Stuttard v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Stuttard v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 45
Claimant:	Allan Stuttard
insurer:	Insurance Australia Limited t/as NRMA
Member:	Elizabeth Medland
DATE OF DECISION:	7 February 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages; liability not in issue; damages limited to non-economic loss; claimant a 72 year old male living alone in Tamworth; orthopaedic injuries sustained; rib fractures and fracture to right wrist; pre-existing rheumatoid arthritis, with previous unsuccessful surgery to the left shoulder; as a result of the accident, claimant significantly disabled due to inability to adequately utilise his right upper limb, which he was previously heavily reliant upon due to left arm issues; need for care and assistance with domestic tasks and personal hygiene, whereas previously independent; social isolation and loss of enjoyment of life; issue as to whether member to have regard to previous commission awards for non-economic loss; Held – damages awarded: $255,000 plus costs of $30,523.90.
determinations made:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The amount of damages for the claim is $255,000. 2. The amount of the claimant’s costs in the matter is $30,523.90 inclusive of GST.

STATEMENT OF REASONS

Introduction

Mr Allan Stuttard (the claimant) is a 72-year-old gentlemen, residing in Tamworth. He suffered significant injuries as a result of a motor vehicle accident that occurred on 13 June 2019.
The claimant was acting as an instructor to a learner driver friend. The learner driver lost control of the vehicle, which caused it to leave the road and roll a number of times before coming to rest on its side.
He suffered rib fractures and a fracture to the right wrist. The wrist is the claimant’s ongoing concern, with the rib fractures having resolved without ongoing issues.
The insurer has admitted liability. The issue for determination is the amount of damages to which the claimant is entitled to receive.
There is no claim for economic loss. The claim is confined to damages for non-economic loss, with the insurer having conceded the claimant’s injuries exceed the 10% whole person impairment (WPI) threshold.
I held an assessment conference via Videolink on 31 January 2023. The claimant attended independently to his legal advisors, owing to his regional residence.
There are no issues of credit in this matter. I found the claimant to be a witness of truth and there was no suggestion by the insurer that the claimant’s credit is an issue. The claimant is best described by the words of Professor Cumming, orthopaedic surgeon, who was qualified to provide an opinion on behalf of the insurer. Professor Cumming described the claimant as an “extremely pleasant gentlemen.” I agree.

The claimant’s pre-accident status and unrelated health conditions

The claimant has lived rurally throughout his life. He spent his first years of life in Kent, England on a dairy farm. At around the age of 18 he migrated to Australia.
Over the years the claimant has held a number of physical jobs such as: labouring, carnival work, farm work, landscaping, mowing and truck driving. He has been married three times, however, has been single since 2009 and now lives alone in Tamworth.
At the assessment conference the claimant described himself as being in reasonable health prior to the accident. He did however, acknowledge suffering from rheumatoid arthritis.
The claimant has suffered from rheumatoid arthritis from at least 1990 and has been in receipt of a disability support pension since such time. Although, he continued to supplement his income with some part-time work up until around 2013.
Significantly, related to his rheumatoid arthritis, the claimant underwent left shoulder surgery in 2012. Unfortunately, the surgery did not produce a good result. The claimant was left with a weak and restricted left arm, requiring him to be more reliant on his dominant right arm and hand.
Following the surgery, sometime in 2013 the claimant semi-retired, however, continued to perform some work by way of maintenance of machinery on a dairy farm. I am told that the hours were approximately 8-12 hours per week for around three months of the year.
Before me are two bundles of reports from rheumotologist, Dr Croker. Dr Croker overseas management of the claimant’s rheumatoid arthritis condition. The claimant was treated with Methotrexate for a number of years, along with a number of other medications. The various reports of Dr Croker suggest the claimant’s arthritis condition is well managed under his care by way of blood tests, reviews and medication. As of 14 March 2019 (approximately three months prior to the accident) Dr Crocker described the condition as being well controlled.
However, there was an apparent deterioration in the condition in more recent times. In a report dated 13 September 2022 Dr Croker noted a:
“…big deterioration over the last six weeks with widespread joint pain, swelling and stiffness. He has had a marked functional impairment with trouble getting out of a chair, turning taps, showering and doing housework. In fact he has needed help in the home.”
It is noteworthy that methotrexate was discontinued sometime after a review in September 2019 owing to concerns that it may have been contributing to the claimant’s pulmonary fibrosis.
The methotrexate was added back in to the claimants’ treatment regime after review in 20 December 2022. It is also noted that by such time there had been an improvement in the condition with a higher dose of prednisone.
Whilst I have no further reports from Dr Croker after December 2022, the claimant advised me that he has perceived his arthritic condition to have improved with the reintroduction of methotrexate.
At the assessment conference, there was discussion as to whether I should pay any weight to the claimant’s evidence as to the state of his arthritic condition following reintroduction of methotrexate. I decided to allow questioning on this point, noting that I would be assisted by the claimant’s description of his arthritic condition and how it affects him since reintroduction of the medication. The claimant advised that his condition has much improved in the last couple of months, and I accept the claimant’s evidence in this regard, whether the improvement is due to the medication change or otherwise.
The file of the claimant’s vascular surgeon, Dr Qasabian, is before me. It is apparent that the claimant has suffered from some cardiac issues. I was not taken to the file of Dr Qasabian during the assessment conference. There is no suggestion made to me that the claimant’s life expectancy has been shortened.
At the assessment conference the claimant gave evidence that he has no formal qualifications in the maintenance of machinery, although over the years he has picked up skills and experience. In addition to the dairy farm work, the claimant told me that he would also service other machinery such as lawn mowers and motor vehicles. His remuneration would typically be by way of a carton of beer or something similar. He also gave evidence that he provided lawn mowing services to others. I gained the impression from the claimant that he enjoyed such activities with them providing him with some level of fulfilment and purpose. No doubt, they also enhanced his social engagement with community members.
When carrying out such activities, the claimant relied heavily on his right upper limb, owing to the issues with his left shoulder following surgery.
The claimant has given evidence that before the motor accident he was independent in his activities of daily living. Despite the effects of his rheumatoid arthritis, and relying on his dominant right upper limb, the claimant was able to live independently without assistance for daily chores and self care. He was able to cook, mow his lawn and clean his home. He was active socially, and described enjoying spending time with his grandchildren in his yard.
It is noteworthy that the insurer did not question the claimant on, nor take me to, the report of Dr Croker of 13 September 2022 wherein a deterioration of the arthritic condition is reported. It is also mentioned that the claimant required some help in the home as a result. On the evidence before me it cannot be denied that the arthritic condition adversely affects the claimant’s activities. However, the evidence also has me conclude that in all likelihood the deterioration mentioned in September 2022 has essentially resolved at the time of the assessment conference. I am satisfied that the arthritic condition, whilst still adversely affecting the claimant, is well managed.
The claimant also described enjoying cooking for himself and for friends prior to the accident. He also described playing with his grandchildren in his yard prior to the accident.
In terms of other hobbies, the claimant described his enjoyment and interest in painting. While being questioned via Videolink the claimant was able to provide an example of his painting, which was hanging on the wall behind him. Clearly, the claimant takes a lot of pride in his artwork. The type of painting was described as Hobbytex by the claimant. The claimant hopes to return to this hobby in the future.

Injuries

From the scene of the accident the claimant was transported via air ambulance to Tamworth Base Hospital. He sustained fractures of the fourth to eighth left ribs, and a fracture to the right wrist. He was treated with a cast to the wrist.
The claimant was discharged from hospital after six days into the care of his general practitioner (GP), Dr Rankmore. The claimant was also reviewed by an orthopaedic surgeon at the hospital, and surgery was recommended by way of ulna shortening osteotomy and extensor pollicis longus exploration.
Subsequently the claimant was referred to Dr Myers, hand surgeon. Dr Myers disagreed with the suggested surgical intervention. In a report dated 5 September 2019, Dr Myers noted there to be three planes of deformity, “being a loss of flexion/extension, loss of radial/ulna deviation plus rotation.” He opined that the best intervention was an opening wedge radial osteotomy, noting that the claimant had a ruptured EPL.
Dr Myers has performed two surgeries on the claimant’s right wrist. Firstly on 8 January 2020 an opening wedge radial osteotomy and bone graft and wrist arthrosocpy and debridement was performed. Then on 2 June 2020 a right wrist arthroscopy and ulnar shortening osteotomy was performed.
The claimant continued under the care of Dr Myers until approximately April 2021. A report of 1 April 2021 of Dr Myers states as follows:
“I reviewed Alan in rooms today. He moved on to have the repeat x-ray which shows that the osetotomies has gone on to heal well. His range of motion is excellent. His strength is good. He is basically returning back to normal function. I will see him again in three months time with a final x-ray. He will need to upgrade activities including returning to some work on the diary prior to closing his case down.”
Despite an apparent worsening of symptoms the claimant has not returned to Dr Myers. During the assessment conference, Ms Dinkha took the claimant to the aforementioned report of Dr Myers and asked him why he had not returned to Dr Myers. The claimant said words to the effect that “I just thought it was the way it was. I may have to go back.” Again the claimant was pressed on the point, and he answered “I don’t know, I just let it go.” I accept the claimant at his word in this respect. The attitude is consistent with the claimant’s stalwart personality. It would likely be of benefit to the claimant, however, to attend upon Dr Myers again in the near future.
He describes his right wrist condition as “collapsing” sometime around Christmas just passed.
The claimant had the repeat X-ray and went to see his GP thereafter and described the “collapsing” of the wrist and noted that he was not able to hold a cup of coffee effectively. He noted he is due to see his GP in February this year.
Clinical records of the claimant’s GP, Barton Lane Practice, are before me.
The claimant has attended upon his GP on a regular basis since the accident. Dr Rankmore recorded on 18 February 2020 that the claimant’s wrist was much better than before with some apparent improvements in range of motion and strength. However, it was noted that pain gave the claimant “hell” and he was not sleeping. A prescription for Endep was added to assist with neuropathic pain.
Following further surgery, on 12 August 2020 noted there to be “no pain” but review was required with the bone healing slowly.
Unfortunately, the clinical record before me ceases on 7 December 2020 when the claimant attended his GP with complaints relating to apparent unrelated reflux issues.
The claimant has been referred for psychological counselling. In a report dated 12September 2022, Mr Paul Pearson, mental health clinician, stated that the claimant has attended three structured psychological intervention sessions at HealthWise Tamworth, with another scheduled.
In an email of 19 January 2023 HealthWise advised only letters of attendance can be provided and no “court reports.” Accordingly, records of psychological treatment are lacking.

Medico-legal evidence

The insurer arranged for the claimant to be assessed by orthopaedic surgeon, Professor Cumming. A report of 15 March 2022 was provided to the insurer. The claimant also relies upon the opinion of Professor Cumming.
Professor Cumming notes that the claimant has difficulty picking up a cup of coffee which he drops. In terms of past health, Professor Cumming notes:
“Statement regarding his general health is strongly qualified by a history of rheumatoid arthritis over many years and of significant severity. His left shoulder arthroplasty was related to this and he has obvious deformities of his hands and states that his feet are also seriously affected as are other articulations.
I found him to be a stalwart gentleman which accounts for him stating that his general health is satisfactory. Also that he was still working part-time despite his condition.”
Professor Cumming noted that following surgery, the claimant’s wrist alignment appears satisfactory but with pain and limitation of movement. The professor notes the existence of the rheumatoid arthritis which he noted no doubt that same contributes to the limitation of movement.
In terms of prognosis, Professor Cumming states “the prognosis is that he has returned to the best life that he can with the restrictions detailed.”
A WPI assessment of 11% was provided by Professor Cumming. Noted that the professor assessed a 12% WPI, however, deducted 10% on account of the rheumatoid arthritis.
The insurer appears to have taken issue with the methodology utilised in coming to the assessment and in this regard a further report of Professor Cumming is before me dated 17 May 2022. Professor Cumming notes that to compare the left wrist as a “normal wrist” is not appropriate and the rule of a 10% deduction was appropriate in the circumstances.
It appears the insurer remained discontent with the opinion of the professor and a further report was requested. In a report dated 21 June 2022, Professor Cumming described the insurer’s issue as whether the left wrist should be used as a baseline for movements when the contralateral limb is injured.
After consulting a specialist rheumotologist of 50 years experience, Professor Cumming confirmed his original opinion that it is inappropriate to have used the left wrist as a baseline in calculating WPI. This is because there is insufficient correlation given that the opposing joints can be differently affected by the arthritis.
The insurer evidently came to accept the assessment of WPI of Professor Cumming and a concession was provided for entitlement to non-economic loss.
Both parties have obtained opinions from psychiatrists. The insurer obtained a report of Dr Vickory dated 19 December 2022.
The claimant described having experienced nightmares following the accident. He also described personal worries about missing his friend when she started working and the fact that two of his three stepson had disowned him following the accident.
It is noted the claimant is treated with anti-depressant medication and is undertaking psychological counselling.
Dr Vickory found no apparent psychiatric impairment in the clinical examination.
The claimant’s representatives have obtained a report of Dr Rastogi, psychiatrist, dated 13 October 2022.
Dr Rastogi took a history that the claimant has lost a lot of confidence and self esteem since the accident and has become very avoidant and reclusive. The claimant was described as irritable with little motivation and drive. Further, “he has anhedonia, and feels displaced, empty and numb. He reported poor sleep with intrusive dreams and nightmares.”
The claimant described not enjoying driving and avoiding it at all costs. He gets scared and has lost confidence due to the pain in his wrist.
Dr Rastogi diagnosed him with panic disorder and adjustment disorder with anxious distress. A poor prognosis is given due to partial loss of independence.
The insurer has obtained a report of consultant occupational therapist, Peter Proctor, of Benchmark Rehabilitation, dated 5 September 2022.
Mr Proctor assessed the claimant’s assistance requirements for activities of daily living. A list of equipment was recommended to assist the claimant.
The claimant described intermittent aching pain in the right wrist and mid forearm, aggravated by colder weather. In addition, reduced right hand grip strength and range of motion was reported.
The claimant confirmed that he lived alone in his three bedroom suburban home, however, his close friend (who was controlling the vehicle in the subject accident) does stay with him on occasion.
In terms of activities of daily living the claimant noted that after the accident he eventually regained independence with showering tasks although would normally only shower every second day due to the difficulties with his right wrist. Since April 2022 he has received carer assistance three days per week to help him shower.
In terms of toileting the claimant is independent and utilises his right hand. It is noted that during the assessment the claimant confirmed that he is independent with this, however, he has a lot of difficulty with it owing to his right wrist problems. He noted that sometimes he is not able to clean himself properly after toileting.
The claimant described being also independent with dressing, however, his carers do provide assistance when they are there. He has modified his clothing choices. For example, at the assessment conference he confirmed wearing elastic banded clothing now.
The report describes the claimant having regained his independence with meal preparation, with some difficulty. I note that the claimant gave evidence that he receives meals on wheels assistance and eats take away type meals. He is able to prepare some basic meals, however, not to the standard that he did prior to the accident. He is able to grill meats on his “George Foreman Grill”. He explained that he has a lot of pain in his right wrist pressing down on a knife.
In respect of shopping the report states the claimant regained independence with such task within two months of the accident. However, the claimant gave evidence before me in the assessment conference that he cannot lift any heavy items, and usually has his friend with him to assist. If shopping alone, he often would have his stepson pick him up, who would load the bags from the shopping trolley.
The report details how the claimant has regained ability with cleaning tasks since the accident, however, explained that over the previous two years the ability has deteriorated due to the reduced right hand strength/range of motion, together with the effects of rheumatoid arthritis. He has modified his laundry tasks such that he only uses the dryer now due to difficulty carrying the laundry.

The claimant was noted to no longer mow his lawn, however, did regain the ability for a period after the accident. At the assessment conference the claimant confirmed that he is not able to mow the lawn and conceded he had tried to on occasion but the activity caused pain.
Mr Proctor described the claimant as willingly providing information throughout the assessment and found observations of activities to be consistent with complaint. However, Mr Proctor describes the inability to perform tasks now is impacted moreso by the rheumatoid arthritis than the right wrist injury.

Submissions

The claim is limited to damages for non-economic loss. There is a significant divide between the parties as to a reasonable figure for non-economic loss. In written submissions, the claimant’s representatives put forward a suggested figure of $350,000. The insurer, on the other hand, suggests a reasonable figure is $140,000.
In oral submissions, Ms Dinkha reiterated that the amount of $140,000 was reasonable and $200,000 would be the top of a reasonable range.
In oral submissions both parties referred to case law. Ms Dinkha referred to a number of decisions of Members of the Personal Injury Commission (Commission) in respect of awards for non-economic loss.
I was referred to AAI Limited t/as GIO v Solis [2022] NSWPIC 472 (23 August 2022). The case involved a settlement approval where a 76-year-old female suffered an acute L1 anterior wedge fracture of the lumbar spine and rib fractures. An award for non-economic loss of $150,000 was given by Member Ford. There is limited information as to how the injuries have affected the claimant’s life in that case.
Also referred to was the case of Insurance Australia Limited t/as NRMA Insurance v Lang [2022] NSWPIC 481. Settlement approval was given by Member McTegg for non-economic loss damages in the amount of $200,000. The claimant was an 88-year-old who suffered a lateral tibial plateau fracture along with fractures to the right foot and fractured ribs. In that case the claimant required some level of assistance prior to the accident. After the accident additional assistance was required and eventually moved into care.
The case of AAI Limited trading as GIO v Phillips [2022] NSWPIC 346 was referred to where Member McTegg approved a settlement for non-economic loss damages in the amount of $200,000 after reduction for 10% contributory negligence. The claimant was an 80-year-old who suffered fractured ribs, a degloving injury to the right hand and crushed and broken fingers of the right hand. An amputation of the right middle finger occurred. The claimant suffered from a triangular fibrocartilage complex injury to the right wrist. A psychological injury was also sustained. The claimant remained living independently post accident, however, with numerous difficulties and modifications.
In referring me to the above cases, Ms Dinkha relies upon the case of James Hardie & Coy Pty Limited v Newton (2997) 42 NSWLR 729 (James Hardie v Newton). Since the assessment conference I have received a number of further written submissions regarding this case. At the assessment conference, Ms Dinkha referred me to a passage within the judgment as support for her proposition that I should have regard to previous decisions as guidance for an appropriate amount to award for non-economic loss. Justice Handley stated “…in my opinion justice to litigants requires that awards for similar injuries be broadly comparable.”
As pointed out by the claimant in written submissions following the assessment conference, such comments of Handley JA were in the minority of the judgment.
The claimant’s submissions refer to a passage from the majority judgment where Stein JA (with whom Cole JA agreed) stated at [12]:
“On any approach to the assessment of damages for personal injury, whether or not it is legitimate to look for and apply patterns established by the cases in regard to particular types of injury, attention must always be paid to the individual circumstances of each plaintiff’s case. Injuries of a more or less identical kind although often they will affect plaintiffs in much the same way may also affect different individuals quite differently both in a physical sense and in the impact on family, social, artistic, sporting or other aspects of their lives. Thus, every case must be looked at on the footing that it is, as it in fact is, different from every other case. The difference in the results of similar injuries will be smaller or larger dependent on the Court’s assessment of the effect of the injury on the particular plaintiff.”
I have received numerous communications from the parties following the assessment conference as to whether I am to have regard to previous awards for non-economic loss. The claimant submits that the judgment of Handley JA referred to above does not have application and is not the law as it formed part of the minority judgment, despite Members having regard to it other matters. The insurer submits that the judgment is relevant and consistent with s 4.14 of the Motor Accident Injuries Act 2017 (MAI Act) which provides that the Commission may publish information to assist in the determination of the appropriate level of damages for non-economic loss.
In response, the claimant submits that s 4.14 only refers to information, and such information has not been identified. I agree with this summation.
After consideration of the various cases and the submissions of the party, I conclude that I am not precluded from considering previous awards for non-economic loss in coming to my determination. On my reading, the majority judgment in the case of James Hardie v Newton contains no prohibition on having regard to previous awards. However, I must have regard to the individual circumstances of the matter before me.
I have considered the three cases referred to above involving the approval of awards by Members of the Commission. I have concluded that they are of limited assistance to me in this particular case. In this regard, whilst some of the injuries are broadly comparable, the particular individual circumstances of this case are somewhat unique. In this regard, the claimant suffers from a significant pre-existing incapacity to his left upper limb. As a consequence of such condition, the claimant, being the stalwart individual he is, modified his movements, such that he relied heavily on his right dominant upper limb. He did not cease his extensive and varied activities as a consequence of his left arm and significant rheumatoid arthritis. Instead, he modified his movements such that he became heavily reliant on his right upper limb. As a result of the injuries sustained in the accident, that option is no longer open to the claimant. He has necessarily permanently ceased the majority of the activities that he enjoyed prior to the accident. Those activities, such as machine servicing, mowing and the like provided much enjoyment and fulfilment to the claimant and the absence of same has caused a dramatic degradation of the claimant’s enjoyment of life.
Further, the claimant has suffered a humiliating loss of independence in his activities of daily living. Whilst he still resides alone, he has had to accept carers coming to his home to help him with showering several times a week. I acknowledge that at least temporarily, the rheumatoid arthritis contributed to the need for care. As noted above, the deterioration in the rheumatoid arthritis seems to have now been kept under control. Whilst he is independent with toileting I accept the claimant’s evidence that this task is completed with much difficulty and pain and does not always result in a satisfactory level of hygiene.
I accept the claimant’s evidence that he is now significantly withdrawn from the social life that he enjoyed prior to the accident. He does enjoy some level of social interaction outside of his residence, however, it is much less than what he enjoyed previously.
The claimant has been forced to abandon various hobbies including “tinkering” with machinery and providing assistance to friends with car servicing. He also cannot mow his own lawn. The claimant enjoyed cooking prior to the accident, however, now relies on meal delivery and basic meals that he can prepare himself.
I note the claimant hopes to resume his painting in the future, and is able to carry out shopping, albeit with assistance.
I also accept the claimant has suffered psychological symptoms as a result of the accident, and I note the treatment that he has received. It is entirely consistent with the accident and the physical consequences of his injuries that the claimant would, and continues to suffer from, psychological sequelae as a result of the accident.
Succinctly, the claimant’s injuries are such that his life is dramatically different post accident. Whilst the claimant is not a young man, his life expectancy is such that he still has approximately 14 years ahead where he will endure the impact of the motor accident on almost all facets of his life.
Taking into account all of the above, and noting the claimant suffers from a significant rheumatoid arthritic condition that, whilst apparently well managed, will continue to adversely affect him throughout the rest of his life, I award an amount of $255,000 for non-economic loss.

Costs

The claimant has provided a schedule of costs claimed as part of the hearing bundle. There is no direct response from the insurer.
I award costs in favour of the claimant in the amount of $30,523.90 inclusive of GST.

[2023] NSWPIC 45

7 February 2023