considered that her symptoms are likely to continue into the future, noting there consistent presence over a number of years. He considered that it may be that the claimant is better suited to more sedentary work.
Dr Martin also provided a whole person impairment assessment of 2% based upon the dysaesthesia.

Insurer’s evidence

The insurer’s lawyers have obtained the opinion of Dr Keller, occupational physician. In his report dated 5 May 2022, Dr Keller noted the claimant worked in a full time capacity, up to 12 hours a day, 5 days a week. She also shops, and socialises once a week and also attends pilates once a week. She rests in bed on her days off.
In terms of capacity for employment, Dr Keller’s opinion is brief. He simply noted that the claimant has been working full time without restrictions. He did not consider the claimant required formal work restrictions, although “it is reasonable that she is not able to walk in high heels.”
Dr Keller found a 0% whole person impairment.
Dr Vickory, psychiatrist, has provided a report to the insurer’s lawyers dated 11 August 2022. Dr Vickory noted the claimant presented with some anxiety in terms of her future given her pain symptoms and her young age where she is not able to run or exercise or wear high heels.
The claimant’s presentation was reported as consistent by Dr Vickory. He provided a diagnosis of adjustment disorder and did not consider here to be any effect in terms of the psychiatric injury upon the claimant’s capacity to work. He found a 0% whole person impairment.

CHRONOLOGY

The claimant commenced studies in journalism in Taipei, Taiwan in 2014 and ceased same in 2015.
She thereafter travelled to Australia for a working holiday for 12 months. This trip had the claimant resolve that she wished to live in Australia permanently and obtain Australian citizenship. This remains a clear goal of the claimant.
After working casually as a waitress in Taipei until March 2017, the claimant returned to Australia on a temporary student visa.
After a three month course in English the claimant commenced employment as a bar attendant at the Mount Batten Hotel on 22 June 2017. She was working casually 20 hours per week. Earnings were approximately $364 net per week.
In July 2017 the claimant commenced working at the bar of the Coronation Hotel for 20 hours per week, in addition to the work at Mount Batten Hotel. Her earnings at Coronation Hotel reportedly were $500 net per week. Her work involved her to be on her feet, standing or walking, her entire shift.
Whilst still maintaining employment with Mount Batten Hotel the claimant ceased employment with Coronation Hotel in October 2017 and commenced with the Vegas Hotel at Kings Cross. Her earnings there reportedly were $560 net per week.
The claimant’s statement also reveals she commenced employment in October 2017 with Greek restaurant, Subterranean, as a supervisor. The claimant’s duties included phone bookings, emails, supervising staff, liaising with clients and employees. The claimant reports that she was required to stand and walk her entire shift.
Following the accident of 6 March 2018 the claimant was effectively immobilised for a number of weeks. By the end of April 2018 the claimant was able to mobilise with crutches, however, was experiencing pain, discomfort and restriction of movement in her left foot/ankle.
As a result of such symptoms the claimant reports that she was unable to return to her employment with Mount Batten Hotel, however, she managed to return to work at the Vegas Hotel in late April, working three, seven hour shifts per week. Although not entirely clear when she returned to the Subterranean restaurant, the claimant did return to such employment at some stage and ceased her employment there on 13 January 2020.
The claimant commenced employment at the Crows Nest Hotel in August 2019 working in the gaming department on a part time basis. Earnings were reportedly $535 net per week. This employment was ceased in December 2020.
From 4 January 2021 until 25 May 2021 the claimant was employed at the Alcott Bar, Lane Cove on a full-time basis as a venue supervisor with reported earnings of $1,000 net per week. The claimant contends that this employment was terminated after her employer learned that she had been involved in an accident and that she required time off to attend medical appointments.
Thereafter until 30 September 2021, the claimant was not able to work due to the Covid-19 pandemic.
From October 2021 until January 2022 the claimant was employed at Belrose Bowling Club as front of house manager earning $1,100 net per week.
From 28 March 2022 until 14 September 2022, the claimant was employed at Brookvale hotel as a manager on a full-time basis. Her earnings were $1,320 net per week. The claimant reports that the physical demands of such job aggravated her symptoms and the only relief was to go home and elevate her foot to relieve the swelling. She ceased this employment on account of her symptoms.
The claimant is currently working at the Robin Hood Hotel at Charing Cross as an assistant manager earning $1,215 net per week. She has been in such position since 4 October 2022. The contract of employment has her base salary as $80,000 plus superannuation.
On 31 July 2017 the claimant commenced studies in Information Technology at the Australian Institute of Higher Education. The claimant ceased these studies at the end of 2018, after the accident, with an intention to commence a Bachelor of Business in Event Management at Torrens University in 2019. The claimant commenced such studies on 25 February 2019 and the evidence suggests that she has now graduated. The claimant’s visa status has evidently changed as a result, and she now has no restrictions on the hours she can work per week.

ASSESSMENT OF DAMAGES

Non-economic loss

There is no entitlement to non-economic loss damages and no claim is made.

Past economic loss

An agreement has been reached as to past economic loss damages. The parties have agreed on an amount of $5,480.54. I award such amount.

Future economic loss

Whilst an agreement has been reached in respect of past economic loss damages, the parties have significantly divergent views as to future economic loss.
The claimant submits an allowance, on a buffer basis, of not less than $600,000 would be appropriate.
It is submitted on behalf of the claimant that, but for the motor accident, she would have an ongoing earning capacity of not less than $1,300 net per week with a likelihood that with the progression of time she would have enjoyed advancements.
On this basis, the submissions calculate a loss of $1,500 net per week to total just under $1.8 million. It is submitted that the claimant’s earning capacity is reduced by not less than 50%.
The insurer’s position is that essentially the claimant’s accident related injuries are not productive of a financial loss. The insurer relies upon the opinion of Dr Keller and Dr Vickory. The insurer has submitted that a small buffer of $20,000 is appropriate to allow for ad hoc days off work, and maintains, as per Dr Keller’s opinion, that the claimant’s symptoms will slowly reduce.
Following the assessment conference, the claimant’s senior counsel prepared written submissions that were provided to me. These submissions were not anticipated. As such, I allowed further time for the insurer to lodge submissions in reply.
The claimant’s submissions provide a comprehensive argument as to why an award by way of a buffer is appropriate. The submissions refer to relevant case law. The insurer’s submissions confirm that it does not disagree that a buffer is appropriate.

I agree that a buffer award in this case is appropriate. I do not have before me any vocational assessment evidence that sets out the earnings in alternative vocations. If I am to accept that the claimant suffers from a loss of earning capacity, on the evidence, it is not reasonably possible for me to provide a relatively precise calculation of economic loss.
During the assessment conference the claimant was questioned by the insurer’s counsel over a number of alleged inconsistencies in her evidence. These included varying reports as to the claimant’s ability to, for instance, to run, wear high heels and dance.
The claimant explained that she has attempted these various activities, however, they have all exacerbated her injuries.
In addition, the insurer’s counsel questioned the claimant over her working hours as connected to the conditions of her visa at the relevant times. It is apparent that there is some evidence that the claimant may have at times exceeded the working hours set by the conditions of her visa in the past.
Notwithstanding the question over the claimant’s compliance with visa conditions, I do not find that the claimant’s credit is in issue in terms of her complaints and difficulties arising from the motor accident. I accept the claimant’s evidence that she has attempted to wear high heels, danced and ran since the accident, but she has ceased such activities due to the aggravation of her symptoms. Of main importance, is the fact that I accept the claimant’s evidence that she suffers genuine ongoing pain symptoms that are significant and interfere with her work.
I also note that no medical expert has called into question the claimant’s presentation. I have no difficulty in accepting the claimant’s sincerity when it comes to the complaints of pain. Particularly, following a work shift.
The claimant impressed as a very stoic individual who appears to be somewhat overwhelmed with her symptoms and the realisation that the accident has permanently altered her path in life. I found her to be forthright and determined, and articulate and considered.
I do not accept the conclusion of Dr Keller who reported to the insurer his opinion that the claimant has not suffered an ongoing loss of earning capacity. When making this statement Dr Keller has not provided any reasoning other than to point to the fact that the claimant has maintained employment since the accident. This is despite the fact that the claimant described significant pain and symptoms that is aggravated by her working conditions, and Dr Keller stated that he found no signs of embellishment when it came to the claimant’s complaints.
I also do not accept Dr Keller’s opinion that the claimant’s symptoms will improve over time. In this regard, there is an absence of reasoning provided to support such a view. It is also at odds with the other medical evidence before me, save for a suggestion that the claimant’s psychological symptoms will improve to a degree following the resolution of this case.
Dr Ryan, reporting to the claimant’s representatives, is of the opinion that the claimant is not fit for employment owing to a combination of physical and psychological symptoms.
Dr Meagher, the claimant’s treating psychiatrist, is of the opinion that the resolution of litigation would be helpful to the claimant’s mental health. Whilst he was asked quite directly by the claimant’s representatives as to whether the claimant is likely to “decompensate” to a point where her employment is in jeopardy in the future, Dr Meagher does not directly answer this query. He merely recounts the history provided by the claimant in consultation and his impression. He noted that the claimant is doing everything possible to hold on to her job, so that she can afford to pay her rent and living expenses.
I do not accept the submission advanced on behalf of the claimant that she is likely to lose her current employment and will be forced to return to Taiwan. The claimant has stated to various doctors that she wishes to stay in Australia. When giving evidence at the assessment conference, I formed the conclusion that the claimant’s number one goal is to remain living in Australia. She is evidently resolute to attain permanent residency/citizenship in Australia. I conclude that in all likelihood her stoic determination will continue, and she will remain in her current employment at Robin Hood Hotel, or equivalent, who have “sponsored” the claimant in this regard. In this regard, at term 4.1 of the Schedule attached to the claimant’s contract of employment is the following commitment: “the business will commit to funding 50% of the total cost of the Permanent Residency application as long as the employee commits to a two year minimum term with the Company…”
Whilst the claimant has more than a year left to reach the two year commitment, I do find that it is more likely than not that she will remain in this employment. In this regard, whilst it is true that the claimant has left numerous positions since the accident, I accept the insurer’s submission that this does not translate to a likelihood that she will leave this employment or become unemployed. In this regard, despite the number of positions, the claimant has readily been able to obtain new employment whenever she ceases a position soon thereafter.
Whilst I accept Dr Ryan’s opinion that there are concerns about the claimant’s health if she continues with her employment, in the absence of an express opinion from Dr Meagher that the claimant is not currently fit for her employment, I do not accept that the claimant has no capacity for work. This is especially so given the claimant has maintained reasonably consistent employment since the accident (save for a period due to the Covid-19 pandemic) and for around six months beyond Dr Ryan’s last report.
Whilst it is true that there is a consistent theme that the claimant has put on a brave face and pushed through her pain to maintain employment, I do consider the claimant has an ongoing capacity for employment.
Overall, I consider the claimant’s current employment position is in more likelihood reflective of the position that the claimant would be in, but for the accident.
However, I consider it more likely than not that but for the accident the claimant would have continued in hospitality roles into the future that involve continuous periods of standing and walking.
I find that it is both unlikely, and unreasonable, that the claimant will continue in the roles she has undertaken since the accident beyond her obtaining permanent residency.
However, that is not to say that the claimant will have no earning capacity. The claimant is intelligent and clearly very driven and determined. Noting that she has obtained a bachelor’s degree in business, I consider that there would be a wide range of employment options open to her that are less physically demanding. Whilst the claimant clearly has difficulty in seeing a way forward in a career that suitably accommodates her injuries, with the removal of the stress of this litigation and with some vocational guidance I have little doubt that she will enjoy a successful career in to the future.
That being said, I do not accept the insurer’s submission that the claimant has no loss of earning capacity. The claimant has genuinely significant pain symptoms that will hamper her career and put her at a disadvantage of the open labour market. However, it is likely that with a switch to a more sedentary option of employment, she will have less difficulties with performing employment duties than she currently suffers.
On the basis of my findings set out above and claimant’s young age, I make an award for future economic loss on a buffer basis of $175,000.

Assessment of damages summary

I assess the claim as follows on the findings set out above:
·Past economic loss  $5,480.54
·Future economic loss  $175,000
·TOTAL  $180,480.54

COSTS AND DISBURSEMENTS

These reasons were initially issued in draft as requested by the insurer’s representatives. I subsequently received submissions on costs from both parties.
The insurer’s submissions of 3 May 2023 set out offers of settlement that were exchanged between the parties prior to the assessment conference. This includes an offer of $250,000 inclusive made on 4 October 2022 at an informal settlement conference. In addition, a Calderbank offer of $230,000 plus costs was made on 2 November 2022. The claimant’s last reported offer of settlement is set out as being $500,000 inclusive.
On the basis that my assessment of damages does not exceed the offer of settlement made on 4 October 2022 it is submitted that no costs should be awarded since such date. As such, it is submitted that Stage 4 costs and costs of the assessment conference should not be awarded. It is also submitted disbursements incurred after 4 October 2022 should not be allowed.
In response, in submissions dated 11 May 2023, the claimant’s representative submits that there is no proper basis for the insurer’s submissions. It is then submitted:
“…An award of damages of the Commission which is less than an offer of settlement of an insurer is not a bar to the claimant recovering professional fees under stage 5 and the totality of its disbursements under the regulations. Further, the Commission does not have power not to award the claimant fees for professional costs for stage 5 or to decline disbursements from 4 October 2023 which were all properly incurred.”
Unfortunately, neither party have referred to any relevant provision of the legislation in making their submissions.
Section 7.37 of the MAI Act empowers the Commission to assess and award costs in respect of the assessment of a claim for damages. Section 7.37(3) provides:
“In making an assessment under this section, the Commission –
(a)May have regard to the amount of any written offer of settlement made by either party to the matter, and
(b)Must give effect to any requirement of the regulations under Part 8 (Costs and fees) as to costs that may be included in an assessment or award of damages or fixing maximum fees and costs, and
(c)Must have regard to the principles and matters referred to in section 200 of the Legal Profession Uniform Law (NSW).”
Section 8.3 of the MAI Act provides that the regulations may make provision in respect of the “fixing of maximum costs for legal services provided to a claimant or to an insurer in any motor accidents matter…”
Schedule 1 of the Motor Accident Injuries Regulation 2017 (the Regulation) sets out the maximum costs of legal services.
On the basis of the content of the legislative provisions mentioned above, I do not accept the claimant’s submission that the Commission does not have the power to not include costs of stage 5 or to decline disbursements. It is clear in the legislation that the power to award costs is at the discretion of the Commission and the Regulation merely sets out the maximum that can be awarded rather than setting a mandatory requirement to assess costs for each stage.
Furthermore, s 7.37 clearly sets out that when exercising the discretion to award costs in respect of a claim for damages, the Commission may have regard to any written offer of settlement. I therefore consider that the insurer’s written “Calderbank” offer of
2 November 2022 is a relevant consideration that I may take into account.
However, having considered the submissions from both parties, I have decided to allow stage 5 costs and relevant claimable disbursements incurred after the insurer’s written offer of 2 November 2022. I am not bound by the rules of court in respect of offers of compromise, as mentioned in s 8.5 of the MAI Act.
I consider the subject claim to be essentially almost entirely hypothetically based, given the dispute was solely in respect of future economic loss with a number of variables. In such circumstances, I do not consider it to be wholly unreasonable of the claimant to have rejected the insurer’s offer of settlement.
I have not, however, allowed for the costs claimed for an “expert report” of migration lawyer, Michala Byers. Whilst I do not consider the obtaining of the report to have been unreasonable in the circumstances, on my reading of the Regulation there is no option to allow such amount. In this regard, I have read cl 20 of the Regulation to represent an exhaustive list of unregulated amounts that can be awarded.
In accordance with the costs worksheet accompanying these reasons, I award costs in the amount of $36,447.87.

CONCLUSION

In accordance with Division 7.6 of the MAI Act, the Commission’s assessment is:
(a) the amount of damages for the claim is $180,480.54, and
(b) the amount of the claimant’s costs in the matter is $36,447.87 inclusive of GST.

[2023] NSWPIC 266

23 May 2023