Slaiwa v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 153
•22 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Slaiwa v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 153 |
| Claimant: | Sarah Slaiwa |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Hugh Macken |
| DATE OF DECISION: | 22 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of claim for damages made in accordance with section 94; psychological injury; economic loss; conflicting medical material; Held – damages under sub-sections 94 (3) and 94 (4) and costs awarded; 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. |
| determinations made: | CERTIFICATE OF DETERMINATION Issued under section 94 (5) of the Motor Accidents Compensation Act 1999 Assessment of Claim for Damages made in accordance with section 94 of the Act 1. I assess the Claimant’s legal costs and disbursements in accordance with s 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet in the sum of $10,063.90. 2. 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. 3. Under sub-sections 94 (3) and 94 (4) of the Motor Accidents Compensation Act 1999 (the Act), I specify the amount of damages for this claim as $75,000. 4. The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $10,063.90 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
The claimant was injured in a motor vehicle accident on 9 November 2019 when the vehicle in which she was travelling was struck by the insured vehicle and, spun over and ended up on its roof. The claimant suffered injuries which have primarily resolved, other than a psychiatric injury which, she contends, continues to greatly trouble her today.
The matters requiring assessment are limited to past and future economic loss. The claimant was assessed as suffering a threshold injury being post-traumatic stress disorder but it is not an injury which exceeds 10% whole person impairment which would otherwise entitle her to compensation for non-economic loss.
Colouring the assessment of past and future economic loss are what the insurer reasonably describes as credit issues and the general tenor of the medical material. Accordingly, it is appropriate to deal with the claimant and the medical material prior to undertaking a specific assessment of the claims for past and future economic loss.
The claimant
Put simply, the claimant was not a reliable witness. In her statements she made numerous assertions which are contradicted by the facts.
Her statement bearing the date 13 October 2022 says:
“approximately 16 or so months ago I became my father’s carer and commenced receiving a carer’s allowance.”
In fact, this was not April 2022 but she was in fact in receipt of Centrelink carer’s
allowance from 1 September 2020. The claimant submitted that she became her father’s
carer “as a means of mitigating her loss.” She was unable to identify with any accuracy
the periods in which she resided with him as his carer, the tasks she was obliged to
undertake (including transporting him) nor any of her obligations around notifying
Centrelink of changes in her circumstances. I do not accept the confused and
contradictory evidence she gave in respect to the circumstances of her becoming her
father’s carer nor the duties she performs.
In her application for benefits she asserted that she was earning $2,500 net per fortnight. In fact she was earning approximately $1,500 net per fortnight. In her statement she says “at the time of the accident, I was earning about $1,250 after tax per week.” This was clearly not so. At best she was earning about $750 per week at the time of the accident. She stated to the medico-legal practitioners who examined her that she had no relevant medical history in respect to psychological/psychiatric treatment. This was not so. Some 6 months before the accident she was treated for depression and prescribed, on two occasions, anti-depressant medication.
At the assessment conference she was generally evasive and querulous. She originally stated that her sister was “an employee” in her business. This was then clarified to be that her sister “helped me”. It was confirmed with her that she was a sole trader. She agreed that from time to time her sister simply assisted her with the paperwork.
She was evasive and inconsistent about her various places of residence and whether she was cohabiting with her husband or not. She stated that when she referred to “we” in respect to the operation of a child care she was in fact referring to “me”.
When she was questioned about whether she was continuing to work as her father’s carer, whilst staying with her husband and her children for a few days per week she asserted “I am not exactly sure”. She was evasive as to how often she would stay over at her former husband’s place saying that it depends on her work and that sometimes he would work 6 days per week and other times 1 or 2.
10. Put simply, I found her to be a poor historian and the assertions as to her capacity and loss ought not be accepted other than when supporting documentation exists in respect to her assertions.
Medical material
11. Whilst there may be some uncertainty in respect to the veracity of the claimant’s evidence, the medical material supports her assertions of ongoing psychological disability.
12. The report of Dr J. Bertucen dated 18 May 2022 states, somewhat equivocally,
“Nonetheless despite the prevailing psychological disabilities I am not persuaded that Ms Slaiwa is incapacitated for work. She remains motivated with regard to return to work in day care settings and in my opinion she could potentially return to work 4 to 5 days a week in a local day care centre which could access potentially by walking.”
13. Whilst seemingly asserting she is not incapacitated for work the report clearly identifies ongoing incapacity. More fulsomely the report to the insurer of Dr G. Vickery dated 30 June 2022 states that:
“The assessment does accord with what Mrs Slaiwa says are her current symptoms/disabilities on the basis of the history provided.”
He goes on to say that the diagnosis is post-traumatic stress disorder and that:
“The injuries are likely to stabilise following treatment recommended over the next 12 months.”
This is all in light of a specific finding that:
“There is no work capacity due to her incapacitating post-traumatic stress disorder psychopathology.”
14. The report of Dr M. Abu-Arab dated 6 September 2022 states that she was left with
“post-traumatic symptoms such as bad dreams, pre-occupation with thoughts relating to the accident, nervousness, worsening in memory and concentration, agitation with a low frustration tolerance, severe anxiety when driving, avoidant behaviour, being jumpy and easily startled.”
15. Quite clearly, and notwithstanding any findings of credit, I accept the general tenor of the medical material which supports the contention that the claimant does have a psychological injury, being post-traumatic stress disorder, which arises from the accident, has troubled her to date and continues to cause her difficulty.
Past economic loss
16. Whilst the insurer submitted that the claimant’s psychological complaints need to be considered in light of the claimant’s pre-accident history I accept that the medical material supports a claim of incapacity. In particular, the report of Assessor Friend who diagnosed a post-traumatic stress disorder. That said, it ought to be noted that this report did not have any documentation relating to her previous treatment for depression.
17.
The claimant submitted that past economic loss ought to be allowed in the sum of
$1,250 per week. Whilst the claimant asserts this figure it is contradicted by her tax returns. The claimant’s assertion that she “expected those expenses to decrease with time” is not supported by any documentation.
18. Additionally, the claimant had ceased to be what was described as a contractor, for the Complete Care team, prior to the accident. At the time of the accident she was operating a child minding service from her home. She asserts that there was an income from Two Tiny Bears Pty Ltd in the order of $9,000 gross which seems to cover the period 1 August 2019 to the date of the accident. She ceased operating the business after the accident.
19. In her statement dated 15 February 2023 she states that the business had a profit of $31,622 that is in the financial year prior to the accident. In the year following the accident she was in receipt of a Centrelink payment of $550 net per week as a carer for her father.
20. The primary support in respect to the claimant’s incapacity to continue to work seem to be her inability to drive a motor vehicle and thereby take home children in her care. This was the subject of some significant medical conjecture. The report of Assessor Friend states:
“Miss Slaiwa can drive but only drives locally and when necessary. She prefers to drive rather than be driven by her husband.”
21. It was noted that her resumption of driving took place, apparently, about 6 months post-accident.
22. The claimant stated that she can drive with difficulties saying:
“There is a difference between what I can do and what I can do with difficulty.”
23. What is apparent is that the claimant was in employment earning perhaps about $750 per week at the time of the accident. She has not been working, other than as a carer, since the accident. Noting the medical material, I accept that she has suffered a past loss of wage consequent on the accident.
24. It is very difficult to discern what capacity she has, particularly noting that she receives Centrelink benefits the caring for her father notwithstanding that she is also not residing with her father permanently but is residing, at least some of the time, with her husband.
25. Further, the claimant has not sought to return to any other type of employment although clearly she has a residual earning capacity.
26. In these circumstances I propose to provide a buffer in respect to past wage loss between the date of the accident and about the time of her commencement as a carer for her father which was in about September 2020. The calculation is loosely based on a figure of about $500 per week for about 42 weeks giving rise to past economic loss in the sum of $21,000.
27. I note as a self-employed person she would not have obtained any benefit from employer superannuation contributions. I further note that the insurer has paid the sum of $10,978.10 in respect to past economic loss which ought to be deducted from this figure. Accordingly, I assess past economic loss in the sum of $10,000.
Future economic loss
28. The claimant submits that future economic loss ought to be calculated in the sum of $700 per week to age 68. This is seemingly based on estimated net earnings of $1,250 less her earnings as a carer of $550.
29. As I have identified above, I do not accept this submission.
30. Firstly, I am not satisfied that the claimant was earning, or was likely to earn, $1,250 net per week. She was earning closer to $750 net per week.
31. Secondly, I am not satisfied that a Centrelink benefit of $550 per week represents the limit of her earning capacity.
32. Thirdly, this submission does not take into account any possibility of the claimant’s condition improving to the point where she could return to her pre-injury duties. The report of Dr G. Vickery, relied upon the claimant in respect to her current incapacity, also states:
“The prognosis is reasonable with the appropriate treatment.”
He opines that the injuries are likely to stabilise following treatment over the next 12 months.
33. The report of Dr J. Bertucen dated 18 May 2022 is similarly optimistic in respect to the claimant’s capacity to undertake work in the future. He states:
“despite the prevailing psychological disabilities I am not persuaded that Ms Slaiwa is incapacitated for work.”
He also opines:
“Prognosis at this stage is difficult to determine as she has only recently engaged in consistent psychological therapy (with Mr Abu-Arab) which may prove to have significant benefits with regard to her persisting psychological disabilities.
34. As I have outlined above I am satisfied that the claimant has an ongoing disability although it is minor and has only a limited impact on her capacity to work.
35. Physically she is capable of working. She is able to attend to the transport needs of her father and her family more fulsomely. I accept the tenor of the medical evidence that her prognosis, in respect to a recovery from her psychological injuries, is good.
36. Notwithstanding these observations, I accept that she does have an impaired earning capacity and this, in my view, gives rise to an entitlement to compensation for future economic loss.
37. Noting the uncertainties associated with any calculation of future economic loss I consider it is appropriate to provide a buffer in respect to her diminished earning capacity loosely based on about 10-20% impaired earning capacity, consequent on the sequalae of the accident and for about 20 years.
38. Noting that there would also be an associated loss of employer superannuation benefits in all the circumstances I assess the claimant’s future economic loss in the sum of $65,000 noting that as a self employed person she would not have been in receipt of employee superannuation entitlements.
39. In any event any such allowance would ordinarily be offset by a reduction for vicissitudes in respect to other non-accident related factors which may have had an adverse effect on her future earning capacity.
Assessment of Damages Summary
40. Under Sub-section 94(1)(b) of the Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
41. I assess the claim as follows on the findings set out above:
Economic losses
·Past loss of earnings (incl. superannuation and Fox v Wood) $10,000
·Future loss of earnings (incl. superannuation) $65,000
Total of economic losses and non-economic loss $75,000
Total Damages Assessed $75,000
Conclusion
Costs and Disbursements
42.I assess the Claimant’s legal costs and disbursements in accordance with s 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet in the sum of $10,063.90.
43.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.
44.Under sub-sections 94 (3) and 94 (4) of the Motor Accidents Compensation Act 1999 (the Act), I specify the amount of damages for this claim as $75,000.
45.The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $10,063.90 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
• Motor Accidents Compensation Act 1999 (NSW)
• Motor Accidents Compensation Regulation 2015
· Claims Assessment Guidelines/Personal Injury Commission Rules
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