Sisounon v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 412
•1 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sisounon v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 412 |
| CLAIMANT: | Vilaivan Sisounon |
| INSURER: | NRMA |
| MEMBER: | David Ford |
| DATE OF DECISION: | 1 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under 7.36(3) and (4); claimant was a front seat passenger in a motor vehicle involved in a collision with the insured vehicle; insurer admitted liability and no allegation of contributory negligence; claimant suffered soft tissue injuries to her cervical spine, head, lumbar spine and right shoulder resulting in an assessment of whole person impairment at 7%; claimant was previously injured in a workplace accident in 2013 and as a consequence was partially disabled for paid employment; since 2016 claimant had been involved in voluntary work but intended to obtain some form of paid employment despite her partial incapacity for work; insurer disputed her intention to seek paid employment post-resolution of her workers compensation claim; claimant qualified for cleaning work and some basic office work; claim for past and future economic loss; Held – claimant is entitled to damages for past and future economic loss. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of claim for damages made in accordance with s 7.36 of the Act 1. On the issue of liability for the claim the NRMA’s 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 assessed in respect of this claim is $45,000 which includes the statutory benefits paid by the insurer. 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 and the Motor Accidents Injuries Regulation 2017 are the regulated costs. |
STATEMENT OF REASONS
INTRODUCTION
On 8 February 2020 Vivian Sisounon (the claimant) was a front seat passenger in a motor vehicle stationary at the intersection of Cow Pasture Rd and Hoxton Park Rd Hoxton Park. It then transpired, the motor vehicle being driven by the insured driver, collided with the rear of the claimant’s vehicle.
After the accident the claimant attended Fairfield Hospital for treatment and was later discharged after several hours. In the Application for Personal Injury Benefits dated
4 March 2020, she states she suffered the following injuries:(a) neck pain;
(b) low back pain;
(c) right sided shoulder pain;
(d) left leg pain;
(e) back pain, and
(f) head.
At the time of the accident, the claimant had not worked in paid employment for 11 years. Previously, she worked at Inghams Chicken from the period 2009 until 2013. She sustained a workplace injury, had some carpal tunnel symptoms, and had a carpal tunnel operation. She also, at that time, suffered from neck pain, left shoulder pain, left wrist pain and low back pain. She was terminated from this employment, as they were unable to provide her with light duties. Her workers compensation claim was resolved in May 2016. In 2016 she obtained voluntary work with the Lao Association working three hours per day, five days per week. However, it is submitted, she continued looking for other work and registered with Job Network and job search agencies including Mission Australia.
Her work at the Lao Association required her to do cleaning work. She would clean and mop the hall and premises and clean the windows. She would clean the premises once a week and would also deliver letters and pamphlets about the Lao Association to members of the Association and to the wider community. She would do this twice a week. She also assisted with the cooking when the Lao Association held fund raising events.
Since the accident, she has not been able to engage in either full-time or part-time employment. The Medical Service, by virtue of the Certificate of Medical Assessor Ian Cameron dated 23 December 2023, determined her whole person impairment in respect of her physical injuries was 7%, and accordingly, she is not entitled to damages for non-economic loss.
The insurer wholly admitted liability by letter dated 2 October 2020 and accordingly, the claim comes before me solely to assess damages.
Outline issues in dispute.
The following issues have arisen in this matter:
(a) non-economic loss;
(b) past economic loss;
(c) future economic loss, and
(d) travel and accommodation expenses.
The main issues requiring my determination are as follows:
(a) to what extent if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in her ability to earn an income from the date of the accident up until the present time and for the remainder of her working life, and
(b) what is the entitlement to damages which flow from the findings on the above issues.
Documents considered.
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Submissions made by the claimant.
I refer to the statement of the claimant dated 6 August 2020. This statement does not deal with the issue as to whether, prior to the accident, the claimant was attempting to obtain some form of paid employment.
I also refer to the statement of the husband of the claimant, Phomma Sisounon, dated
3 June 2024. He states the following at paragraph 18:“18. Before the accident of 8 February 2020, Vilaivan was to my knowledge and observation, fit and well. She had previous surgery to both her wrists, but was able to do all the housework, including washing the dishes, cooking, cleaning, and doing the laundry before we separated. She also regularly went to do volunteer work at the Lao Association in which she told me that she would do cleaning work and help deliver letters and pamphlets. She had not before the accident, complained to me of pain in her neck, shoulders, arms, back or legs. She seemed happy and social. She regularly went out with her friends and shopping. She was also in addition to doing volunteer work at the Lao Association, job seeking, as I would often hear talking on the phone with people asking about jobs and employment positions.”
Mr Sisounon was present at the assessment conference but was not required for questioning by either party.
I refer to the statement of the claimant dated 3 June 2024 and note the following paragraphs:
“23. In about 2016 I found work at the Lao Association working 3 hours per day 5 days per week. This, however, was only voluntary work and I continued looking for other work and registered with job network and job search agencies including Mission Australia.
25 Though I had previous work-related injuries I was able to perform the work that I performed at the Lao Association, despite my injuries. It was my intention to locate paid cleaning work or paid delivery work, as my Centrelink benefits were not sufficient to me to live comfortably on, and I also wanted to earn more so that I would have more money for retirement.
26. I also prior to the motor vehicle accident and whilst my husband and I were living together at 9 Poole St, West Hoxton, I was the main person performing the housework at home and doing cooking, cleaning, vacuuming mopping and laundry.
33. Since the motor vehicle accident, I have continued to do voluntary work for the Lao Association, 15 hours per week. However, since the accident, I have only been doing light cleaning work, such as wiping tables. I no longer mop or clean the windows because of pain. I no longer deliver letters and pamphlets because of difficulties walking for long periods .I continued to help with cooking at their fund raising events, held about once a month but the amount of assistance I can provide now is more limited as I cannot chop very much before experiencing pain and am unable to assist in the heavier aspects of cooking, such as the lifting of the big heavy pots that they would use at such fund raising events. I continue to sing at the weekly sessions with the elderly members.
37. I continue to volunteer at the Lao centre, as I do not like being locked up at home, though I am now only doing light work such as wiping tables and benches and filing and am not paid for the work that I do. I do not like to be at home not doing anything. I have worked for most of my life. But for the accident, I would have also been able to do more with my life and find paid work.
38. I continued experience pain in my neck, upper and lower back, right shoulder and referred pain to my left leg.
39. I have difficulties sleeping, sitting, standing, and walking for prolonged periods.”
I refer to the letter from Bountham Vongsaya. President of the Lao Community Advancement dated 29 May 2024. Inter alia, he states the following:
“Under arrangement with Centrelink, she has been approved to volunteer for a minimum of 30 hours per fortnight at our above centre. Her jobs prior to her motor vehicles on 8 February 2020 were cleaning, including cleaning and mopping floors and windows, delivering letters and pamphlets, cooking for religious or fund-raising events.
She has difficulties performing her pre accent volunteer duties since 8 February 2020 and in particular the heavy aspects of cleaning. She also has difficulties walking for long periods to deliver letters and pamphlets. Since about 8 February 2020 to date, we have provided her with lighter duties including light cleaning work, such as wiping tables, light cooking duties and also some office duty, such as copying, filing etc. She is able to sit and rest when required.”
The claimant was seen on a medico legal basis by Dr Andrew Porteous, occupational physician, and I refer to his report dated 16 March 2023. On page 2 of his report, under the heading, “History of Presenting Complaint” he states the following:
“Today, she said that with the accident she had onset of increased cervical pain and increased lumbar pain. She also said that she had an increase in shoulder pain having previously had some right shoulder pain and had some left knee pain, which today, she said was not a separate injury but seemed to come from the back.
Today, she gave a history of having prior to this accident, had a workplace injury from Inghams Chicken, where she had been from 2009 to 2013. I understand that she had some carpal tunnel symptoms and carpal tunnel operation there, and then, also had some neck pain, left shoulder, pain left wrist pain and low back pain. She was terminated from employment there when they could not find light duties.”
I refer to page 5 of the report where he opines in relation to the claimant's capacity and fitness for work. He states the following:
“In my opinion, she is restricted from repetitive activity of the right shoulder and using the right arm from mid chest height stretching up or using it above shoulder height. She is restricted from constant or sustained repetitive neck rotation and from frequent or constant heavy lifting, pushing, pulling, or carrying or constant or sustained bending. In my opinion she is restricted from walking up and down steps or slopes. She was careful with all activity today and had difficulty even getting on and off the couch.
She said she was actually off work and has been off work since the accident at Inghams and was made redundant in 2013. She got some voluntary work in 2019, doing some cleaning which was more likely than not, sheltered, as it was voluntary and did not involve a commercial process but were simply, she said I understand, wiping the desk and tables at her own pace without substantial productivity demand.
She was therefore in sheltered work doing some very restricted hours and more likely than not could take time off as her symptoms were troubling. She reports that she did have some prior intermittent neck and lumbar back pain and right shoulder pain all of which got worse after the accident.
It is likely that she always had a degree of incapacity, particularly because of her right shoulder condition, which was her dominant hand and that she would not have been fit to work in Inghams, as was the case, with her being made redundant from them. I also note that she has only averaged English capacity and we had to address frequently through an interpreter. I therefore can only conclude that the subject accident and associated injuries increased required restrictions and even further reduced capacity has further contributed to her being unfit for work in her pre-injury jobs, not only including at Inghams but also her other jobs in Australia which would have included assembling, soldering pats of solar panels, making stockings and for short time for a locksmith.”
On Page 6 of his report Dr Porteous states the following:
“With regard to his report dated 30 June 202,1 I agree with Doctor Ashwell that Ms Sisounon had an aggravation, acceleration, exacerbation or deterioration of her pre-existing rotator cuff tear and the tendinitis in the tendon.”
I also refer to the further report from Dr Porteous dated 30 June 2023, where he states the following on page 3:
“She was therefore in sheltered work doing very restricted hours and more likely than not could take time off as her symptoms were troubling. She reports that she did have prior intermittent neck and lumbar back pain and right shoulder pain, all of which got worse after the accident .It is likely that she always had a degree of incapacity, particularly because of her right shoulder condition, which was her dominant hand and that she could not have been fit to work at Inghams as was the case with her being made redundant from them.”
Submissions made by the insurer.
In their submissions dated 5 July 2024, the solicitor for the insurer has submitted the subject accident was not a significant motor accident. It records the claimant did not require an ambulance, following the collision and self-presented to Fairfield Hospital complaining of neck pain only. The driver of the claimant’s vehicle was reportedly ‘Ok’ following the accident. Furthermore, it is submitted the claimant had not worked in paid employment for
11 years prior to the accident and because of her pre-accident injuries, Dr Dixon, who provided a medico legal report in relation to her workers compensation claim, considered the claimant medically retired from the workforce. He also opined her working life had been at least shortened by five years due to her work-related injuries. Dr Stephen Potter who provided a medico legal report on behalf of the workers compensation insurer, did not consider the claimant had sustained her injuries at work, but considered she had developed a chronic pain disorder without anatomical cause. It is further submitted the claimant has been in receipt of Centrelink payments since she settled her workers compensation claim.Dr John Ashwell, orthopaedic surgeon, provided a medico legal report on behalf of the insurer. On page 9 of his report, he opined the following:
“She was not employed at the time of the motor vehicle accident and there were no plans for her to return to work since her employment was terminated in 2013. I believe in the absence of the subject accident her employment condition would have been the same.”
The insurer arranged for her to be examined by Dr Frank Machart and I refer to his report dated 26 April 2023. I refer to page 5 of his report under the heading “Diagnosis” where he states the following:
“Ms Sisounon presented with a plethora of pain on background of long-term chronic pain and disability, multiple pre-existing arthritic issues in lumbar spine, cervical spine and attention to both shoulders. Looking at the circumstances of events at and after the MVA, and the medical documentation, my diagnosis is that she suffered musculoligamentous sprain in the cervical spine. Additional symptoms were reported later. Lack of immediate pain mitigates against lumbar spine or right shoulder substantial or structural injury. If there was significant, structural injury, or anatomical disruption, then I expected symptoms to be evident in hospital. There are degenerative changes in multiple areas of the body. It is difficult to accept the plethora of pain now, more than 3 years later as caused by the MVA.”
On page 8 of his report, he states the following:
“She was not working at the time of injury. She was considered partly disabled. The MVA did not cause additional disability.”
In summary, the insurer submitted the first occasion upon which the claimant suggested that she was looking for more work prior to the motor vehicle accident, was in her statement dated 3 June 2024. It is also submitted; there no history has ever been provided to any of the doctors in this case of her attempting to look for work after the subject accident. The insurer submits it is unlikely she would have obtained paid employment but for the subject accident and furthermore, the subject accident, has not caused any additional disability to her in terms of her capacity to earn an income.
Reports from the medical service
I refer to the Certificate and Reasons of Medical Assessor Cameron dated 23 December 2023. He certified the following injuries were caused by the motor vehicle accident which gave rise to a permanent impairment of 7% the injuries were as follows:
· cervical spine, soft tissue injury;
· head, soft tissue injury;
· lumbar spine, soft tissue injury, and
· right shoulder, soft tissue injury.
REASONS
Past loss of earnings
The parties complied with my direction and provided me with copies of letters of instruction, which they had in their possession, to the various medico legal doctors engaged by them. At the assessment conference, the solicitor for the insurer, put to the claimant she had not told any doctor involved in this matter, she intended to return to paid employment prior to the subject motor vehicle accident. The claimant did agree with this fact but said “inside me I wanted to work”. She further stated “yes, I want to work but there is no job for me to work. I tried to find work but could not find work” on further questioning, she provided more information regarding her attempts to find paid employment after the subject motor vehicle accident. In answer to questions posed by the solicitor for the insurer, she stated the Job Centre arranged for her to attend interviews, but no one would hire her. Furthermore, she said after leaving Inghams she had many interviews for paid work, arranged by Mission Australia but was unsuccessful. Since leaving Inghams, she had attended many interviews, on site at factories and her response was “I was not very choosy, I would take any job”. She admitted the barriers to obtaining employment after leaving Inghams were her language difficulties, her age, and no experience in handling an office job. She conceded, even with the help of mission Australia, she could not obtain paid employment.
It was put to her by the solicitor for the insurer, the symptoms of pain before the motor vehicle accident were now the same. She replied, “the pain is aggravated more”. She now has numbness on both sides of her leg and can no longer drive a motor vehicle. Post the motor vehicle accident, she continued to ask around her friends for factory work without success. Furthermore, she stated after the subject accident, the pain in her lower back was worse and sometimes she experienced numbness, which is also getting worse. She said prior to the motor vehicle accident, had she been offered paid employment, she would have accepted it.
After having the benefit of hearing from the claimant at the assessment conference, and having regard to the statement of her husband, I find the claimant, although further incapacitated because of the subject motor vehicle accident, was seeking to find some form of paid employment involving light duties, which she could perform within her physical limitations. I further prefer the opinion express by Dr Porteous, in his report dated
16 March 2023, that although the claimant has had a degree of incapacity, the subject accident and associated injuries, increased required restrictions, and even further reduced capacity for her to find paid employment.
Whilst there has been a further reduction off her ability, despite her pre-existing injuries and disabilities, to obtain some form of paid employment, I do not accept the submission made on behalf of the claimant I should award a buffer of $80,000 plus superannuation for past economic loss. At the conclusion of the assessment conference, the solicitor for the insurer, proposed a buffer of $10,000 including superannuation by way of a buffer.
I accept the claimant was genuine in her intentions to find at least some form of paid employment after the motor vehicle accident, despite her pre-existing incapacity for work. In the circumstances, I believe an appropriate award for past loss of earnings, including superannuation is the sum of $30,000.
The insurer has made no statutory payments in this matter.
Future loss of earnings
The solicitor for the claimant submits a buffer of $80,000 plus superannuation. The solicitor for the insurer submitted a nil allowance. Having regard to her age and her reduced capacity for some form of paid employment, as a consequence of her injuries and ongoing disabilities I find the most likely future circumstance for her is that she will suffer a further diminution in her earning capacity in the future, but not for a lengthy period, and therefore, in the circumstances, I consider it appropriate to allow an amount for future loss of earnings including superannuation by way of a buffer in the sum of $15,000.
Travel and accommodation expenses
I advised counsel for the claimant at the end of the assessment conference, there was no documentation served in the matter which provided me with reasons why I should allow award an amount for travel and accommodation expenses in the future for the claimant. I confirm I stated to both parties at the time, I would make no allowance for this head of damage as claimed. I note the amount claimed was the sum of $20,000, which cannot be substantiated in the circumstances of this matter.
Assessment of damages summary
Under sub-s 7.36 (1)(b) of the Motor Accident Injuries Act 2017 (MAI 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:
past loss of earnings $30,000
future loss of earnings $15,000
total of economic losses and non-economic loss $45,000
travel and accommodation expenses nil
reduction for contributory negligence nil
TOTAL DAMMAGES ASSESSED $45,000
Costs and disbursements
I assess the claimant's legal costs and disbursements in accordance with the MAI Act and the Motor Accident Injuries Regulation 2017 as scheduled fees and agreed disbursements.
CONCLUSION
On the issue of liability for the claim NRMA's 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.
I specify the amount of damages for this claim as $45,000 which includes any statutory benefits paid by the insurer.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, is assessed in accordance with the MAI Act as the scheduled costs and agreed disbursements.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
(a) MAI Act;
(b) Motor Accident Injuries Regulation 2017;
(c) Personal Injury Commission Regulation 2020;
(d) Motor Accident Guidelines 2017, and
(e) Personal Injury Commission Rules 2021.
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