Transport Accident Commission v Jantschulev
[2025] NSWPIC 240
•2 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Transport Accident Commission v Jantschulev [2025] NSWPIC 240 |
| CLAIMANT: | Jana Jantschulev |
| INSURER: | Transport Accident Commission |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 2 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages; where settlement approval by the Commission is required; claimant is legally unrepresented; section 6.23; high speed head on collision; whiplash injury; mild to moderate traumatic brain injury with post-injury confusion lasting at least five to seven days; soft tissue injuries to right hip and right shoulder; post-traumatic stress disorder; where claimant refuses to submit herself to medical assessments by the Commission; no entitlement to damages for non-economic loss; approval sought for proposed settlement in the sum of $200,000 for damages for past and future economic loss; Held – proposed settlement approved under section 6.23(2)(b); there are no deductions to be made by the insurer from the proposed settlement for any other matters. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement sum of $200,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The Personal Injury Commission notes that there are no deductions to be made by the insurer from the settlement sum for any other matters. A statement setting out my reasons for the determination is attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 26 December 2020, the claimant, Jana Jantschulev, suffered injuries in a motor accident when the vehicle in which she was travelling as a front seat passenger was hit by the insured vehicle that was travelling in the opposite direction and crossing to the wrong side of the road.
The claimant has made a claim with the insurer for common law damages for the injuries she sustained in the accident. The insurer admitted liability for the claim with no allegation of contributory negligence.
The parties have agreed to a settlement of the claim.
The claimant is self-represented. Section 6.23(2) of the Motor Accident Injuries Act 2017 (MAI Act) requires that any settlement of a claim for damages by a claimant who is self-represented, be approved by Personal Injury Commission (Commission). Accordingly, on
20 February 2025, the insurer lodged an application with the Commission to have the settlement approved.The matter was referred to me to consider the approval.
Following discussions with the parties at a teleconference held on 18 March 2025, the insurer made a revised offer of settlement in the sum of $200,000 which was accepted by the claimant. This is the proposed settlement which is now considered for approval.
SUMMARY OF THE EVIDENCE
The claimant was 50 years old at the time of the motor accident and is now 55.
The claimant was transported by ambulance from the scene of the accident to Lismore Base Hospital.
At the hospital, the claimant complained of pain in the chest wall, sternum, and right ribs, shoulders and right hip. On examination, it was noted she had tenderness at the C1/2 and
T7 -10 spines. She was able to move her neck. There was no back pain. It was determined on the Glasgow Coma Scale (GCS) that she had a score of 15.A CT of the cervical spine was performed. Discovertebral degenerative changes were noted with low grade posterior disc bulges at C3/4, C4/5, C5/6, and C6/7. A CT of the brain was also performed and was found to be normal. A CT of the abdomen and the pelvis also showed no abnormality.
The claimant was discharged on 27 December 2020.
In her application for personal injury benefits, dated 14 January 2021, the claimant described her injuries in the following terms:
“Chest pain, difficulties breathing, misalignment of body, muscle and back and neck pain, stiffness, headaches, massive sleep deprivation due to trauma, disruptive sleep pattern ever since, word finding issues and partial confusion, so far unable to resume teaching activities, general anxiety and high level anxiety in a car, no noise tolerance.”
On 8 January 2021, the claimant began treatment with rehabilitation physician, Dr Ulla Gerich-McGregor.
The claimant’s symptoms included ongoing headaches, confusion, fatigue, forgetfulness, a lack of emotional control and difficulty concentrating. Dr Gerich-McGregor was of the view that a CT scan does not exclude a traumatic brain injury (TBI), and she diagnosed a mild to moderate TBI with post-injury confusion of at least five to seven days. Dr Gerich McGregor also diagnosed post-traumatic stress disorder (PTSD) with unusual and severe anxiety and a whiplash injury.
On 4 March 2021, Dr Gerich-McGregor reviewed the claimant, noting that the TBI symptoms had not resolved. At that time, the post-traumatic stress disorder had mildly improved with the associated anxiety having shifted in focus and reduced in severity. The claimant had ongoing pain from her whiplash injury. Dr Gerich-McGregor recommended that the claimant see a neuropsychologist, a remedial massage therapist and acupuncturist, and that she continues treatment with her psychologist and physiotherapist.
On 30 April 2021, the claimant was assessed by clinical neuropsychologist, Aimee Jeffreys with a follow up assessment on 13 May 2021.
On 14 May 202, Dr Gerich-McGregor reviewed the claimant. It was noted that she had a good ability to monitor her TBI symptoms although she had ongoing sleep problems and was still taking CalmX.
In her report dated 11 June 2021, Ms Jeffreys describes the claimant’s neuropsychological profile to be characterised by mild attention and working memory issues together with a subtle word finding difficulty against a background of otherwise excellent memory and intact general cognition.
On 15 October 2024, the claimant was assessed by psychiatrist, Dr Melissa Barrett. She provided a report on 15 October 2024.
Dr Barrett noted that the claimant reported that in the accident, she sustained a whiplash injury, an injury to her pelvis and an injury to her right shoulder. The claimant reported ongoing pain in her pelvis and right shoulder which impacted her strength and ranged movement. She cannot perform heavy tasks such as gardening and could no longer go hiking. She is able to sleep. She is not using analgesics because she is “100% organic”. She reported benefits from weekly Pilates.
With respect to the claimant’s psychiatric injury, Dr Barrett noted that the claimant described dissociative symptoms beginning at the time of the accident, and subsequently symptoms of posttraumatic stress disorder, re-experiencing symptoms in the form of nightmares and intrusive memories, avoidance symptoms, initially avoiding driving and continuing to avoid some social interaction, negative affect and mood, negative affect and cognition and sustained hypervigilance and anxiety.
Dr Barrett noted that the claimant does not want psychotropic medication and that she was reluctant to use melatonin regularly. She had a brief period of psychological treatment in 2021, but she did not develop a good rapport with the psychologist.
Dr Barrett’s diagnosis was post-traumatic stress disorder - chronic, caused by the motor accident. Dr Barrett assessed the claimant’s psychiatric injury as giving rise to a permanent impairment of 7%.
INSURER’S SUBMISSIONS
The insurer informed the Commission that the claimant was examined for her physical injuries by orthopaedic surgeon, Dr Tom Sheehan. Dr Sheehan found that the claimant’s neck injuries gave rise to a permanent impairment of 5%. However, because the claimant had made a complaint about the conduct of Dr Sheehan, an agreement was made not to rely upon his report. Hence, his report is not before the Commission.
The insurer submitted that the claimant has declined to be examined by another
medico-legal consultant or to submit herself to a medical assessment by the Commission. The insurer indicated that it has been explained to the claimant that in the circumstances of the available evidence, she would have no entitlement to damages for non-economic loss.The insurer submitted that it has recommended to the claimant that she seek legal representation, but the claimant has advised that she does not wish to do so and instead requested that the (initial) offer settlement of $100,000 be submitted to the Commission for approval.
CONSIDERATION
In conformity with s 6.23(3) of the MAI Act, before I approve the proposed settlement, I must be satisfied that the settlement complies with the applicable requirements of the MAI Act and the Motor Accident Guidelines (the Guidelines).[1]
[1] The reference is to Version 9.3.
The claimant’s understanding of the proposed settlement
According to cls 7.37 (c) and (d) of the Guidelines, I must be satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner and understands the nature and effect of the proposed settlement and is willing to accept it.
On 18 March 2025, I conducted a teleconference with the parties to discuss these matters the claimant.
I explained (at length) to the claimant, that if both her physical injuries and psychiatric injury were to be assessed independently through medical assessments conducted by the Commission, there is a possibility that one or both such medical assessments may result in a finding that her injuries attracted a degree of permanent impairment that is greater than 10%. I explained to the claimant if that occurs, she would be entitled to a substantial amount of damages for non-economic loss which are primarily, damages for her pain and suffering.
The claimant’s repeated response was that she acknowledged and understood that this might be the case given her past suffering and significant changes in her life after the accident. However, she indicated that any further medical assessments would create more mental trauma for her. She indicated that she is not pursuing the highest possible financial outcome from the claim and that her priority is to settle this matter and to continue her endeavours to transition back to her pre-accident life as soon as possible through natural healing and using natural therapies.
I explained to the claimant that she is entitled to obtain independent legal advice about her rights and entitlements in relation to her claim and in particular, her right to pursue a claim for damages for non-economic loss. I recommended to the claimant that that she seek legal representation.
The claimant responded that she is aware that she is entitled to be represented by a lawyer with respect to her claim, but she has chosen not to do so. Her husband and her son, who were also injured in the accident, are both legally represented but her decision is that she does not wish to be legally represented.
Having had those lengthy discussions with the claimant and noting her responses, I formed the view that if the claimant’s matter were to be listed before a member of the Commission for hearing of the claim on a legally unrepresented basis, the available evidence in relation to permanent impairment would remain the same and that the claimant would have no entitlement to damages for non-economic loss.
Next, I discussed with the parties the initial offer of $100,000 that was made by the insurer for past and future economic loss. I indicated to the insurer that based on the available evidence, that offer, in my view, was inadequate. I indicated to the parties that I would be minded approving the sum of $200,000 for those heads of damage. The insurer later obtained instructions and made a revised offer of $200,000. This was accepted by the claimant as the proposed settlement.
I explained to the claimant that because she has sustained a non-threshold injury, she is entitled to claim reasonable and necessary treatment and care expenses for life. I explained to the claimant that these claims will be managed by the insurer until 26 December 2025 and thereafter, by the Lifetime Care and Support Authority. The treatment and care benefits include costs such as any further dental treatment, medical treatment, medication, home assistance such as lawnmowing and future surgery.
I am satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner, but she has chosen not to do so.
I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making any further claim for damages arising from the motor accident.
I am satisfied that the claimant understands that following the settlement of her claim for damages, she has ongoing rights to claim future treatment and care.
I am satisfied that the claimant is willing to accept the proposed settlement.
Is the proposed settlement just, fair and reasonable?
According to cl 7.37 (b) of the Guidelines, before I approve the proposed settlement under s 6.23(3) of the MAI Act, I must be satisfied that it is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
The proposed settlement of $200,000 represents damages for the following:
(a) $100,000 for past economic loss, and
(b) a buffer of $100,000 for future economic loss.
Past and future economic loss
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, according 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.
The claimant is a qualified high school language teacher. At the time of the accident, she was not in paid employment and was home schooling her son for the school year 2020. The claimant said that prior to 2020, she was working on a part-time contract and that her annual income was $20,842 per annum. However, I note that her income tax returns show that her annual net income for the financial year ending 30 June 2019 was about $14,000 and for 2018, about $20,000.
But for the accident, the claimant said that she would have returned to her employment as an high school teacher in January 2021.
The insurer has made an allowance of $100,000 for past economic loss. Considering the available evidence, I am satisfied that this allowance is adequate to cover the claimant’s losses for the past four and half years including superannuation, from the date of the accident to date.
The insurer has made an allowance of $100,000 by way of a buffer for future economic loss.
The claimant indicated that upon her return to teaching, she had intended to increase her hours once her youngest son reached the upper primary school stage. I note that her son was 12 years of age when she saw Dr Barrett in October 2024. He would have now completed his primary schooling.
The claimant’s remaining working life is about 11 years until age 67. I consider that the allowance of $100,000 would be an adequate sum to cater for any further periods of absence from her employment and/or the need to continue part-time working hours until a full recovery from her injuries.
Based on the evidence before me, I am satisfied that the sum of $200,000 is an appropriate allowance for past and future economic loss, including loss of superannuation.
CONCLUSION
Having regard to all the above matters, I am satisfied on the available evidence, that the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, the disabilities and the impairments sustained by the claimant.
The proposed settlement of the claimant’s claim for damages in the sum of $200,000 is approved under sub-s 6.23(2)(b) of the MAI Act.
I note the insurer’s advice that there were no weekly payments of statutory benefits paid to the claimant. There is therefore no deduction to be made by the insurer from the proposed settlement sum pursuant to sub-s 3.40(1)(b) of the MAI Act.
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