Romero v Cic Allianz Insurance Limited
[2024] NSWPIC 113
•11 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Romero v CIC Allianz Insurance Limited [2024] NSWPIC 113 |
| CLAIMANT: | Jessica Romero |
| INSURER: | CIC Allianz |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 11 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages assessment; where 37-year-old claimant was injured when a taxi collided with her on a pedestrian crossing; liability wholly admitted; assessment for past and future economic loss; pre-existing condition; multiple sclerosis; impact of pre-existing condition on capacity to earn; impact of injuries on capacity to earn; increase in vicissitudes; Wilson v Peisley considered; damages for accommodation and travel; sub-section 4.5 (1)(b); Held – damages for past and future economic loss assessed at $431,394 and no award for accommodation and travel expenses. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36 of the Motor Accident Injuries Act 2017 1. Under sub-ss 7.36(1) and 7.36 (3) of the MAI Act, I specify the amount of damages for this claim as $382,232. 2. The insurer is to have credit for the sum of $22,463.20 under s 3.40(1)(b) of the MAI Act for the amount of statutory benefits already paid to the claimant. 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act and the Motor Accidents Injuries Regulation 2017 is $52,523.61 inclusive of GST. |
STATEMENT OF REASONS
Issued under ss 7.36 (1) and 7.36(5) of the Motor Accidents Injuries Act 2017
INTRODUCTION
In this matter, the claimant, Jessica Romero made an application for an assessment of a claim for common law damages under s 7.36 of the Motor Accidents Injuries Act 2017 (MAI Act) in respect to the injuries she suffered in a motor accident on 6 February 2019.
On 23 February 2021, the claimant made the claim for damages with the insurer. On 25 May 2021, the insurer wholly admitted liability of the claim.
The claimant accepts that she is not entitled to make a claim for damages for non-economic loss. The claimant seeks damages for past and future economic loss, including loss of past and future superannuation, and travel.
The matter has been referred to me for determination. On 4 October 2023, I conducted an assessment conference for the assessment of damages.
AGREEMENTS REACHED AT THE ASSESSMENT CONFERENCE
The parties agreed that:
(a) the insurer is entitled to repayment under s 3.40(1)(b) of the MAI Act of an amount of $22,463.20 for weekly payments of statutory benefits paid to the claimant;
(b) the Fox v Wood component of the claim is $5,041;
(c) the rate to be applied to any award for past superannuation is 11%, and
(d) the rate to be applied to any award for future superannuation is 14.42%.
ISSUES FOR DETERMINATION
The parties agreed that the following issues call for determination:
(a) the nature and extent of the claimant’s injuries;
(b) the extent to which the claimant’s pre-existing medical condition of Multiple Sclerosis (MS) has impacted and/or will continue to impact on her capacity to earn;
(c) the extent to which the injuries sustained by the claimant in the accident has impacted and/or will continue to impact on her capacity to earn;
(d) the quantum of damages for past and future loss of earnings or earning capacity (if any), and
(e) whether the claimant is entitled to damages for travel expenses.
THE CLAIMANT’S EVIDENCE
In evidence, there were three signed statements from the claimant, dated 15 April 2021, 17 September 2021 and 20 May 2022 respectively. The claimant also gave oral evidence at the assessment conference.
The claimant’s evidence may be relevantly summarised as follows:
Personal background
The claimant was 32 years of age at the time of the accident, and she was 37 at the time of the assessment conference.
She lives alone. She separated from her ex-partner in 2016 and ultimately divorced in June 2020.
Education
In 2003, the claimant obtained her NSW High School Certificate. Since leaving high school, she completed a number of courses.
In 2004, she obtained a Certificate III in Property (Real Estate) from TAFE NSW.
In 2005, she obtained a Diploma of Property (Real Estate) from TAFE NSW.
In 2011, she obtained an Advanced Diploma of Property Services (Valuation) and a Post Graduate Diploma of Property, both from TAFE NSW.
In 2012, she obtained a Master of Property Development from the University of Technology, Sydney and she completed a Certificate of Registration for Real Estate from E-Learning Online Training.
In 2013, she obtained a Diploma of Property Real Estate from E-Learning Online Training.
In 2014, she obtained an Intermediate Microsoft Excel Course Certificate from Sydney Express Education Consultancy.
In 2015, she obtained a Sales Expert Strategies Certificate from My Real Estate Training.
In 2016, she obtained a Communication Skills - Body Language Basics Certificate from My Real Estate Training.
In 2017, she obtained a Diploma in Microsoft Excel from the Shaw Academy and an Advanced Property Asset Management (three day course) Certificate from the Property Council of Australia.
In 2018, she obtained a Project Management Course Certificate from International Association of Online Training e-Courses - Course for Success.
In 2019, she obtained a Property Management in Focus Certificate from Australian Sales-Masters Training Co Pty Ltd eLearning.
In 2020, she obtained a Class 1 Real Estate Licence, a Diploma of Leadership and Management and a First Aid Certificate.
The motor accident
The claimant said that on 6 February 2019 at about 12.30pm, she was walking across the intersection of Margaret Street and Clarence Street, Sydney with a green pedestrian light in her favour, when a taxi (the insured vehicle) struck the left side of her body.
She became airborne. When she landed, her head hit the gutter with force and her lower right leg and ankle hit the road with force.
The claimant said that in the accident, she suffered injuries to her head, her right lower leg and her right ankle. She said that she was also in shock.
She recalled that a paramedic initially attended upon her at the scene of the accident. She was then taken by ambulance to the St Vincent's Hospital.
Injuries and treatment
The claimant was admitted at the hospital to be treated. She said that she received three staples to the laceration at the back of her head. A CT scan of the brain and an X-ray of the right lower leg were done. There were no fractures and that the brain scan showed no abnormalities. She was prescribed with Keflex and was discharged home the same day.
She said soon after discharge, her right ankle was swollen and painful.
On 15 February 2019, she saw her general practitioner, Dr Johnson Hsu at the Multicare Family Medical Centre, Ashfield. Dr Hsu referred her for X-rays of the cervical spine and right ankle. She was prescribed with Tramadol and Panadeine Forte for her pain.
She said that around this time, she started having headaches and back pain. She started feeling depressed and traumatised because of her pain.
On 28 February 2019, she saw Dr Hsu. On this occasion, she was referred for physiotherapy and counselling. She eventually received treatment from a counsellor, Rebecca Jackson. She eventually received physiotherapy treatment from Rehab Co. She said she was also referred to an exercise physiologist.
The claimant said around March 2019, she started getting pain in the sole of her right foot. She thought that this was due to overcompensating because of the ankle injury. Dr Hsu referred her for an ultrasound.
She started getting persistent blurry vision. She was referred to ophthalmologist, Dr Brian Harrisberg.
On 28 March 2019, the claimant said an ultrasound of her right foot and ankle was done. She was told that there was a focal tear within the deltoid ligament of the right medial ankle and that there was presence of ankle joint fluid.
The claimant was referred by Dr Hsu for a cortisone injection to her right ankle. This was done by radiologist, Dr Vincent Lai on 1 April 2019. This did not improve her pain in the right foot. Dr Hsu advised her to start wearing a cam boot which she did.
The claimant said in April 2019, she started getting pain in her left knee. She believes that this was due to overcompensating for disability in her right ankle and foot. She continued to have severe headaches in the mornings with blurry vision and eye pain.
The claimant said that on 29 April 2019, an ultrasound to her left foot, ankle and left knee was done. The claimant was told that the imaging showed no abnormalities in her left foot and ankle, but there was some joint effusion in her left knee.
In May 2019, the claimant saw Dr Harrisberg. She was told by Dr Harrisberg that she was suffering from migraines as a result of trauma from the accident.
On 24 May 2019, the claimant saw Dr Hsu. She was certified for a trial of light duties. She was referred to neurologist, Dr Joshua Barton for investigation of her headaches. (It should be noted Dr Barton was also the claimant’s treating neurologist for her Multiple Sclerosis (MS) condition prior to the accident.)
The claimant said at this time, she continued to have pain in her right foot and her left knee. She continued to have headaches which were worse in the mornings. Her sleep was disturbed as she had regular dreams about the accident. She experienced intrusive thoughts throughout the day about the accident.
On 19 June 2019, the claimant saw Dr Hsu about her persistent migraines, insomnia and general weakness. The claimant said that she was advised to also consult Dr Barton about this problem. She was referred for further radiological investigations of her right ankle. This was done on 8 July 2019. She was told that the imaging showed scarring on the medial deltoid ligament.
The claimant said that because of increasing reliance on her crutches, she started to experience severe pain in her back. She continued to take Panadeine Forte and Targin to relieve the pain.
On 28 June 2019, the claimant saw Dr Hsu about her back pain. She was referred for a CT scan of the lumbar sacral spine. This was done on 8 July 2019. The claimant said she does not know what the results of her lumbar spine CT scan were.
The claimant said that she continued to have persistent pain in her right foot, right ankle and left knee, even when sitting down or lying flat. Her pain is not improving. She started to worry about her recovery which made her more depressed.
The claimant said that Dr Hsu prescribed Axit 15 for her low mood and inability to fall asleep. The medication helped her to sleep but the pain in her right foot and ankle persisted and did not improve. She continued to experience pain in her left knee and lower back. She believed that this was because she continued to rely on her crutches to move around.
On 31 October 2019, she saw Dr Hsu for the persistent pain in her right foot and ankle. Dr Hsu told her to use the cam boot again, which she did.
On 1 November 2019, the claimant said that an ultrasound to her right foot and ankle was done. She was told that the imaging showed Achilles tendinosis and retrocalcaneal bursitis.
On 15 November 2019, the claimant was referred by Dr Hsu to orthopaedic surgeon, Dr Todd Gothelf.
On 5 December 2019, the claimant saw Dr Hsu because she had started getting a generalised ache in her right elbow. She believed this was due to the increased use of her crutches. She said that Dr Hsu advised her to also consult Dr Gothelf about this problem.
The claimant saw Dr Gothelf in December 2019. Dr Gothelf told her there was weakness in her right ankle and weakness with dorsiflexion on the left.
The claimant said that on 9 December 2019, an X-ray of her right ankle was done by radiologist, Dr Catherine Hayter. She was told that the imaging showed a partial tear within the deltoid ligament. She was then referred by Dr Gothelf for a further MRI of her right ankle.
The claimant said at the consultation with Dr Gothelf, the doctor asked her questions that focused on her MS medical condition and not the injuries she sustained in the accident. She said that Dr Gothelf advised her that surgery was not an option.
The claimant said that she stopped seeing Dr Gothelf because she believed that Dr Gothelf had put her in the 'too hard' basket due to her MS in conjunction with the injuries she sustained in the accident. The claimant said that she was worried that she would not receive the appropriate treatment for her right ankle.
The claimant said that it was her intention to seek a second opinion from another orthopaedic surgeon. She has not yet done so because she is frustrated with her past experience of medical practitioners giving her the impression that her condition is “too hard” and attributing her current condition to MS.
The claimant said that on 15 December 2019, an MRI of her right ankle was done by Dr Hayter.
The claimant said that she has undergone physiotherapy treatment but the pain in her right foot, left knee, lower back and elbow have not improved. Her sleep continues to be disturbed due to the pain.
Employment prior to and at the time of the accident
Prior to the accident, from November 2003 to January 2005, the claimant worked as a receptionist at the Multicare Family Medical Centre, Ashfield.
From January 2005 to March 2006, she worked as a property officer and office all rounder at Proxies Real Estate and Finance Zone, Bankstown.
From March 2006 to February 2007, she worked as a receptionist and administrator for Constantine Kambourakis and Co, Public Accounts, Alan Rigas Solicitors and Alan Rigas & Associates.
From April 2007 to September 2010, she worked as a legal assistant at Macquarie Lawyers, Burwood.
From about May 2012 to about July 2015, she worked as a tenant advisor and senior lease administrator with LPC Cresa (formerly LPC Australia).
From about July 2015 to the date of the accident, the claimant was working with Cl Australia (formerly Chesterton International Australia) as a regional property manager. She was responsible for managing the Sydney Trains property portfolio and her duties included the inspection of properties on a daily basis throughout the Sydney CBD.
At the time of the accident, the claimant said she was earning $82,500 gross per annum which equates to about $1,320 net per week.
Impact of MS medical condition on employment prior to the accident
The claimant said that prior to the accident and because of her MS condition, she occasionally used Canadian crutches when she needed to. She said that she was able to walk and run normally without using them for travelling and attending to her duties of inspecting properties on a daily basis.
The claimant said that for a period of about five years prior to the accident, the physical deficits related to her MS condition were stable.
The claimant said that before the accident, she was able move around in the office unassisted. She took both crutches to work because Cl Australia instructed her to do so. She said that she would use two crutches at work if she had a full day of “opens” to attend to help with the fatigue. She would use them for extra support if she was having a really bad day or if she had a few bad nights of sleep.
In oral evidence, in response to questioning counsel for the insurer, the claimant also accepted that she used two crutches when her MS symptoms were most severe. She said that she would use them at work for stability if she had a flare-up or when her nerve pain was a little bit worse.
Because she was required to take her crutches to work by her employer, the claimant said she used them when travelling to and from work as this was easier than carrying them under her arms.
In oral evidence, it was put to the claimant by counsel for the insurer that she was using her two crutches on the day of the accident because her MS symptoms were particularly severe. The claimant did not agree. She said (when travelling to and from work), she would on occasions need both crutches and she would have them “just in case” but she was not reliant upon them all the time to get from “A, B, C, D”.
Employment after the accident
After the accident in March 2019, the claimant returned to work at Cl Australia. She initially worked from home on lighter duties. She was paid her normal salary for the months of February and March 2019. From April to June 2019, she was unable to work and was not paid by Cl Australia.
The claimant received weekly payments of statutory benefits from the insurer from about 29 March 2019. She returned to working from home again in July 2019.
The claimant said that since the accident, she has become completely reliant on her crutches for walking and moving around at work and within her own home.
In her first written statement, the claimant said on 16 July 2019, she was informed by Cl Australia that they had lost their contract with RailCorp. She was given the option of taking a redundancy or accepting an alternative role. The claimant said that she decided to accept a redundancy because she believed that with her education, training and experience, she could earn more by working for a different company.
The claimant said that after receiving this advice, she began looking for other employment. In oral evidence, in response to questioning from counsel for the insurer, the claimant admitted that she started looking for other work before she received the letter of 16 July 2019 because she had already been told before that date that the company had lost the RailCorp contract.
The claimant said that she was able to find alternative employment with Fullerton Health Australia (Fullerton) as a national sublease property portfolio manager.
The claimant came to an arrangement with CI Australia allowing her to cease work on 31 August 2019. She started work with Fullerton on 1 September 2019.
In oral evidence, in response to questioning from counsel for the insurer, the claimant admitted that she did not advise Fullerton of her MS condition and psychological problems because she needed to work.
At Fullerton, the claimant’s starting salary was $95,000 gross per annum, which equates to about $1,328 net per week.
The claimant believed that, at Fullerton, she did not have difficulty performing her duties. These involved recording commercial leases, auditing and improving the management processes of the leases. At her work however, she had to use two crutches to move around the office every day due to her increased physical impairment since the accident.
The claimant said that prior to the accident, and notwithstanding her MS condition, she could easily walk around an office unaided. Sometimes, she would occasionally use one crutch. Since the accident, she has not been able to walk around the office without the use of two crutches because she has much more instability in her right leg. She says that after the accident, both legs have been more unstable.
The claimant said that because she was on crutches every day in the office, she noticed that people, including her co-workers, were doing "double takes" or staring at her. She said these experiences happened on a regular basis.
The claimant said at some point after she started at Fullerton, she attended a human resources meeting. She was using two crutches at the meeting. She said that, shortly after the meeting, she was informed by the human resources officer (the interviewer) that she would need to undergo a medical assessment.
The claimant said that the need to undergo a medical assessment had not been raised with her when she was interviewed for the position nor was it made a condition of the offer of employment.
At the end of her probationary period, she attended a meeting with a manager, Mr Martorana and the human resources officer. At the meeting she was told that the company would not be keeping her on. The claimant said that she was surprised at the decision because no issues had been raised about her work performance during the probationary period.
The claimant said that when she prompted Mr Martorana to further explain the reason behind her dismissal, Mr Martorana said words to the following effect:
“…they just don't want the face of the company to be handicapped."
The claimant said that, during the interview, she got the impression that she was being let go because of the use of crutches rather than her performance.
The claimant ceased work at Fullerton on 25 February 2020. She became more depressed. In March 2020, she was referred to psychologist, Simon Port, for treatment. The claimant said that the insurer paid for her therapy sessions with Mr Port.
The claimant said for about four months after she ceased work with Fullerton, she was unable to secure suitable employment.
On 7 July 2020, the claimant obtained employment with Metal Manufactures Pty Ltd, (Metal Manufactures) as head of property in lease administration. Her salary was $110,000 gross per annum. This equates to about $1,515.92 net per week.
In December 2020, she was advised by Chief Financial Officer, Jason Read, that she had not passed her probation period, The claimant was told that the executives of the company did not believe she was working hard enough.
The claimant said that the company offered her to allow her to continue working until 31 March 2021 and that she would be paid $15,000 as a “profit share” payment. This arrangement would allow the company time to find a replacement. The claimant said that she accepted the proposal because she needed the money.
The claimant ceased work with Metal Manufacturers on 31 March 2021.
The claimant believed that she did not pass the probation test because of her injuries and disabilities, and because of her dependence on her crutches to move around in front of clients rather than due to her performance.
The claimant said that during the course of her employment the Chief Financial Officer, Jason Read, frequently made comments about her reliance on crutches. On different occasions, Mr Read said words to her to the following effect:
- "Run, quick”;
- "Quick, run, we're going to be late for our meeting";
- "I hate when you're walking in front of me, I get stuck in the slow lane";
- "If you're not feeling steady on your legs, don't bother coming in", and
- “You're a liability to the company”.
The claimant said she was frustrated because she felt that the same thing that had happened at Fullerton was happening again.
When the claimant prompted Mr Read to further explain the reason behind the company’s decision to terminate her employment, the claimant said that he responded with words to the following effect:
"The executives do not like the idea that you are hobbling around the office and they think that you are a liability."
The claimant said her confidence was severely impacted by losing her job with Metal Manufacturers. She said that she felt that she would not be able to progress her career in the property industry. As a result, she accepted an entry level position with the St. Vincent de Paul Society NSW (St. Vincent) as a property administrator. She started this role on 2 August 2021.
In oral evidence, the claimant said by that stage she felt the only type of role that she would get hired for. She said it was not about her capability but about the perception of what the corporate world thinks she is capable of.
The claimant said that she experienced significant discrimination at St. Vincent from two people she was working with. She resigned from her position on 18 January 2023 and remained out of work until 3 July 2023.
On 3 July 2023, the claimant obtained employment with Strathfield Council as a strategic property officer, earning approximately $125,000 gross per annum. At the time of the assessment conference, the claimant was so employed.
The claimant said this position is more commensurate with her level of training and education and with what she was earning at Cl Australia at the time of the accident. Her duties include attendance at various properties owned by the council and liaising with the tenants of the leased premises on a regular basis. At times, she is required to walk long distances between properties, and she needs to use her crutches.
The claimant is concerned that she may not pass probation again because of a perception of being less capable of doing her job as a result of her increased disability following the accident. The claimant said that one of her junior staff has already made frequent complaints that she had to do more of the "heavy lifting" than the claimant on a day-to-day basis.
Ongoing disabilities
The claimant said that she is experiencing ongoing residual pain in her right ankle and right foot. That causes her sleep to be disturbed. The pain is associated with weakness and the ankle gives way. As a result, she frequently loses her balance.
The claimant said that since the accident she has experienced more falls due to her decreased stability than before the accident that were due only to her MS condition. She is concerned about the significant consequences of these falls and disabilities on her future capacity to perform her job.
In oral evidence, the claimant clarified that prior to the accident, she sometimes tripped over rather than fell and that these trips were not as significant as the falls she had experienced after the accident.
The claimant said that she has developed lower back pain due to her heavy reliance on using crutches. She has pain in the mid-scapular region bilaterally. She has difficulty walking a significant distance without crutches. She has difficulty standing for prolonged periods. She has difficulty performing activities of personal care.
The claimant said that she now suffers from migraines and headaches. Occasionally, she has dizziness when lying on her back. She has intermittent episodes of blurred vision.
The claimant said that the accident has had an adverse effect on her social life. She gets anxious when socialising. She gets anxious when crossing the street. She has regular nightmares about the accident. She has low self-esteem. Her mood is affected and she gets depressed. There is suicidal ideation. She has put on weight.
Other medical conditions
In April 2015, the claimant was treated at the Canterbury Hospital for renal colic.
The claimant said that in 2016, she was diagnosed with post-traumatic stress disorder after being subjected to domestic violence by her ex-partner. She attended a few treatment sessions with psychologist, Dr Alexandria, through a workplace scheme, Access Employment Assistance Program. Thereafter, she was placed on a Mental Health Care Plan and continued to be treated by Dr Alexandria for about three months until early 2017.
The claimant said that prior to the accident, she has not sustained any injuries or suffered any other medical conditions (apart from MS).
OTHER WITNESSES
I considered written statements from the claimant’s sisters Patricia Habib and Rashell Habib dated 22 August 2023 respectively.
I also considered an email from Gerard Grills dated 11 August 2023. Mr Grills worked with the claimant at CI Australia.
The witnesses were available for questioning at the assessment conference.
I indicated to both counsel that in my view, there was nothing more that these witnesses could add to the evidence already given by the claimant and that their evidence does not add anything to the material already before me. On that basis, both counsel indicated that they did not propose to question the witnesses.
THE MEDICAL EVIDENCE
The medical evidence regarding the claimant’s injuries, disabilities and impairments may be conveniently summarised as follows.
St Vincent’s Hospital
According to the clinical records of St Vincent’s Hospital, the claimant was admitted for treatment on 6 February 2019. It was recorded that the claimant was crossing the road with crutches when she was hit by a taxi at 30 kmph. She struck her head against the kerb. She had abrasions to her left leg and pain in the right leg.[1]
[1] Page 249 of the claimant’s bundle.
The progress notes recorded that there was a haematoma to the right parietal region and the claimant was complaining of pain in the right distal tibia, nausea and headache.[2]
[2] Page 261 of the claimant’s bundle.
An X-ray of the right lower leg reported traumatic injury however no visible fracture was detected. A CT of the brain showed there was a large right parietal laceration with no underlying intracranial haemorrhage.[3]
[3] Page 269 of the claimant’s bundle.
The scalp laceration to the right parietal region was cleaned, irrigated and closed with three staples.[4]
[4] Page 273 of the claimant’s bundle.
The claimant was discharged the same day.[5]
[5] Page 273 of the claimant’s bundle.
Clinical records of Multicare Medical Centre
A review of these clinical records showed that the consultations recorded by the claimant’s general practitioner, Dr Johnson Hsu and the treatment given to the claimant, is consistent with the claimant’s evidence.
Dr Brian Harrisberg
In a report to a referral optometrist and Dr Hsu dated 28 May 2019, Dr Harrisberg confirmed that he has seen the claimant who he has met before for follow ups relating to her MS eye related conditions.[6]
[6] Page 1028 of the claimant’s bundle.
Dr Harrisberg noted that in the motor accident, the claimant sustained a head and scalp laceration and injuries to her right ankle.[7]
[7] Page 1028 of the claimant’s bundle.
Dr Harrisberg found that the claimant had developed intense headaches initially starting at the vertex but also from the right side and spreading to both temples. Associated with these headaches, there have been light disturbances as transient visual auras, suggestive that this was more migraine related.[8]
[8] Page 1028 of the claimant’s bundle.
Dr Harrisberg indicated that he was able to rule out any major eye deficits (associated with the MS condition) and his impression was that the claimant was suffering from post-trauma migraine-type illness.[9]
[9] Page 1,028 of the claimant’s bundle.
Dr Todd Gothelf
In December 2019, the claimant saw orthopaedic surgeon, Dr Todd Gothelf for further treatment of her right ankle injury upon referral by Dr Hsu.
In his report dated 9 December 2019. Dr Gothelf noted that the claimant was diagnosed with MS in 2001 and that she used crutches sometimes prior to the accident. Dr Gothelf noted that the claimant’s left side is more affected by MS than the right.[10]
[10] Page 812 of the claimant’s bundle.
On examination, Dr Gothelf found that walking gait was awkward requiring the use of crutches. There was bilateral sustained clonus. There was weakness on the right ankle and weakness with dorsiflexion on the left extensor hallucis longus (EHL). There was no right ankle instability. There was tenderness over the dorsal midfoot and medial ankle gutter. The deltoid ligament was less tender.[11]
[11] Page 812 of the claimant’s bundle.
Dr Gothelf’s impression was that the claimant had sustained a right ankle soft tissue injury with ongoing pain which has not improved. He referred the claimant for an MRI of the right ankle.[12]
[12] Page 813 of the claimant’s bundle.
In a further report to Dr Hsu dated 23 December 2019, Dr Gothelf explained that the claimant has expressed to his office that she would not be returning for any further visits.[13]
[13] Page 811 of the claimant’s bundle.
Dr Gothelf’s impression of the MRI imaging was that the claimant’s pain over the dorsal midfoot was consistent with a transtarsal injury as described on the MRI. He believed that if there was persistent pain in the region of the transtarsal joints, one may consider an ultrasound guided cortisone injection as further treatment.[14]
[14] Page 811 of the claimant’s bundle.
Dr Chris Harrington
On 9 March 2020, the claimant was assessed by orthopaedic surgeon, Dr Chris Harrington at the request of the insurer.
In his report dated 17 March 2020, Dr Harrington noted that the claimant was diagnosed with MS “22 years ago”,[15] mainly affecting her left side. Dr Harrington noted that the claimant often uses her crutches because she tends to roll her ankle and that this may happen a couple of times a year.[16]
[15] The general evidence suggests that the diagnosis was made about 19 years before Dr Harrington’s examination.
[16] Page 24 of the insurer’s bundle.
Dr Harrington noted that in the accident, the claimant was hit and “catapulted about 2.5m through the air”. Her right foot was swollen the next day. She was placed in a moon boot and then commenced physiotherapy. The claimant described quite severe pain for four months after the injury.[17]
[17] Page 24 of the insurer’s bundle.
The claimant reported to Dr Harrington that her right ankle has not changed much.[18]
[18] Page 24 of the insurer’s bundle
Dr Harrington noted that the claimant reported a strange pain on the sinus tarsi with radiation down the medial side of her right ankle. She described a deep pain. The pain is increased with prolonged standing or walking. She cannot wear flat shoes and she avoids stairs. The pain keeps her awake at night.[19]
[19] Page 24 of the insurer’s bundle.
The claimant reported to Dr Harrington that she did not have any trouble with her neck but she had some discomfort in her shoulders and thoracic spine when she is using her crutches for a long time.[20]
[20] Page 25 of the insurer’s bundle
On examination, Dr Harrington found the claimant “almost has a diplegic gait, swinging her right leg through by abducting at the hip so that she does not get her toes caught along the ground”.[21]
[21] Page 25 of the insurer’s bundle
Dr Harrington found that the claimant had equinus in the right ankle (that is reduced dorsiflexion). Dr Harrington believed this was due to a tight tendo-achilles.[22]
[22] Page 25 of the insurer’s bundle.
Dr Harrington was of the opinion that the diagnosis is neurological. Dr Harrington noted that the claimant was referred to an orthopaedic foot specialist who apparently said the symptoms were attributed to her MS. Dr Harrington noted that the claimant “did not like the diagnosis, but I believe that is what it is”.[23]
[23] Page 25 of the insurer’s bundle.
Dr Harrington believed there was no radiological evidence to support a musculoskeletal injury. There was not a lot to find in the lower limbs clinically except these objective neurological signs. However, Dr Harrison expressed the following opinion:
“We cannot rule out a soft tissue injury to her right foot as a result of the accident which could be masked by her MS. She has an equinus deformity of her right foot, which she previously relied on because of her MS-related left leg problems. She is now off-balance and does not really have a ‘good leg’.”[24]
[24] Page 25 of the insurer’s bundle.
In Dr Harrington’s opinion, the claimant’s symptomatology is better explained by MS, which is a pre-existing condition. It could be argued that the lack of dorsiflexion has occurred following immobilisation of her foot after the injury, but when combined with a neurological condition (albeit subtle), it can be easy to develop this type of equinus deformity. It probably does not explain all her symptoms, but this is the only thing he can associate from the accident.[25]
[25] Page 25 of the insurer’s bundle.
Dr Drew Dixon
On 25 May 2021, the claimant was assessed by orthopaedic surgeon, Dr Drew Dixon at the request of her solicitors.
In his report dated 26 May 2021, Dr Dixon also noted the claimant’s pre-existing MS condition diagnosed in March 2001. He noted that this condition had caused pre-injury issues with the lower limbs.
The claimant told Dr Dixon that prior to the accident, she was able to walk with or without crutches including for the purposes of attending properties (in her employment with CI Australia) on a daily basis. Since the accident, she has completely relied on her crutches for mobility. At her work, she has been unable to walk long distances because of the pain in her right lower leg, ankle and heel cord.[26]
[26] Page 210 of the claimant’s bundle.
Dr Dixon noted that her main symptoms were the pain and stiffness in the right ankle, and pain at the tendo achilles insertion into her heel with a limp. She has difficulty walking without crutches. Her use of crutches was constant whenever she is up and about. She is unable to leave home without them and has difficulty mobilising around her apartment.
Dr Dixon noted that she has developed a significant right foot drop. The claimant told Dr Dixon that prior to the accident she used to do recreational walking, jog, and run. After the accident, she has been unable to do these activities. [27]
[27] Page 211 of the claimant’s bundle.
The claimant reported to Dr Dixon that she had persisting migraine headaches in the occipital area.
On examination, Dr Dixon found that the claimant had clonus on the left but much more sustained clonus on the right. She had stiffness of the lower back with flexion decreased to one third with pain and spasm on back extension which was decreased by one half with lateral flexion to the left decreased by one quarter and to the right by one third with pain in the lumbosacral area.[28]
[28] Page 211 of the claimant’s bundle.
The claimant told Dr Dixon that she had pain since having to use crutches full time. Dr Dixon noted that she had increased abnormality of gait due to her right ankle injury.
Dr Dixon was of the opinion that a result of the accident, the claimant had sustained:
(a) post traumatic Achilles tendonitis and os calcis bursitis, with post traumatic stiffness of the right ankle and subtalar joint and partial tear of the deltoid ligament at the ankle;
(b) occipital scalp laceration with persisting occipital migraine like headaches;
(c) gait derangement where the claimant now has to use crutches all the time and before the accident, it was intermittent for her MS, and
(d) back pain in the lumbar region with stiffness due to a limp due to alteration of gait, with interscapular thoracic back pain with stiffness with dysmetria on trunk rotation due to using crutches all the time.[29]
[29] Page 213 of the claimant’s bundle.
Dr Dixon assessed the claimant’s orthopaedic injuries sustained in the accident as giving rise to whole person impairment of 25% and this includes a 50% reduction for her pre-existing MS condition.[30]
[30] Page 215 of the claimant’s bundle.
Dr Dixon was of the opinion that on the balance of probabilities, the claimant has limitations for standing, walking and lifting at work as a result of the orthopaedic injuries sustained in the accident. Prior to the accident, she was able to hold a job and do site inspections. Dr Dixon believed that the accident has impacted on the claimant’s ability to return to the workforce, particularly as she has increasing pain and stiffness and deformity of her right leg with gait derangement, requiring two crutches consistently.[31]
[31] Page 214 of the claimant’s bundle.
Dr Dixon was of the opinion that the claimant’s occipital migraine headaches would impact on her ability to concentrate at work.[32]
[32] Page 214 of the claimant’s bundle.
Dr John Sheehy, neurosurgeon
On 9 July 2021, the claimant was assessed by neurosurgeon, Dr John Sheehy at the request of her solicitors. Dr Sheehy provided a report on 14 October 2021.
Dr Sheehy noted that in the accident the taxi collided forcefully with the right side of the claimant’s body, and she became airborne. The claimant hit the gutter forcefully with her head. The claimant was stunned but had a clear memory of the accident.[33]
[33] Page 218 of the claimant’s bundle.
(It is to be noted that the claimant said that she was hit on the left side and fell on her right side of her body.)
Dr Sheehy also noted the claimant’s pre-existing MS condition diagnosed in March 2001. Dr Sheehy further noted that the claimant had been seen on 29 July 2020 by her MS treating neurologist who confirmed that her MS condition was stable for five years before the accident.[34]
[34] Page 218 of the claimant’s bundle.
Dr Sheehy noted that in the accident, the claimant sustained a head injury with a laceration of the occipital area, an injury to the right lower leg and an injury to the right ankle.[35]
[35] Page 218 of the claimant’s bundle.
Dr Sheehy noted that the claimant complained of ongoing stiffness in the right ankle, and pain in the region of the tendo achilles insertion and that she had difficulty walking without crutches. The right foot and ankle pain disturbs her sleep.[36]
[36] Page 218 of the claimant’s bundle.
On examination, Dr Sheehy found that the claimant walked with crutches with a wide-based gait. Tone was increased bilaterally in the lower limbs as were reflexes. There was restriction of movement in the lower back on flexion.[37]
Dr Sheehy found that the ultrasound of her right ankle showed a partial tear within the deltoid ligament and the X-ray of the right ankle of 9 December 2019 revealed enthesopathic change at the Achilles insertion.[38]
Dr Sheehy noted that the MRI of the right ankle of 15 December 2019 showed thickening of the talonavicular ligament and bifurcate ligament and mild bone marrow oedema at the anterior process of the calcaneus without fracture.[39]
161.Dr Sheehy referred to the report of the claimant’s treating MS neurologist, Dr Joshua Barton of 10 April 2018, noting that the claimant had not had any further clinical episodes or flares of her MS condition and that she was no longer using Canadian crutches after her first cycle of chemotherapy.[40]
162.Dr Sheehy was of the opinion that as a result of the accident, the claimant had sustained an injury to the right ankle, and she had developed an equinus deformity to the right foot.[41]
163.Dr Sheehy was of the opinion that the claimant had developed migraine headaches since the accident.[42]
[37] Page 219 of the claimant’s bundle.
[38] Page 219 of the claimant’s bundle.
[39] Page 219 of the claimant’s bundle.
[40] Page 219 of the claimant’s bundle.
[41] Page 219 of the claimant’s bundle.
[42] Page 219 of the claimant’s bundle.
Dr Sheehy was of the opinion that the claimant’s present condition is a combination of the injuries she sustained in the accident and pre-existing MS. The predominant responsibility rests with the accident, but there is some responsibility, approximately a third, relating to the pre-existing MS.[43]
[43] Page 220 of the claimant’s bundle.
Dr Sheehy assessed the claimant’s whole person impairment at 27% due to the injuries she sustained in the motor accident, after having deducted 13% whole person impairment (a third) due to the pre-existing MS.[44]
Dr Farhan Shahzad
[44] Page 221 of the claimant’s bundle.
On 8 November 2021, the claimant was assessed by occupational physician, Dr Shahzad at the request of her solicitors. Due to the Covid-19 pandemic, the assessment was conducted via Telehealth with the claimant participating from her home. Dr Shahzad provided a report dated 25 November 2021 which is in evidence.
Dr Shahzad noted that the claimant’s right ankle could not be examined due to the limitations of the method of consultation. Dr Shahzad recommended a face-to-face assessment for the assessment of range of movement and whole person impairment.[45]
[45] Page 230 of the claimant’s bundle.
It does not appear that the recommended assessment took place.
Consequently, and given the issues concerning the claimant’s pre-accident and post-accident mobility, I did not give any weight to Dr Shahzad’s conclusions and opinion.
Dr Grant Walker
On 22 November 2022, the claimant was assessed by neurologist, Dr Grant Walker at the request of the insurer. Dr Walker provided a report dated 29 November 2022.
Dr Walker also noted that the claimant had her first episode of MS in 2001 when she was 15 years of age. This consisted of a left sided optic neuritis and numbness of her left hand.[46]
[46] Page 44 of the insurer’s bundle.
Dr Walker noted that the claimant has had different forms of injectable and oral treatments because MS treatments have evolved considerably over the last 20 years.[47]
[47] Page 44 of the insurer’s bundle.
Dr Walker noted that the claimant’s most recent significant treatment was in mid-2016 and June 2017 when she had Alemtuzumab (Lemtrada) with apparently good stabilising effect.[48]
[48] Page 44 of the insurer’s bundle.
Dr Walker was of the opinion that the claimant’s gait disorder has nothing to do with the motor accident and that it relates to her MS. He also referred to treating neurologist, Dr Joshua Barton’s report of 10 April 2018, and noted Dr Barton’s comments that the claimant had been walking with Canadian crutches for years and she had an unsteady gait.[49]
[49] Page 45 of the insurer’s bundle.
Dr Walker was of the opinion that the claimant’s right foot pain and possibly the spinal pain would appear to relate to the accident notwithstanding that there is a history of pre-accident bilateral sciatica.
Dr Peter Whetton
The claimant was assessed by psychiatrist, Dr Peter Whetton on 16 January 2023 at the request of the insurer. He provided a report dated 17 January 2023.
Dr Whetton also noted the diagnosis of MS in 2001. Dr Whetton (having reviewed the clinical records of the Multiple Sclerosis Clinic) noted that the MS had a relapsing and remitting course. The claimant’s symptoms involved weakness in the left leg and some sensory changes in the left hand and feet.[50]
[50] Page 115 of the insurer’s bundle.
Dr Whetton noted that the claimant underwent significant treatment and the MS had gone into remission.[51]
[51] Page 115 of the insurer’s bundle.
The claimant reported to Dr Whetton that she was fired from her job with Metal Manufacturers because she considered the executives did not like the fact that she was hobbling around in the office because of her mobility problems. Her mental state was impacted with the cessation of this job.[52]
[52] Page 115 of the insurer’s bundle.
The claimant reported to Dr Whetton that during her period of employment with St Vincent, her mood was still depressed and she was frustrated by her lack of mobility.[53]
[53] Page 115 of the insurer’s bundle.
The claimant reported to Dr Whetton that since November 2022, there has been increasing problems with her mobility to the extent that she has been given a walker which she uses from time to time as well as her crutches.[54]
[54] Page 116 of the insurer’s bundle.
The claimant reported that she is not seeing her friends as her mobility is a significant problem. She could no longer undertake her previous interests of hiking, jogging and walking.[55]
[55] Page 118 of the insurer’s bundle.
Dr Whetton noted that the claimant’s current complaints were chronic pain and mobility issues which lead to restrictions in her ability to carry out a “previously enjoyable functioning in her life”. Dr Whetton believed that the claimant’s complaints are continuous from the time of the accident and are consistent with the injury and its aftermath, particularly the chronic pain and physical disablement.[56]
[56] Page 120 of the insurer’s bundle.
Dr Whetton concluded the claimant warranted a diagnosis of Chronic Adjustment Disorder with Depression.[57]
[57] Page 120 of the insurer’s bundle.
In terms of her employment capacity, Dr Whetton noted that it is reported that the claimant’s fitness for employment was impacted by the accident, the pain and limitations which led to problems in the workplace.[58]
[58] Page of 121 of the insurer’s bundle.
Dr Whetton believed that the claimant would be seen as capable of her previous high level of employment achievement, but she would need to have an environment tolerant of her disabilities.[59]
[59] Page 121 of the insurer’s bundle.
Medical Assessor Ian Cameron
On 7 March 2023, the claimant was assessed by Medical Assessor Ian Cameron of the Personal Injury Commission (Commission) for the purposes of a determination of the claimant’s degree of permanent impairment arising from her physical injuries.
The Medical Assessor also noted that the claimant’s pre-existing MS condition was diagnosed in 2001.[60]
[60] Page 7 of the claimant’s supplementary bundle.
The claimant reported to Medical Assessor Cameron that her mobility had deteriorated since the accident and that she can no longer jog or walk for longer distances. She has to use two elbow crutches at all times. She has migraines, lower back pain, upper back pain and right shoulder pain associated with the use of her crutches.[61]
[61] Page 7 of the claimant’s supplementary bundle.
The Medical Assessor found that the motor accident caused a soft tissue injury to the head with a laceration and soft tissue injuries to the right ankle. He was of the opinion that the MS condition is the reason for the persistent neurological deficit in the right ankle injury and the gait abnormality.
The Medical Assessor accepted that the accident caused some post-traumatic stiffness at the right ankle. He found that the right ankle injury gave rise to a whole person impairment of 3%. The Medical Assessor found the motor accident also caused soft tissue injuries to the lumbar spine, thoracic spine and the right shoulder but these injuries did not give rise to any assessable whole person impairment.
Medical Assessor Christopher Canaris
On 17 March 2023, the claimant was assessed by Medical Assessor Christopher Canaris of the Commission for the purposes of determination of the claimant’s permanent impairment arising from her for psychiatric injury.
On 20 March 2023, Medical Assessor Canaris issued a certificate to the effect that the claimant was suffering from a persistent depressive disorder with anxious distress caused by the accident and that the injury gave rise to a whole person impairment of 7%.[62]
[62] Page 15 of the claimant’s supplementary bundle.
Multiple Sclerosis Clinic (formerly the Brain & Mind Research Institute)
The claimant was treated by various neurologists at the Multiple Sclerosis Clinic, Camperdown (MS Clinic) for her MS condition.
Upon review of the clinical notes of the MS Clinic, it is apparent that since being diagnosed with her MS condition in March 2001, the claimant has at least up to August 2018, experienced various levels of physical disability arising from the condition.
In a report dated 30 January 2012, the claimant’s treating neurologist, Professor John Pollard noted that the claimant has had many attacks of neurologic disability consistent with the condition. After reviewing the claimant that day, he concluded:
“[The claimant] has not been significantly neurologically impaired. She has no weakness, her coordination is normal and I have always considered her fit to drive.”[63]
[63] Page 557 of the claimant’s bundle.
In July 2014, the claimant was reviewed by treating neurologist, Dr Elizabeth Shiner following the trial of a new medication, baclofen.
In her report dated 30 July 2014, Dr Shiner noted that the claimant found the new medication to be beneficial in that her lower limb pain had decreased. Dr Shiner noted that the claimant continued to mobilise independently although she has had occasional falls due to tripping over her feet when not lifting them high enough when distracted or tired.[64]
[64] Page 580 of the claimant’s bundle.
On examination, Dr Shiner noted the claimant had spasticity bilaterally but more on the left. There was increased tone in the lower limb bilaterally with ankle clonus.[65]
[65] Page 580 of the claimant’s bundle.
The claimant was reviewed by neurologist, Dr Katherine Shane Spira on 24 February 2016 after having had two episodes of flares since her last visit. On examination, Dr Spira noted that the lower limbs were weaker, and that the claimant’s gait was deteriorating. The claimant was urged to attend again for the commencement of new therapy.[66]
[66] Page 599 of the claimant’s bundle.
The claimant completed the first round of new medication treatment with alemtuzumab (Lemtrada) in May 2016. In July 2016, she was reviewed by neurologist, Dr Emma Devenney as a follow up. The claimant reported that her mobility had improved with the ability to walk 400 metres without crutches whereas this was less than 100 metres prior to the Lemtrada treatment.[67]
[67] Page 595 of the claimant’s bundle.
In August 2017, the claimant was reviewed at the MS Clinic by neurologist, Dr Justin Garber after completion of the second round of Lemtrada treatment. On this occasion, the claimant reported that she was walking around 500 metres with her crutches and around 100 metres without crutches.[68]
[68] Page 591 of the claimant’s bundle.
In April 2018, the claimant was reviewed by neurologist, Dr Joshua Barton. In his report dated 10 April 2018, Dr Barton noted that the claimant has not had any further clinical episodes or flares, but she felt that her mobility had declined somewhat. Dr Barton noted however, that after using Canadian crutches for years, the claimant had a four to five week period of not using them after the first Lemtrada cycle. He noted that the claimant’s mobility was limited although she is planning on walking a 4km MS walk coming up soon.[69]
[69] Page 589 of the claimant’s bundle.
On examination, Dr Barton found that the claimant had normal upper limb strength with brisk reflexes bilaterally. There was circumduction of the left leg walking with bilateral clonus and increased leg tone. Sensation in the lower limb was intact. Dr Barton noted that the claimant was able to walk without her Canadian crutches and he “did run up and down the corridor with her although the left leg started to drag”.[70]
[70] Page 589 of the claimant’s bundle.
The claimant was reviewed by Dr Barton in July 2018. In his report dated 11 July 2018, Dr Barton noted that the claimant entered the clinic without crutches. The claimant reported that she had become somewhat reliant on them and was trying to use them less.[71]
[71] Page 587 of the claimant’s bundle.
On 21 August 2018, Dr Barton issued a medical certificate stating that the claimant was having significant fatigue and cognitive clouding which was limiting her ability to work. Dr Barton indicated that there has been a gradual worsening of her clinical condition over the past decade and although it was not possible to predict the degree of decline, it is likely that the claimant will develop more disability over the next 5-10 years.[72]
[72] Page 553 of the claimant’s bundle.
The claimant was reviewed by Dr Barton shortly after the accident in March 2019. In his report of 25 March 2019 to Dr Hsu, Dr Barton noted that the claimant felt that she had a flare of her MS symptoms from the accident. The claimant reported the injuries to the right ankle and her head in the accident, with subsequent right lower leg pain, visual blurring, headache, pain in the right lower leg and ankle and bilateral mid scapular to neck pain, worse with physical activity. The claimant reported for the week after the accident, she had no pain in the left leg (which was the first time for six years). Dr Barton put this down to distraction with pain elsewhere through the soft tissue injury. The claimant reported that her mobility was limited. She has had sudden falls (two to three daily in the week before), where she would fall straight down to her buttocks.[73]
[73] Page 137 of the insurer’s bundle.
Dr Barton was of the opinion that the claimant’s recent symptoms did not represent an episode due to her MS condition but they were rather exacerbations caused by the traumatic incidents (the accident) in the setting of recent social stresses.[74]
[74] Page 138 of the insurer’s bundle.
In a report dated 29 July 2020, Dr Garber stated that the claimant’s physical deficits arising from her MS condition have been stable with no evidence of disease progression in the last five years since having the Lemtrada therapy.[75]
SUBMISSIONS
[75] Page 283 of the claimant’s bundle.
Claimant’s submissions
The claimant’s case is that there is no dispute that she was diagnosed with MS in March 2001 which has impacted on her leg tone, has caused mild weakness in her left leg and left hip flexor and pain in the left leg. The right leg was relatively stable, it was her “good leg”. It provided stability.
At the time of the accident, the claimant accepts that she was intermittently reliant on a Canadian crutch. She occasionally used two crutches and that was the exception rather than the rule. The claimant says that prior to the accident, she was able to move with relative freedom.
The primary issue is the extent to which the accident has affected the claimant’s earning capacity.
First, the claimant says that as a matter of legal principle (which does not require elaboration) the insurer must take the claimant as it finds her.
Secondly, it is foreseeable that a person who has sustained an injury is at a disadvantage on the open labour market as compared to a person who is equally qualified and able-bodied.
The claimant submits that disadvantage on the open labour market can manifest itself in a number of ways. There might be some physical aspects of certain jobs that an injured person cannot do or is disqualified from performing or taking up the role. The other is that the injured person may be negatively perceived or perceived as being unable to perform certain aspects of the role regardless of whether they can or cannot and they are therefore at a disadvantage in that respect.
Thirdly, the injured person is at disadvantage on the open labour market because they are perceived as being a liability to the employer and therefore, they may not be hired or they may not have their employment extended at the end of a probationary period; or, they may be discriminated against by co-workers and superiors because of the perceived injury or because that person's employer does not want to have a person with a perceived injury as the face of the company.
The claimant says that it is those three categories in the third submission that she has experienced since sustaining an increased level of disability as a result of the accident in her roles with Fullerton, Metal Manufactures and St Vincent.
The insurer’s submissions
The insurer says that this case is more in keeping with Wilson v Peisley [1975] 7 ALR 571 noting the observations of Barwick CJ at [574]:
“The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition, was not merely latent in the respondent but that events not of an unusual or unlikely kind could and might in the ordinary course of life have evoked that condition had not the appellant’s negligence intervened. The judge included this possibility in the vicissitudes of life which he was bound to bring to account in connection with the assessment of economic loss. In my opinion, he was not in error in so doing. No question arises in this case as in such cases as Watts v Rake (1960) 108 CLR 164; [1961] ALR 333 and Purkess v Crittenden (1965) 114 CLR 164; [1966] ALR 98 as to onus of proof. The existence of pre-existing condition and of its propensity for harm to the respondent was fully made out.”
The insurer submits in the present case, the claimant had a 20-year history of problems with MS. It was a problem and it continued to be a problem and some discount must be had for this.
The insurer concedes that there is some loss arising from the motor accident but in assessing damages, it must be taken into account that the MS condition was always going to be a problem.
FINDINGS
The claimant’s credit
I found that the claimant gave her oral evidence in a frank and honest manner. There was no sign of embellishment.
In oral evidence, the claimant was questioned at length about the information she provided to Fullerton about her medical conditions and capabilities in a medical assessment form when she applied for the job. She was asked why she did not disclose her MS condition to that employer. The claimant readily admitted that she did not advise Fullerton of her pre-existing MS condition because she was afraid she would not get the job. In circumstances where the claimant was doing her best to mitigate her damages, I do not consider that the claimant’s credit has been impugned.
The claimant has also made some errors in calculating her average net weekly wage for the purpose of expressing her claim for past economic loss. Again, in my view, that is not something that reflects adversely on her credibility. Generally, I accept the claimant as a witness of truth.
Nature and extent of the claimant’s injuries and the effects of her pre-existing condition
I find that the claimant’s evidence and the medical records of the MS Clinic establish that as a result of her MS condition diagnosed in 2001, the claimant had, prior to the accident, experienced various levels of disability affecting mainly her left leg and thereby reducing her mobility.
I accept the claimant’s evidence that for a number of years prior to the accident (as a result of improved methods of treatment), the physical deficits arising from her MS condition were stable and as a result, the claimant was only required to occasionally rely on her Canadian crutches for stability and mobility. This is corroborated by the clinical records of the MS Clinic.
I find that as a result of the accident, the claimant has sustained an injury to the right lower leg and right ankle, resulting in a partial tear of her deltoid ligament, and an injury to her head involving a scalp laceration to the right parietal region which required closure with three staples.
In making these findings, I accept the evidence of Dr Gothelf, Dr Harrisberg, Dr Harrington, Dr Dixon, Dr Sheehy, Dr Harrington and the certificate of Medical Assessor Cameron. The evidence of Dr Walker also supports the right ankle injury.
I accept the claimant’s evidence that as a result of her head injury, she has developed persisting migraine headaches after the accident. This is corroborated by the evidence of Dr Harrisberg, Dr Sheehy and Dr Dixon.
I accept the evidence of Dr Dixon and Dr Sheehy to the effect that the claimant’s neurological symptoms worsened after the accident as a consequence of the claimant’s physical injuries and resulting restrictions. The neurological symptoms, in turn, have caused further deterioration in the claimant’s physical condition. I accept that her injuries to the right leg and ankle have increased gait derangement and I am satisfied that the claimant developed post traumatic Achilles tendonitis and os calcis bursitis, an equinus deformity to the right foot.
I find that, as a result of the injury to the right ankle, the claimant has developed post traumatic stiffness in the right ankle and the subtalar joint with pain on the sinus tarsi radiating down the medial side of the right ankle and pain over the mid foot.
As a result of the combination of those injuries and disabilities, I accept that the claimant has, and continues to have, limitations and restrictions in standing, walking and lifting leading to an increased reliance upon the use of her two crutches for mobility and stability at her workplace and in her day-to-day activities.
Considering the findings of Medical Assessor Cameron, and the claimant’s increased reliance on the use of her two crutches, I accept that the claimant has developed consequential injuries to her lumbar spine, thoracic spine and right shoulder. I also note the finding of Medical Assessor Cameron that the claimant’s injury to the right ankle gave rise to a permanent impairment of 3%.
Considering the evidence of Dr Whetton and the findings of Medical Assessor Canaris, I am satisfied that the claimant’s ongoing physical disabilities and impairments have resulted in a significant psychological reaction in the form of a persistent depressive disorder with anxious distress. I note the finding of Medical Assessor Canaris that the psychiatric injury gave rise to a permanent impairment of 7%.
As to the impact of the claimant’s pre-existing MS, I note the divergence of views of the various doctors. I accept the claimant’s evidence generally as to her capacities and functioning before the accident and note that her evidence correlates with her pre-accident medical records. With that in mind, I prefer the evidence of those doctors who attribute most of the claimant’s present disabilities to the accident to the evidence of doctors who attribute most of the claimant’s present complaints to her pre-existing condition.
I note that MS is a progressive condition and that the claimant’s condition is expected to deteriorate in the longer term.
Impact on injuries and disabilities on capacity to earn
I am satisfied that the injuries, disabilities and impairments arising from the accident have impacted on the claimant’s past ability to work and that they will continue to impact her future earning capacity.
DAMAGES FOR PAST AND FUTURE LOSS OF EARNINGS OR EARNING CAPACITY
The legislation and legal principles
Section 4.5(1)(a) of the MAI Act provides that damages may be awarded for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity.
In cases such as Medlin v State Government Insurance Commission [1995] HCA 5 and Husher v Husher [1999] HCA 47, the High Court of Australia confirmed that the issue to be determined in the present case is whether the claimant has sustained a loss or diminution of her earning capacity and if so, whether that loss or diminution will result in economic loss.
In calculating any economic loss into the future, I must have regard to the provisions of s 4.7 of the MAI Act.
Section 4.7(1) of the MAI Act provides that damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based, accorded with the claimant’s most likely future circumstances but for the injury.
Section 4.7(2) of the MAI Act provides that the amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
Section 4.7(3) of the MAI Act provides that if an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
Section 4.9(1) of the MAI Act provides that where an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referrable to deprivation or impairment of earning capacity, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate. Section 4.9(2) of the MAI Act prescribes a discount rate of 5%.
Section 4.7 of the MAI Act does not preclude the awarding of a buffer for future economic loss. The occasion for a buffer in accordance with the principles enunciated in Penrith City Council v Parks [2004] NSWCA 201 is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine.
Determination of damages for past loss of earnings
The claimant claims damages for past economic loss on the basis that all the periods that she was unable to work or was off work after the accident to the date of the assessment were due to the consequences of her injuries and disabilities arising from the accident. I accept that submission.
The amount claimed by the claimant is $149,894.12. The way that this amount has been calculated is outlined in the claimant’s submissions on page 4 of the claimant’s supplementary bundle of evidence.
The insurer submits that in the circumstances of this case, a buffer of $30,000 should be allowed.
Considering my findings and all the available evidence, I accept, on the balance of probabilities, that all the periods of disruption to the claimant’s employment after the accident were due to the consequences of her injuries and disabilities arising from the accident. That is, but for the accident, the claimant would have continued to work in the same way as she had done in the past. Apart from 2011, (when it appears that the claimant was engaged in full time study), the claimant was consistently employed for 16 years prior to the accident. Following the accident, the claimant’s employment has been significantly disrupted. Her impressive pre-accident history of employment and attainment of various qualifications were achieved despite her MS condition.
In the circumstances, I propose to allow all of the claimant’s loss of earnings arising from post-accident periods of disruption to her employment as past economic loss:
(a) $15,432 – for the loss of 12.86 weeks from 01/04/2019-30/06/2019, at $1,200 net per week, based on an annual salary of $82,500;
(b) $25,049 – for the loss of 18.86 weeks from 25/02/2020-6/07/2020 at $1,328.17 net per week, based on an annual salary of $95,000;
(c) $26, 634 for the loss of 17.57 weeks from 31/03/2021-01/08/2021 at $1,515.92 net per week based on an annual salary of $110,000, and
(d) $35,445 for the loss of 25.5 weeks from 01/02/2023-02/07/2023 at $1,390 net per week, being the average net weekly wage based on the annual salaries of $110,000 at Metal Manufactures and $86,000 at St. Vincent.
The above allowances come to a total of $102,560. Accordingly, I make an award for the claimant’s past economic loss in that amount.
I make an award for the claimant’s past loss of superannuation benefits in the amount of $11,282 (11% x $102,560).
Determination of damages for future loss of earnings
It is the claimant’s submission that, but for the injury, she had intended to work until normal retirement age of 67 and had anticipated stable, continuous employment. I accept that was her intention. It is also clear from the claimant’s evidence that her intention, but for the injury, was to continue her upward career trajectory in the property industry.
The evidence shows that on 3 July 2023, the claimant obtained employment with Strathfield Council as a strategic property officer. At the time of the assessment conference, the claimant was so employed.
According to the contract of employment, which was submitted into evidence at my direction, after the assessment conference, the annual base salary was $124,538 plus superannuation. I calculate the claimant ‘s net weekly salary in that position to be about $1,748.
The claimant contends that there is a significant likelihood that she may not once again pass probation and will be left unemployed. If she passes probation in her employment at Strathfield Council, the claimant contends that she will nonetheless remain at a significant disadvantage on the open labour market compared to an equally qualified able-bodied applicant.
In the circumstances, the claimant submits that she is likely to continue to experience significant difficulty in maintaining employment, obtaining promotions, and securing more lucrative roles with new employers in her industry.
The claimant submits that the disadvantages on the open labour market are, on a conservative estimate, likely to result in a diminution of future earning capacity at an average rate of $20,000 net per year. In the claimant’s submission, this claimed loss would represent one missed promotion or one missed potential job opportunity with a new employer.
Accordingly, the claimant makes a claim for future economic loss in the sum of $268,730 ($20,000 / 52 x 822 [30-year multiplier] less vicissitudes of 15%).
The claimant makes a claim for loss of future superannuation loss at the agreed rate of 14.42%.
Alternatively, the claimant makes a claim for future economic loss by way of buffer in the sum of $300,000 inclusive of future superannuation loss.
The insurer submits that no award should be made for future economic loss.
I have made certain findings about the claimant’s injuries and disabilities. I have made a finding that those injuries, disabilities and impairments will continue to impact on the claimant’s future earning capacity.
Whether she lost successive jobs post-accident as a result of poor performance due to her physical and psychological injuries or due to perceived disability, or both, is immaterial. The insurer must take its victim as it finds her and that includes her participation in a labour market where image and performance are inseparable. The claimant’s pre-accident education and employment record speak for themselves. She had no difficulty in achieving qualifications and in obtaining and retaining employment appropriate to her training and aspirations.
Doing the best I can, and noting that the claimant’s losses to date have been over $100,000, or an average of about $20,000 per year, I find that the claimant’s diminution of earning capacity will be about $400 per week.
I do not accept the submission that this case is similar to Wilson v Peisley, in the sense that it was an accident waiting to happen. The accident in which the claimant was injured was a significant one where she was thrown into the air on impact with a motor vehicle and her injuries, physical and psychological, were serious.
I do accept the evidence that MS is a progressive disease, and for that reason, vicissitudes should be increased above the usual 15%. In the circumstances of this case, I propose to increase vicissitudes to 30%.
Accordingly, I propose to make an award for future loss of earnings calculated as follows – $400 x 822 x 70% = $230,160.
I make an award for the claimant’s loss of future superannuation in the amount of $33,189 (14.42% x $230,160).
Travel and accommodation expenses
The claimant makes a claim for damages for travel and accommodation by way of a buffer in the sum of $20,000.
According to s 4.5(1)(b) of the MAI Act, damages may be awarded for costs relating to accommodation or travel (not being the costs of treatment and care) of a kind prescribed by the Motor Accident Injuries Regulation 2017 (the Regulation).
According to cl 9 of the Regulation, the kind of accommodation or travel for which damages may be awarded (subject to Division 4.2 of the Act) is any accommodation or travel for which the claimant has incurred, or likely to incur, a cost as a result of injury caused by the motor accident.
In written submissions, the claimant submitted she was making a claim for “future expenses in the sum of $20,000”.
In making the claim, the claimant relies on a report from Ronald Cook of Travelaw dated 22 August 2023.
In oral submissions, I invited counsel for the claimant to make any submissions about the claim. He indicated that the claimant relies on the report of Mr Cook.
In his report, Mr Cook referred to his letter of instructions from the claimant’s solicitors dated 21 August 2023 (a copy of which was not provided to the Commission) and stated that his report about the claimant’s “travel requirements” was based upon the following instructions:
“As a result of her injuries and ongoing disabilities, the Claimant has difficulty undertaking travel in economy class. As such, she claims the increased costs of travelling business class for international and domestic destinations for the rest of her life in addition to a carer to take her on and off the plane and through the airport, and any associated transport thereafter”.[76]
[76] Page 248 of the claimant’s supplementary bundle.
In his report, Mr Cook provided estimates of what the costs of business class airfares would be for various international and domestic destinations compared with the cost of travel in economy class. In preparing his report, Mr Cook indicated that he relied on the opinion of occupational physician, Dr Farhan Shahzad found in his supplementary report dated 18 August 2023 as follows:
“On the balance of probabilities, [the claimant] will continue to have ongoing limitations as a result of the physical injuries sustained in the subject accident which include a right shoulder injury, right ankle injury, low back pain and ocular migraines with headaches, following head trauma. Therefore, in my opinion, she requires business class seating for domestic or international travel.”[77]
[77] Pages 186 and 248 of the claimant’s supplementary bundle.
In his report, Mr Cook has also included in his report, estimates of accessible hotel rooms based on the report of rehabilitation counsellor, Kylie Warry, dated 19 April 2023.
First, I note there was no direct evidence from the claimant as to what difficulty she has had to the date of the assessment conference, about any travel in economy class. This would also explain that there is no evidence as to what costs she has incurred for any increased cost of travel.
Secondly, I note that there was no direct evidence from the claimant as what travel plans she might aspire to in the future, and how she might incur increased costs of such travel as a result of her injury.
Thirdly, for reasons given earlier, I have indicated that I am unable to give any weight to the evidence of Dr Shahzad.
In these circumstances, I decline to make any award for travel and accommodation expenses.
ASSESSMENT OF DAMAGES SUMMARY
| Past loss of earnings | $102,560 |
| Past loss of superannuation | $11,282 |
| Future loss of earnings | $230,160 |
| Future loss of superannuation | $33,189 |
| Fox v Wood damages | $5,041 |
| Travelling expenses | Nil |
| TOTAL DAMAGES ASSESSED | $382,232 |
COSTS AND DISBURSEMENTS
I assess the claimant’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 as summarised in the attached document.
CONCLUSION
Under sub-ss 7.36(3) and 7.36 (4) of the MAI Act, I specify the amount of damages for this claim as $382,232.
The insurer is to have credit for the sum of $22,463.20 under s 3.40(1)(b) of the MAI Act for the amount of statutory benefits already paid to the claimant.
The amount of the claimant’s costs, considering the amount of damages assessed in respect of this claim, assessed in accordance with the Regulation is $52,523.61 inclusive of GST.
0
4
0