Peel v AAMI

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Peel v AAMI [2021] NSWPIC 495
CLAIMANT:	Karen Peel
INSURER:	AAMI
MEMBER:	Elizabeth Medland
DATE OF DECISION:	25 November 2021
CATCHWORDS:	MOTOR ACCIDENTS - Assessment of damages and liability under Part 4 of the Motor Accident Injuries Act 2017 (MAI Act); claimant a bicycle rider involved in a collision with insured driver at a “T” intersection in Iluka; whether the claimant had right of way; whether the insured driver was keeping a proper lookout; Held - found that insured driver breached duty of care and no finding of contributory negligence; damages awarded in the amount of $515,416 plus costs; application made for costs penalty under section 6.21 of the MAI Act due to unreasonable denial of liability; costs penalty of 25% applied.
DETERMINATIONS MADE:	1. On the issue of liability for the claim, the AAMI insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. The amount of damages for this claim is $515,416. 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accident Injuries Act 2017 is $47,631.19 inclusive of GST.

Reasons for Decision

Background

This claim involves a dispute as to liability and damages under the Motor Accident Injuries Act 2017 (MAI Act).
The claimant was injured when riding a pushbike in Iluka when a collision occurred with the insured vehicle.
The claimant apparently did not obtain sufficient identification information from the insured driver in the immediate aftermath of the accident. No doubt this was due to the attention being directed to her injuries. The only information she obtained was that the driver was called “Al” and his partner was named “Rachel” and they lived in Iluka.
Consequently, the claimant and her partner subsequently located the insured vehicle parked in a driveway in Iluka, confirming the registration of the vehicle and confirming the address.
A claim was subsequently lodged upon the CTP insurer, AAMI.
The insurer admitted liability for statutory benefits.
By way of letter dated 2 May 2018 the insurer advised that they would not admit liability for ongoing statutory benefits post 26 weeks due to outstanding investigations, including a statement from the insured driver.
Whilst the notice is not before me, evidently the claim for ongoing statutory benefits was formally denied.
Subsequently, a claim for common law damages was lodged with the insurer.
In a notice dated 7 July 2020, Barry Nilsson Lawyers acting on behalf of the insurer advised the claimant that the claim for common law damages was deemed denied on the basis that particulars were not exchanged and there was insufficient information to determine whether the driver involved was the insured driver, and whether the driver breached their duty of care.
The notice listed only one document as being considered in issuing the notice, being a NSW Police Report (claimant’s self-report) E67497674. This was the only document listed, despite the fact that it is evident that an investigation report of Quantumcorp dated 28 May 2020 would have been in the possession of the insurer at the time of the notice.
The aforementioned report of Quantumcorp is before me. The report states that some inquiries were made to locate and interview the insured driver, Alwyn Hosking. It is stated that internal skip trace searches were conducted to obtain contact information and the possible telephone numbers for the insured were obtained but all were found to be disconnected. Some other inquiries were made that did not locate the insured. It was stated that the residence linked to the insured driver (being the address provided by the claimant to the NSW Police) was observed, however, due to then Covid-19 guidelines doorknocks were not conducted. Letters were apparently sent to the address instead and to another address listed on the Police report. No response was received.
To my mind, the report is a relevant piece of information that would have assisted the insurer in making the determination on liability listed in the notice of 7 July 2020.
I therefore consider the non-provision of same to be a breach of a duty of good faith as required under section 6.3(3)(a) of the MAI Act to provide copies of all relevant information relied upon to make a decision on the claim.
A further liability notice was issued by the insurer’s solicitors on 10 September 2020. This notice denied liability for the common law claim for damages. In doing so, the insurer relied upon a further investigation report of Quantumcorp dated 25 August 2020. That report sets out in clearer detail the efforts of investigators to locate the insured driver including telephone numbers possibly linked to the insured – with all appearing to be disconnected. Some attempts were made to contact the insured owner, Ms Rachal Hosking, however they were unsuccessful. The report also confirmed that no doorknocks were made at the provided address of the insured in Iluka and instead a letter was posted on 18 May 2020, with no response received.
On the basis of the investigations set out in the Quantumcorp report, the liability notice stated that “the insurer has now exhausted all available lines of enquiry to try and locate the driver of the vehicle alleged to have been at fault in this accident”. The notice also includes a number of points detailing how the insurer was unable to determine whether the insured vehicle was involved in the accident or whether its driver was at fault. The denial is said to be “based on the fact that the driver of the vehicle alleged to be at fault cannot be located and given there is no independent corroboration of the accident circumstances.”
The matter was initially listed for an assessment conference on 27 April 2021. On that occasion, Counsel for the insurer made an adjournment application on the basis of late material served by the claimant. That material included a further statement of the claimant and a statement of her partner, Mr Gow. Those statements were served only a number of hours before the assessment conference. Those statements dealt with steps taken to locate the insured driver.
It was submitted that the insurer would not be afforded procedural fairness if the matter proceeded without the opportunity to investigate the veracity of the information contained within the statements.
I granted the adjournment on the above basis, however, I also pointed out that I found it less than satisfactory that the insurer had taken no further steps to locate the insured driver since August 2020 (as set out in the Quantumcorp report of 25 August 2020). In this regard, I note that initial lockdown restrictions in 2020 began to ease in May 2020 and progressed where there were little restrictions in place up until the Delta outbreak in June 2021.
It would seem that the insurer took on board my comments mentioned above, as further attempts were finally made to locate the insured driver. In this regard, a statement from Mr Hosking is before me dated 6 May 2021. The content of the statement confirms Mr Hosking to be the insured driver as initially alleged by the claimant.
The statement was served upon the claimant by way of letter from the insurer’s solicitors dated 11 May 2021. The letter confirms that the insurer had verified the accident and in light of the information contained within the statement of Mr Hosking the insurer denied the insured driver had breached his duty of care.
In response, the claimant provided supplementary written submissions dated 29 June 2021. The submissions go to the issue of liability, but also make an application for a costs penalty under section 6.21 of the MAI Act. This is dealt with further below.
A further assessment conference occurred on 21 July 2021.

Documents Considered

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

Evidence as to liability

The accident was not initially reported to police. Ten days after the accident the claimant reported the matter to police for the purpose of lodging a claim for compensation. The NSW Police report records the claimant’s version, relevantly, as follows:
“…she was riding her bicycle along the main road to Iluka heading into the town of Iluka when a vehicle being a red Holden utility registered number CD89AP came out of Frazer’s Reef Road access near to the intersection of Johnson’s Lane colliding with her causing her to fall from her bike and the bike to be wedged under the front of the said ute.”
The Application for Personal Injury Benefits dated 1 February 2018 includes a version stating that the claimant was riding on a designated bike path and as she neared the intersection of Frazier’s Reef Road she observed the insured vehicle stationary at Frazier’s Reef Road at the intersection with Iluka road. She said that she continued to ride her bicycle when all of a sudden, the insured moved forward and collided with her causing her to fall off her bike. The version alleges that the insured was turning left onto Iluka Road and failed to give way to her.
The claimant has provided a statement dated 22 January 2021. That statement sets out a more fulsome version of events. It details how at the time of the accident the claimant was riding with her partner, Craig Gow, and her step-son who were both riding behind her at the time.
It is explained that the bike path they were riding on was on the easterly side of Iluka Road. She then goes on to state:
“As I approached the T intersection of Iluka Road and Frazer’s Reef Road I noticed a stationary red utility on Frazer’s Reef Road. I continued to ride my bicycle towards this intersection. As the red utility had come to a complete stop and I was on a dedicated bike lane on the main road I anticipated that the driver would look towards me before entering the road. I slowed down but continued to ride my bike towards the intersection and the car remained stationary until just before I entered the intersection when he proceeded. I attempted to turn right to avoid the collision however it was too late to avoid the collision. The driver had stopped and I had no reason to believe that he would proceed without giving way to me. I was ambling along. I was not riding quickly. I would not have been riding faster than 10kms per hour. I was only 1 to 2 metres from the intersection when the car started to move. There was nothing to obscure the driver’s view of me if he had looked to his left. He later told me words to the effect “I know its holiday time I should have been more aware of the bike path.” I recall the driver’s wife throw her arms up. He said later “I only knew you were there because my wife was screaming.”

I saw the driver of the utility look to his right. He then proceeded to turn left onto Iluka Road without looking to his left. I was around 2 metres away from him at the time he started driving forward. I turned to my right to try and avoid a collision however my bicycle became lodged under the front bumper of the vehicle pinning my left leg under my bicycle.”

It is then stated that the insured placed the bike in the back of his utility and drove her back to the camping ground where she was staying. The claimant alleges that the insured apologised to her on a number of times during the trip and allegedly stated that the accident was his fault.
The statement annexes three photographs of the accident site – which are discussed further below.
Also provided is a statement of Craig Gow dated 22 January 2021. Mr Gow is the partner of the claimant.
He states that he was riding his bicycle approximately 50 metres behind the claimant prior to the accident. He noticed the insured vehicle. He then states “without warning the vehicle then moved forward into the bike lane to turn left onto Iluka rd and collided with Karen on her bike”.
It is stated that the accident happened in “the blink of an eye” and the claimant had nowhere to go and he thought the claimant had right of way and there was nothing to indicate she could not proceed past the insured.
As mentioned above, the insurer eventually took steps to locate the insured driver, Alwyn Hosking, and a statement is before me dated 6 May 2021.
The insured explains that unfortunately his wife, who was a passenger in the vehicle at the time of the accident, passed away in January 2019.
It is confirmed that the insured had driven his vehicle many times at the accident scene and he was very confident and competent when driving it. He explains that on the date of the accident he was travelling from the beach area to Iluka town and described the weather conditions to be fine and it was a hot day. He concedes that the visibility was good.
The insured noted that Iluka road is the main road leading into town and that he was aware that there was a designated cycleway on the eastern side of that road. He describes that the cycleway is a continuation of the bitumen surface of Iluka Road and that there is a painted line to the left of the claimant in the direction she was travelling and a white line like a fog line to the right of her.
The insured then states at paragraph 28:
“As you get to the start of Frazers Reef Road, the line of the cycleway stop just before the intersection. As a cyclist the path actually stops. Having said that I don’t know the legalities of whether or not the cyclist had to give way. From my perspective I was driving out of a proper road, there was not Give Way sign and once I had checked for vehicles, I should have had the right to continue out.”
The insured states that there was a road sign that was much taller than the one that was currently at the site. He states it is a sign between the pushbike riders heading north and the vehicles coming out of Frazers Reef Road. He describes this sign as an obstruction and apparently the sign was reduced to the size it is now after contact was made by his wife to National Parks. He then states at paragraph 46:
“I had driven along Frazers Reef Road and we arrived at the intersection of Iluka Road.
I intended to turn left and put my left indicator on. Because I was turning left and there was no concern about cars coming in that direction, I looked left for a glimpse and I did not see anything on that side. I would suggest at that time that the claimant was obscured behind the sign that I have mentioned. I turned my head right to see if there was any oncoming traffic. I crept forward a bit further to have a further look to the right because they come down there at 80kph. At the time I crept forward I heard her bike brakes squeal. There was a bump. At that time I was going very slowly and I instantly it the brakes and the car came to a stop at that same moment.”
The statement makes it apparent that the insured did not realise he had collided with a cyclist until after he exited the vehicle. He confirms that he took the claimant and her bike to where she was saying that “during the trip there was a lot of apology on my part”. He goes on to state that he was not really sure who was at fault given that the bike lane is on the “incorrect side of the roadway and cyclists head in the opposite side of the roadway”.
Mr Hosking also mentions in the statement that he “simply did not see her”.
Before me are a number of sets of photographs of the accident scene.
Dealing firstly with two photographs attached to a statement of Melanie Loomes (a solicitor in the employ of the claimant’s solicitors). These photographs are said to have been received from the claimant on 30 January 2018 depicting the accident scene. The first photo is taken from Frazers Reef Road at a point appearing to be a few metres from Iluka road. It depicts a sign for traffic approaching Iluka road that states “WATCH FOR” and has a picture of a bicycle below. It also includes to the left of the intersection on the corner of Iluka road and next to the bike path a national parks sign. I have assumed this to be the National Parks sign referred to by the insured in his statement dealt with above.
During the course of the assessment conference it was indicated that the insured would be available by phone for questioning. However, counsel for the claimant indicated that questioning would not be required if he was to confirm whether the accident site as depicted in the two photographs represented the accident site at the time of the accident. Ms Drew, the insurer’s solicitor was given an opportunity to raise that question with the insured and report back. Ms Drew re-entered the assessment conference a short time later and stated that the insured had the opportunity to review the photographs and had no reason to suggest that the photographs did not represent the scene at the time of the accident. Accordingly, I have assumed that the National Parks sign as depicted in such photograph is at the height it was at the time of the accident.
The claimant’s statement of 22 January 2021 also includes the two photographs mentioned above, in addition to one other. The second photograph depicts the subject intersection but is taken from what appears to be the centre of Iluka road with the Frazers Reef Road up ahead by around 20-30 metres to the left.
The third photograph is taken from a point on Frazers Reef Road close to Iluka Road and depicts the bike path to the left where the claimant travelled from prior to the collision. It shows two white lines presumably depicting the bike lane with the white line to the right of where the claimant was traveling ceasing several metres prior to the intersection. It is to be noted that whilst that line ceases there is no line, broken or otherwise, running perpendicular to the white lines of the bike path.
Also before me are 11 photographs seemingly taken as part of a factual investigation. The first photograph is taken approximately 50 metres north of the intersection of Frazers Reef Road. It demonstrates a merging lane after the intersection and after a painted picture of a bicycle presumably depicting the presence of the bike lane.
Photograph 6 depicts Iluka road from the perspective of the insured driver. Similar to the photograph discussed above provided by the claimant, this photograph depicts the National Parks sign and also the bike lane where the inside white line at the position of the bike lane stops prior to the intersection. This fact is displayed more clearly by a number of photographs taken from the perspective of the claimant travelling towards the intersection.
I also have before me photographs apparently taken by the claimant’s solicitor. Those photographs are not accompanied by descriptions. The first 6 photographs depict the intersection and are similar to the photographs described above. I do not consider these photographs take the matter any further and I have not taken them into account in my determination. The remaining photographs do not seem to correspond with the photographs provided by the claimant and the investigators. Given they come with no description and I cannot reconcile them with the remaining photographs and evidence
I have also not taken the photograph’s taken by the claimant’s solicitor into account.

Liability evidence at the assessment conference and submissions provided by the parties

The claimant confirmed that the photographs attached to her statement depict the scene at the time of the accident.
Under questioning from Mr Ronzani, counsel for the insurer, the claimant stated that she first noticed the insured when she was close enough to see the vehicle was stationary and that she could see his head looking in the other direction. She confirmed that she never saw the insured look at her prior to the accident and only saw him looking in the other direction. She also could see that he was wanting to turn left and she confirmed that she knew that their paths would cross. Mr Ronzani asked the claimant that seeing that the insured was not looking at her she continued on her bike towards him, and she confirmed that she did.

When asked why she did not stop her bike prior to the intersection given that she could stop quicker than the insured, she answered by stating that “he was already stopped”. She further stated that she was on the bike path and she continued on the assumption that he would look.
The claimant confirmed Mr Ronzani’s statement that the sign before the intersection with the picture of the bike is not a bike path sign and just a sign saying to look out for bikes. The claimant agreed.
Mr Ronzani put to the claimant that the bike path ends prior to the intersection. In this regard, he referred her to the photographs attached to her statement and noted that there are two white lines with one of those lines stopping (as I have described above from the photographs). It was put to the claimant that this meant that the bike lane ended. The claimant did not agree with this proposition and instead suggested the bike path continued all the way down. The claimant confirmed that she agreed with the proposition that the only line facing directly in front of the insured was a broken white line.
The line of questioning suggesting that the bike path ended prior to the intersection was continued and the claimant at one point questioned why there was no sign saying to give way to vehicles if that was the case.
Finally, Mr Ronzani put to the claimant that she knew the insured had not seen her, and from her perspective she continued cycling knowing that he had not seen her and knowing that he was going to turn left in front of her and as such the accident was entirely her fault. The claimant disagreed with such proposition. Similarly, when it was put to the claimant that all it would have taken to avoid the collision was to stop and make sure that the insured saw her, she responded by stating that it was his responsibility to look and denied that she was responsible.
In respect of the insured apologising to the claimant it was put to her that the reason he was apologising to her was because she was hurt and that was all. The claimant responded by stating that no, he apologised because he hit her and did not look despite knowing the bike path was there and it was holiday time.
The claimant’s initial submissions are provided on the basis that liability was denied due to insufficient information to verify that the vehicle alleged was the vehicle involved in the accident. The submissions are then provided on the basis that subject to vehicle identification the insurer does not contest liability but alleges contributory negligence (as set out in the statutory benefits post 26 weeks liability notice).
As noted above, subsequently the insurer when serving the statement of the insured denied that the insured had breach his duty of care.
The submissions note that the claimant was riding along in the bike lane in the road which had priority and the vehicle was stationery and whilst the claimant was obliged to take care of her own safety such duty did not extend to her stopping at an intersection:
(a)    where she was on the priority road;
(b)    on a bike lane, and
(c)    where the driver was obliged to give way.
The insurer’s initial written submissions set out that liability is denied preliminary on the issue surrounding identification of the insured vehicle. This has since become a moot point. However, the submissions go on to state that if the insurer was to fail on the primary submissions, in the alternative the insurer seeks a reduction of 25% for contributory negligence. However, once confirming the identification of the insured and serving a statement of Alwyn Hosking, the insurer denied liability outright on the basis that the insured did not breach his duty of care.
Insofar as the original written submissions of the insurer are relevant it is submitted that even knowing that the driver was not looking in her direction the claimant nevertheless proceeded anyway into the path of the driver and the collision occurred. It is then stated that “whilst the at fault vehicle should have looked both left and right prior to moving further forward, this does not excuse the claimant from keeping a proper lookout”.
The submissions then allege the claimant failed to keep a proper lookout when it was obvious that the driver did not see her and in “electing to assert her right of way” knowing that the driver was not looking in her direction and “somehow assuming that the alleged at fault driver would do the right thing and give way to her, the claimant has contributed to the motor vehicle collision”.
The claimant relies upon supplementary submissions on liability drafted by counsel,
Mr Callaway, dated 29 June 2021. These submissions deal directly with the insured driver’s statement. It is submitted that given that the insured had not been asked to recall the events of the accident until recently his recollection is understandably vague. It is noted in this regard that he could not describe the bicycle and was unable to recall whether the claimant was wearing a helmet.
It is submitted that the absence of give way sign is not to the point as it is clear from paragraph 38 that Mr Hosking was aware which road had priority. It is also pointed out that at the time of the accident there was a sign warning of the presence of bicycles. In addition, it is noted that the insured acknowledges that bikes are able to ride on the incorrect side of the roadway and head in the opposite direction to the flow of traffic.
In respect of the insured referring to a sign, a sand mount and a thick line of bush and trees on the left that obscure vision, it is submitted that in the exercise of reasonable care the insured was clearly required to look beyond the sign, if there, the sand mound and the thick line of bush.
The submissions suggest there is no sign there, however, reliance on it is not an excuse for not seeing the claimant. Moreover, it is submitted that the explanation is based on an ex post facto reconstruction and ignores a driver’s duty to take reasonable care and that the presence of any obstruction should have caused the driver to take more than a glimpse to the left. In this regard, it is noted that the insured speculated in his statement that the claimant was behind the sign when he “looked left for a glimpse”.
It is concluded by submitting that the insured’s statement essentially confirms breach of duty of care on his part on any view of the law.
The insurer’s position on liability changed substantially during the course proceedings. Namely, from denial of liability due to identification issues and in the alternative 25% contributory negligence, to an outright denial of liability/breach of duty of care following the service of the insured’s statement. Despite the significant shift in its position on liability, no further written submissions were provided outlining the basis of such change in position. During the course of preparing this determination I had an officer of the Personal Injury Commission confirm with the insurer’s solicitors that no further written submissions were relied upon and instead the oral submissions of Mr Ronzani provided at the assessment conference were relied upon.
At the assessment conference Mr Ronzani made submissions that confirmed a further shift of the insurer’s position on liability. It was noted that the written submissions alleged 25% contributory negligence, but instead he submitted that the liability of the insured was at 50%. It was submitted at the conference that the situation involved two people approaching each other and apparently not looking and they collide and on that basis they are both at fault. It was further stated that there was even argument that contributory negligence should be more than 50% given the claimant just expected the insured to look and took the risk and that “somehow” as a cyclist she had a superior right to keep going down and this was a substantial breach on her own part.

Liability findings and reasons

From the line of questioning of the claimant it appears that the insurer suggests that the bike lane the claimant was travelling in ended and the claimant was required to give way to the insurer. This is not made explicitly clear, however, and was not a direct submission made, but rather was a point put to the claimant. The claimant denied this to be the case.
Having carefully examined the photographs I have before me, it is true that there were two white lines where the claimant was riding her bicycle prior to the collision. It is the case that of those two white lines the one closest to the kerb ceases on approach to the intersection. However, of crucial importance is the absence of a perpendicular line, broken or otherwise, that clearly indicates that the bike lane comes to an end. Moreover, there is no signage for bicycles requiring them to give way to vehicles travelling in or out of Frazers Reef Road.
On the above basis, and particularly considering the presence of the sign on Frazers Reef Road just before the intersection that warns to watch for bicycles, I consider that in the circumstances the claimant had right of way to travel across the intersection and the insured driver was required to give way to vehicles and bicycles.
Whilst the insured notes in his statement there is no give way sign, I agree with the submissions relied upon by the claimant that he nevertheless acknowledges that he was entering a priority road. Whilst there was not a give way sign, there was a sign warning to watch out for bikes. Of course, the accident site involves a “T” intersection with the insured wishing to enter the priority roadway. It is therefore clear that he was required to give way. This would account for the insured coming to a stop at the intersection before entering Iluka road.
I note that the above findings are consistent with the conclusions of expert, Nigel McDonald, as set out in his report of 15 January 2021. The insurer has provided written submissions in respect of the report, however, they mainly centre on the now resolved issue as to the identity of the insured vehicle. It is submitted that given that the was no verification of the correct vehicle the liability report was of no assistance.
However, given that the identity of the insured is resolved, the insurer’s submission in respect of the report no longer has any weight.
Mr McDonald concluded from his examination of the accident scene that the traffic exiting from Frazers Reef Road were required to give way to bicycles travelling along the bicycle lane. I accept this conclusion for the reasons set out in his report and for the reasons set out above.
In respect of the issue of the insured’s vision being obscured by the National Parks sign, as set out above, it was confirmed during the assessment conference that the insured driver acknowledged that the scene of the accident is as is depicted in the photographs attached to the statement of Melanie Loomes. I have considered those photographs and see no basis to contend that the claimant would have been obscured such that the insured would not have seen her if he was keeping a proper lookout. In the absence of any expert evidence that contradicts my observations I reject a suggestion that the insured driver would not have seen the claimant had he been keeping a proper lookout.
From the written submissions and the submissions provided at the assessment conference, the insurer suggests that I should make a finding of contributory negligence on the basis that the claimant states that she saw the insured driver stationary and look to his right but did not see him look to his left. The insurer submits that even knowing that the driver was not looking in her direction of travel she nevertheless proceeded anyway.
The insurer, acknowledged that the insured should have looked both left and right, however, that fact does not excuse the claimant from keeping a proper lookout. The insurer then submitted that in circumstances where it was “obvious” that the insured did not see her, there was not a regard for her own safety.
In her statement of 22 January 2021, the claimant stated that she anticipated that the driver would look towards her before entering the road. She noted that the insured had come to a complete stop. She also stated that she saw the driver look to his right and proceeded to turn left without looking to his left. She stated that she then turned to her right to try and avoid the collision however the bike became lodged under the front bumper.
At the assessment conference, under questioning, the claimant confirmed that she never saw the insured look at her, and instead only in the other direction. She confirmed that she assumed that he would look the other way and see her. She was asked as to why she did not stop when it was easier for her to stop than him. In answer, the claimant stated that the insured was already stationary. She went on to explain that she was on the bike path and as such she assumed that the insured would look her way.
I accept the claimant’s explanation that she had assumed that the insured would look and see her. I find it reasonable that a person in the position of the claimant would assume that a stationary vehicle who was obliged to give way to her on a bicycle would look and see her. I accept that on that basis it was reasonable for the claimant to continue on her path on such assumption. Whilst she admits she did not see the insured look in her direction, the evidence was not that she had her eyes fixed on the insured driver’s head movements for the entire relevant period. The insured vehicle was stationary, the claimant had right away and I find it was a reasonable assumption in such circumstances that the insured would give way to her bicycle. I accept the submission that the claimant proceeded on the basis that she had expectation that he would look and that a stationary vehicle would remain stationary until it was safe to proceed. I therefore do not find that the claimant failed to keep a proper lookout.
The insured acknowledges in his statement that he “simply did not see” the claimant. Whilst mentioning that there was no “give way” sign he acknowledges that he was required to give way to vehicles to enter the roadway. Moreover, there is no denial of the existence of the sign at the intersection cautioning drivers to look out for bicycles. On the evidence before me I find that the insured failed to keep a proper lookout and proceeded forward when it was unsafe to do so.
On the above basis, I reject the insurer’s submission that a finding of contributory negligence should be made. I instead find that the insured driver breached his duty of care and was wholly at fault for the accident.

Injuries

The insured driver transported the claimant to her accommodation in Iluka. She later attended Maclean Hospital on 8 January 2018. There, she was found to have haematomas and contusion and a calf tear. Other than applying ice, she was advised to attend physiotherapy.
The claimant later attended upon her GP and a number of scans were subsequently performed. A Grade 2 left medial muscle tear was found and an MRI of the left knee on 29 January 2018 found a tear of the posterior cruciate ligament. An MRI of the left shoulder (20 February 2018) demonstrated a partial-thickness tear of the supraspinatus tendon.
Thereafter, the claimant attended upon Orthopaedic Surgeon, Dr Graze, who confirmed a partial-thickness tear of the supraspinatus tendon and ordered a cortisone injection. He also performed an arthroscopic reconstruction of the left posterior cruciate ligament at John Flynn Hospital. She was on crutches for eight weeks and underwent physiotherapy.
She attended upon Dr Graze for review in May 2019 and he suggested a possible arthroscopy of the left knee if her ongoing grinding at the patella persisted. The claimant continued exercise physiology and started to feel better physically. However, on 8 August 2019 her left knee stiffened up without warning, causing her to lose balance and she fell heavily, twisting her left ankle into inversion when falling. She was thereafter put in a Cam walking boot with crutches for eight weeks due to a fracture in the left ankle.
Dr Graze performed an arthroscopy of the left knee in August 2019. The claimant has continued with her physiotherapy for her left knee and left ankle.
The claimant relies upon a report of Dr Oates, occupational physician, dated 9 April 2019. Dr Oates confirmed the injuries as set out above. He provided an opinion that the claimant would not be fit for her pre-injury duties as a dressmaker.
An updated report of Dr Oates dated 10 March 2020 noted that the claimant complained of a constant ache in the left knee, leg and left ankle with numbness down the anterior shin from the knee to the foot. It was noted that the left ankle swells at times and is generally thicker than the right. It was noted that she cannot kneel on the left knee on hard surfaces and has difficulty squatting.
In terms of function, it was noted that the claimant can walk for around an hour and can also sit for an hour and then has to get up to move the left leg around. When sitting she must change the position of her leg. She is able to stand for one hour if moving. It was also noted that she has difficulty with stairs.
In terms of prognosis, Dr Oates provided a guarded opinion, particularly in respect of the left knee. He stated that deterioration is anticipated in the knee. He noted that the claimant indicated that the left shoulder had improved over time, however, if there was future deterioration she may require arthroscopic surgery.
The claimant also relies upon the opinion of general surgeon, Dr Hopcroft as expressed in his report dated 12 August 2020. His opinion is similar to Dr Oates in confirming the diagnosis of a rotator cuff tear of the left shoulder. He noted ongoing left ankle joint pain with a possibility of ligamentous avulsion. For this he recommended a further MRI. Dr Hopcroft also noted paraesthesia and numbness radiating down from the front of her left leg to her foot, suggestive of a radiculopathy and recommended an MRI of the lumbar spinal to exclude possibility of discal disruption.
Dr Hopcroft did not consider the claimant to be a candidate for future surgery. He finally noted some tenderness in the left calf muscle and some surface anatomical changes but noted a full range of movement of the left ankle joint.
The claimant thereafter underwent MRI scans of the lumbar spine and left ankle, as recommended by Dr Hopcroft. Dr Hopcroft noted the MRI findings of the lumbar spine that showed a L4/5 herniation with no neural compression. He noted however, that the scan was taken in a supine position and he stated that it is highly likely that the herniation was the cause of the radicular symptoms radiating into the left leg. However, the MRI scan demonstrated no need for neurosurgical review or intervention and he instead recommended a program of core strengthening.
In respect of the ankle, Dr Hopcroft noted no orthopaedic surgical correctable problem at the site, and instead it was a significant sprain injury of the ankle which was proving chronic. He stated his opinion that the claimant would be a candidate for a hydrocortisone and local anaesthetic injection to the left ankle joint.
Assessing injuries to the lumbar spine, left ankle, left knee and left shoulder,
Dr Hopcroft assessed a 23% whole person impairment.
The claimant also alleges psychological injury. In this regard, an opinion of
Dr Scurrah, psychiatrist, is relied upon as set out in his report of 7 June 2019. He provided an opinion that as a result of the accident the claimant developed a chronic Post Traumatic Stress Disorder and a chronic Depressive Disorder. It was also noted that prior to the accident the claimant was drinking excess alcohol in a pattern of Alcohol Abuse and since the accident this has increased to the level of one bottle of wine a night which constitutes Alcohol Dependence.

Dr Scurrah noted that the claimant re-experiences aspects of the accident in daytime thoughts/ruminations and nightmares. Triggers include being a passenger in a car, being on the side of a road or walking along a bicycle path. The claimant’s mood was noted as low, however, had improved with antidepressants. Other symptoms include sleep disturbances, daytime tiredness and impaired concentration. She was noted to have irritability and suffer from panic attacks.
Dr Scurrah assessed a whole person impairment of 18%.
The insurer relies upon a report of Dr Wyatt, Occupational Physician, dated 14 October 2020. Dr Wyatt confirmed the diagnosis of posterior cruciate ligament tear of the left knee, a left calf muscle tear and a worsening of a previous left shoulder rotator cuff tear.
In terms of prognosis, Dr Wyatt considered the claimant would have similar symptoms in the short term with some room for improvement over the medium term. However, long term it was stated that the claimant will likely develop post-traumatic osteoarthritis at the left knee in the decades to come. In terms of the left ankle it was stated that the claimant could expect symptoms to improve, however, she may have some lingering soreness. In relation to the left shoulder, the doctor noted the injury had settled, however, she would likely have continued difficulty with a lot of repetitive tasks and difficulty with activities above shoulder height.
Dr Wyatt considered that the claimant would be expected to require joint replacement surgery of the knee, however, it was difficult to determine when that need would arise. She also opined that such replacement would require revision after 15 – 20 years from the surgery.
In respect of whole person impairment, Dr Wyatt assessed the left shoulder, left knee and left ankle. She provided an assessment of 11% whole person impairment.
The claimant has acknowledged past injuries of ligament damage to the right ankle in 2012 and symptoms of bursitis in the left shoulder, necessitating a steroid injection in December 2017.
The evidence demonstrates that there is little dispute as to the extent of the claimant’s injuries, despite a difference in opinion of the medico legal experts in terms of whole person impairment. It is noted that Dr Wyatt does not discuss the diagnosis of a lumbar spine injury as set out in the reports of Dr Hopcroft. In the absence of any evidence that refutes the opinion of Dr Hopcroft and accepting the claimant’s complaints of pain that the doctor described as likely being radiculopathy, I accept that the claimant also suffered a lumbar spine injury as a result of the accident.
It is also noted that the insurer does not rely upon an expert psychological opinion.
I am informed that the claimant did attend upon a psychiatrist for assessment at the request of the insurer. However, the resultant report is not before me and is not relied upon. I therefore infer that the conclusions of that medico-legal report do not assist the insurer’s case.
I note, relevantly, that Dr Wyatt in her report acknowledged the existence of psychological symptoms as a result of the accident which affect her capacity for employment.

Non-economic loss

The insurer has conceded the claimant’s entitlement to damages for non-economic loss.
I have before me two separate documents relied upon by the claimant with submissions on damages. One set of submissions makes a claim of $280,000 for
non-economic loss. In making such claim the submissions note the left knee reconstruction and subsequent arthroscopy and the fact the claimant remains dependant on Endone, Panadol, Nurofen and Voltaren for pain relief.
It was noted the claimant’s career prospects and opportunities had been removed.
A separate set of submissions/schedules makes a claim of $400,000.
The insurer submits in written submissions that the claimant’s claim is excessive, referring to the claim of $400,000. It is submitted that on any basis does not fall into the category of the most severely injured of claimants and that she had made a reasonable recovery.
Relying upon the opinion of Dr Wyatt it is submitted that the claimant has only modest ongoing issues almost exclusively to the left knee and on such basis, submits and allowance of $180,000 is appropriate.
I do not accept the insurer’s submissions in respect of non-economic loss. The submissions fail to take into consideration the seriousness of the claimant’s ongoing issues. In addition, no regard appears to have been made in respect of the psychological aspects of the claimant’s ongoing disabilities. In this regard, it is noted that the insurer has not served the psychiatrist medico legal report in their possession. As mentioned above, I have drawn an inference that the opinion of such doctor did not assist the insurer’s case.
The claimant has suffered a significant adverse impact on her enjoyment of life as a result of the accident. Not only has she undergone surgical procedures with lengthy recovery periods, she has constant pain and disability requiring reliance on pain killing medication. She has the prospect of further surgical interventions. The claimant’s plans for her future in terms of her career have been derailed.
The claimant’s partner, Craig Gow, in a statement dated 22 January 2021 noted the various impacts of the accident on the claimant. He noted that she often yells out and screams in her sleep. He noted that she no longer cares for her appearance as much. Mr Gow also mentions an increase in alcohol consumption and that the claimant no longer enjoys physical activities such as jogging, biking and swimming.
Mr Gow also noted that the claimant is less social and prefers to stay at home. He noted that their relationship has been adversely affected by the accident and that she is no longer the person that she was.
In the circumstances, I consider an amount of $250,000 to be an appropriate allowance for non-economic loss and I award same.

Past economic Loss

At the time of the accident the claimant was working two to three days a week as a shop assistant at Mullumbimby Jewellers allegedly earning approximately $380 net per week. This work began in 2010. In addition, she worked a further two to three days per week carrying out work in her dressmaking business. It is submitted that she was earning approximately $580 net per week from her business, however, the business was growing at the time of the accident and the claimant expected to receive $1,000 net per week from this business.
Following the accident, the claimant took off a week from work and returned to her work at the jewellery store. The claimant underwent her knee operation on 5 April 2018 and did not return to work thereafter until approximately September 2018. It is said that her hours increased slowly, however, her employment was terminated in March 2019.
Unfortunately, since the accident the claimant has not returned to her dressmaking business owing to her physical and psychological injuries.
The claimant has since been able to secure alternative employment since approximately October 2018 performing sewing work for “Sandie’s Sewing” which carries out bulk sewing of pre-cut garments. It is submitted that this work is much less onerous than the work carried out in her own dressmaking business, however, the work is still physically demanding. It is submitted she works more slowly than she would have if not for her injuries. It is stated that she can only work approximately four to five hours per day. Her hours have gradually increased to 20 hours per week, and since October 2020 those hours have increased to approximately 25 hours per week, earning approximately $477 net per week. From the claimant’s statement, it appears that this work increased during the Covid-19 pandemic because of the slower turnaround with overseas manufacturing.
The claim for past economic loss amounts to $179,667 inclusive of superannuation as at April 2021. This amount takes into consideration amounts earned since the accident. Accordingly, the claim is calculated on the basis of $1,380 net per week less amounts earned.
The insurer, in written submissions, submits that the claimant’s pre accident earnings were less than what is claimed. The insurer calculates that the taxation records appear to demonstrate that the claimant’s sewing business was generating, on average, an amount of $200 per week at the time of the accident. Further the insurer submits that its calculation based on the evidence is that the claimant’s net earnings at the time of the accident, from both jobs, was closer to $630 net per week.
Whilst the claimant suggests that the loss of employment at the jewellery store was at least partly related to her injuries, the insurer instead submits that the evidence is that the claimant was retrenched as a result of the business no longer requiring her services. It is therefore submitted that the loss of income from the loss of this employment should not be assessed as being lost as a result of the accident.
The insurer considers it more appropriate to award a buffer amount and suggests a figure of $60,000 for past economic loss.
In her statement of 22 January 2021, the claimant states that her business was growing at the time of the accident and her intention was to build up that business and cease the jewellery shop work.
Also before me is a statement of Jessica Johansen-Bell dated 23 March 2021.
Ms Johansen-Bell is the owner of clothing brand, Johansen. She states that she engaged the claimant in around 2015 or 2016 as her patternmaker. It is stated that she was engaged as a contractor and charged $50 per hour. It is stated that she was therefore paying the claimant around $300 to $700 per sample created.
Ms Johansen-Bell states that up until the accident the claimant was her only patternmaker and it was her intention to give the claimant all of her pattern making work as she considered the claimant to be a great worker. The statement includes invoices for the 12 months prior to the accident which total $10,698 excluding GST.
It is stated that due to the accident rendering the claimant unable to perform the work, Ms Johansen-Bell moved her entire production to China as she was unable to source another pattern maker like the claimant locally. It is further stated that if the claimant was not injured then she would have kept her production in Australia, and only moved because she could not source a local pattern maker.
Ms Johansen-Bell also states that in approximately August 2018 she was contacted by the stylist of celebrity, Kylie Jenner, asking for a range of styles from her collection for consideration for Kylie’s 21^st birthday. Subsequently, Ms Jenner posted to social media images of her wearing one of Ms Johansen’s designs, of which the claimant had made the pattern.
As a result of the social media posts of Ms Jenner, Ms Johansen-Bell states that her business went from around 40 samples per year (produced at the time of the claimant’s accident) to around 180 patterns per year. It is then stated that if the claimant was still working for her, she would have engaged the claimant to carry out all of this work.
I have before me the taxation returns and notices of assessment for the financial years 2013 to 2019. I have noted the earnings from the jewellery shop assistant work. On my calculations for the financial years 2016 and 2017 the claimant was earning, on average between approximately $376 net per week and $396 net per week over those two years. I therefore accept the earnings from such work of $380 per week as alleged by the claimant.
In terms of work from her business, the taxation records, and the invoices provided by Ms Johansen Bell do not support the claim that the claimant was earning approximately $580 net per week prior to the accident. The earnings from the business vary during the financial years prior to the accident, however, there does appear to have been an upward trend in those earnings.
For instance in 2015, earnings are declared of $4,323. This increased to $6,030 in the 2016 financial year and were declared as $10,859 for the 2017 year. For the 2018 financial year business earnings are declared of $7,742. Noting that the accident occurred in early January 2018, and therefore she ceased her business activities in the middle of the financial years, I find that the claimant’s earnings were indeed increasing from her business.
Moreover, I accept the evidence of Ms Johansen-Bell that she would have engaged the claimant to perform increased work, particularly after the increase in sales following the Kylie Jenner social media posts in her design.
However, I do not accept the proposition that the claimant would have had the capacity to perform the entirety of the increased work that Ms Johansen-Bell may have offered. Going from 40 patterns to 180 patterns is a 4.5 times increase. I instead accept that the claimant would have had the capacity of approximately a little more than double the workload she was undertaking at the time of the accident making patterns from
Ms Johansen-Bell.
I accept that the claimant is not fit to perform her previous work as a dressmaker. In this regard, the medical opinion obtained by both parties accept that the claimant would have difficulty with this work owing to both her physical and psychological injuries.
I do not accept the claimant’s allegation that her employment with the jewellers was ceased due to her injuries. In the absence of objective evidence that clearly demonstrates this I do not accept this claim.
On the basis of business earnings for the first half of 2018, and noting an upward trajectory in business earnings, I consider it reasonable to assume the claimant, but for the accident would have been earning around $300 per week from such business at the time of the accident.
I accept that the claimant’s work would have increased to at least double from around October 2018 when Ms Johansen-Bell’s business substantially increased. Given the increase in work, and in line with the claimant’s stated intention when her business increased, I find the claimant would have left her work at the jewellery store to focus on the business.
I therefore, find that from approximately October 2018 the claimant would have earned, but for the accident, approximately $700 net per week from her dressmaking business. From between the date of accident until October 2018 I find the claimant, but for the accident, would have been earning in the order of $300 per week from her business.
In terms of lost earnings from the jewellery shop assistant work, it is noted the claimant initially had one week off work and around five months off work following her knee operation. In addition, I accept there were likely periods where her hours were reduced due to her injuries. I allow an amount of $15,500 (inclusive of superannuation) for loss of earnings as a jewellery store assistant caused by the accident.
I also allow an amount of $300 per week for loss of income from the claimant’s business from the date of the accident until October 2018 (say, 39 weeks) totalling $11,700.
From October 2018, I allow an amount of $700 per week for loss of business earnings, less $477 earned from the claimant’s work with Sandie’s Sewing since October 2018. For 163 weeks, this totals approximately $36,500.
I therefore award a total amount of $63,700 for past economic loss.

Future economic loss

A claim is made on a buffer basis in the amount of $300,000.
The insurer notes the claimant’s reduced capacity and submits a buffer of $150,000 should be awarded.
The claimant is currently 54 years of age. I accept that the claimant’s claim that she would have increased her business activity and would have likely worked until at least age 70, but for the accident.
I also find that the claimant is currently working at her capacity earning approximately $477 net per week. I accept the opinion of Dr Oates that the claimant has a capacity for up to 20 hours per week of light work. This is consistent with the opinion of
Dr Wyatt, who agreed that the claimant is suffering from an ongoing incapacity due to her physical injuries. Dr Wyatt does not provide an opinion as to specific hours the claimant would be fit for, however, does state that the claimant would be fit for two days at the jewellery store if her employment was not terminated.
For the reasons set out above, I do not accept the claim that the claimant would have expected to receive $1,000 net per week from her business, if not for the accident. Instead, for the past I have found likely earnings in the order of $700 net per week. However, I do accept that the claimant may well have enjoyed increased earnings in the future as the demand for her work increased and she would have been in a position to increase her charge out rates. What that figure would be is difficult to estimate.
Taking the above matters and findings into account, I make an award for future economic loss on a buffer basis in the amount of $200,000.

Fox v Wood

The insurer has calculated the tax paid on payments of statutory weekly benefits to total $1,716.00. I have not received any indication from the claimant that such amount is disputed. The list of payments provided by the insurer verify such amount. I therefore award the amount of $1,716 for Fox v Wood.

Should I award a costs penalty?

In supplementary submissions dated 29 June 2021 (drafted by counsel for the claimant, Jak Callaway) the claimant makes a claim for a costs penalty under section 6.21 of the MAI Act (incorrectly referred to as section 6.20).
Section 6.21 provides that if an insurer denies liability the Personal Injury Commission may impose a costs penalty if it is of the opinion that there was no reasonable basis for the denial of liability. Such penalty may be imposed up to 25%.
In support of such claim it is submitted that the insurer eventually located the driver at the address identified by the claimant in the claim form dated 1 February 2018. The statement was obtained on 6 May 2021. It is submitted that such statement should have been obtained at least three years earlier and thereafter breach of duty of care should have been admitted.
The insurer has provided submissions in response, after the assessment conference, dated 29 July 2021. It is submitted that the costs penalty sought should not be made. It is submitted that I should find that the insurer had a “reasonable basis for a denial of liability (given) the denial was based on provable facts and a reasonably arguable view of the law” as set out in section 6.21(2).
I have set out in detail above the timeline of events as to the insurer’s liability decisions.
As set out above, the claim was initially denied on the basis that the insurer was not able to verify the accident due to the way the insured’s details were obtained. The insurer submits that it was at a disadvantage compared to the claimant given that she and her partner were in the general area. The insurer goes on to submit that it was not unreasonable for it to seek verification of the accident. I agree. However, I do not agree with the insurer’s submission that it was not unreasonable for the insurer to have experienced its difficulties given the “lack of information in the police report and given the unsuccessful initial investigation for the insurer by a professional investigator”.
Firstly, I do not accept there was a lack of information in the police report. The police report included identifying information as to the address of the insured driver. In addition, the address where the insured driver was eventually located matches the address the claimant provided in her statutory benefits claim form of January 2018.
I agree that prudent claims management would have sought the insured driver’s version of events very soon after the claim for statutory benefits was first made in 2018, which was well before the commencement of the Covid-19 pandemic.

Furthermore, for the reasons I have set out above, I also consider it unreasonable that the insurer took no further steps to locate the insured driver after August 2020. In my view the steps initially taken by the investigator were not extensive. Whilst I accept that a “doorknock” would have been unreasonable at that time due to the pandemic, given the easing of Covid-19 restrictions shortly thereafter, the insurer was unreasonable not to have taken any further steps to obtain a statement from the insured driver before the matter was first set for assessment conference. As set out above, I made my opinion in this regard known at the first assessment conference and it is noteworthy that the insurer thereafter finally took further steps to locate the insured which were clearly successful.
The submissions of the insurer refer to difficulties in locating the insured due to the distance from Sydney. I do not follow how that is relevant. It is common place for investigators to have regional agents to conduct investigative work. It is trite to say that motor vehicle accidents occur throughout the entirety of the state, and as such the industry is very experienced in managing claims arising from all areas.
The insurer then submits that it was not unreasonable for a denial of liability to be maintained after the statement of the insured driver was obtained. The insurer then sets out the liability issues for me to resolve including an allegation that the claimant did not have “right of way”.
For the reasons set out above, I do not accept the insurer’s view as to liability. Whilst
I am persuaded that the insured would have had a reasonably arguable position to allege contributory negligence, I do not accept that the insurer had a reasonably arguable position to deny breach of duty of care as a whole.
It is noted that the letter serving the statement of the insured driver simply states that breach of duty of care was denied, and no further detail is provided as to why such decision was arrived at except to say it was on the basis of the content of the statement.
I consider it unreasonable that no further explanation was provided as to why breach of duty of care was denied. This is my opinion given the situation where initial submissions lodged by the insurer in support of its reply, maintained that if the commission was satisfied that the accident was verified then it was submitted that a finding of 25% contributory negligence was maintained. It is not explained in any detail as to what in the statement of the insured driver justified such a significant change in respect of the issue of breach of duty of care. In this regard, I note that section 6.3(3)(c) obligates the insurer to provide written reasons for all decisions that materially affects a claimant’s right to statutory benefits or damages.
Consequently, arriving at the second assessment conference the claimant and her legal representatives faced a complete denial of liability and a denial of breach of duty of care. However, at the assessment conference, counsel for the insurer did not seem to maintain such position and instead provided oral submissions that a finding of contributory negligence should be made in the order of 50%.
Accordingly, the only time the insurer did not put liability wholly in dispute was at the second assessment conference. The claimant therefore faced a complete denial of her claim from the beginning of her common law claim right until the assessment conference. The fact that liability was initially denied for verification reasons saw herself and her legal team undertake further work and obtained further statements in an attempt to provide further evidence to verify the insured was the relevant driver. Whilst that evidence was served late and triggered an adjournment of the first assessment conference, nonetheless it was further evidence that I consider reasonably obtained in a situation where the insurer made only relatively minor efforts to locate the insured, as set out above. Had the insurer instructed investigators to do a “doorknock” of the address provided by the claimant years earlier, particularly after the easing of Covid-19 restrictions, then the issue of verification could have been resolved well prior to the first assessment conference.
Whilst it is submitted that it was reasonable to deny breach of duty of care following the obtaining of the statement of the insured driver, I do not accept this to be the case. The insured himself in his statement admits that he is not sure who was at fault. More relevantly, he also states that he told the claimant that he was sorry and that he “simply didn’t see her”. Taking into account the content of the statement and my reasons on liability set out above, I do not consider the statement of the insured driver provided any reasonable departure from the liability information previously available when the insurer maintained a position in written submissions that a finding of contributory negligence of 25% ought be made. Indeed, at the assessment conference counsel for the insurer, relying on the statement of the insured, submitted a finding of contributory negligence ought be made in the order of 50%.
For the above reasons, I conclude that the insurer had no reasonable basis for a denial of liability. Whilst I am persuaded that an allegation of contributory negligence would have been reasonable on the basis of provable facts and a reasonably arguable view of the law, I do not consider a complete denial of breach of duty of care was so reasonable.
I therefore award an uplift of costs assessed of 25%.
Whilst not determinative in my decision, it is worth noting that an insurer should be mindful of the impact their decisions have upon a claimant. The claimant is significantly injured as a result of the accident. It is undeniable that for any claimant the process of making a claim and the subsequent litigation is significantly stressful. It is a number of years since the accident. The adverse impact of an unreasonable denial of liability on the mindset of a claimant cannot be underestimated, particularly in a situation where a motor vehicle accident has caused a significant shift in the claimant’s circumstances, as is the case in this claim.

Assessment of damages summary

Under Sub-section 94(1)(b) of the Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
non-economic loss  $250,000
economic losses
past loss of earnings (incl. superannuation and Fox v Wood)             $65,416
future loss of earnings (incl. superannuation)  $200,000
total damages assessed  $515,416
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for payments of weekly statutory benefits paid to date.

Costs and Disbursements

The claimant has provided a “costs calculator” of the costs claimed (not including any costs penalty). The insurer does not dispute those amounts claimed as set out in the costs calculator.
I note that the claimant’s claim includes items that exceed the regulated amounts.
I have assessed costs in accordance with the attached sheet in the amount of $38,104.95. In addition, I have allowed a costs penalty uplift of 25% which is an additional amount of $9,526.24. I therefore award costs in the total amount of $47,631.19.

Conclusion

On the issue of liability for the claim, the AAMI insured owed a duty of care to the Claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty.
The amount of damages for this claim is $515,416.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $47,631.19 inclusive of GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
·The MAI Act;
·Motor Accident Injuries ACT 2017, and
·Motor Accident Injuries Regulation 2017.

Elizabeth Medland
Member (Motor Accidents Division)
Personal Injury Commission

[2021] NSWPIC 495

25 November 2021