Tunks v CIC Allianz Insurance Limited - [2024] NSWPIC 194

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tunks v CIC Allianz Insurance Limited [2024] NSWPIC 194
CLAIMANT:	Kerry Leanne Tunks
INSURER:	CIC Allianz Insurance Limited
MEMBER:	Elyse White
DATE OF DECISION:	16 April 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of damages; liability wholly admitted; claimant had a lengthy pre-accident medical history; claimant assessed whole person impairment greater than 10% by Medical Assessor (MA) Home; claimant a health care worker; returned to work in a reduced capacity until terminated; past and future economic loss assessed; a binding certificate by MA Wise did not exceed the threshold test; limited entitlement to domestic assistance; past treatment expenses agreed as $363,187.00 plus a buffer for future reasonable and necessary treatment for accident related injuries; Held – damages assessed at $1,153,539.70 plus costs and disbursements in the sum of $78,204.63.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 94 and s 94A of the Motor Accident Compensation Act 1999 Assessment of the claim for damages made in accordance with s 94 of the Act in the sum of $1,153,539.70 plus costs and disbursements in the sum of $78,204.63. The insurer is to receive a credit for any s 83 treatment expenses.

STATEMENT OF REASONS
INTRODUCTION
1.     The claimant, Mrs Kerry Tunks was involved in an accident on 14 June 2016. She was driving on James Ruse Drive towards Pennant Hills Road in the left lane when there was a sudden impact from behind. She heard a huge bang and the steering wheel jerked violently before her right shoulder was thrown into the driver’s side door. She saw a large truck had caused the collision which spun her vehicle into the breakdown lane over a distance of around 100 metres.
2.     As a result of injuries sustained in the accident, Mrs Tunks has made a claim for damages against the insurer, CIC Allianz Insurance Limited (insurer).
3.     The insurer wholly admitted liability for the accident.
4.     At the time of the accident, the claimant was working. She made a claim against her employer’s workers compensation insurer. This insurer paid for treatment and wages.
CLAIMANT’S APPLICATION TO REFER FOR FURTHER ASSESSMENT
5.     The insurer referred a treatment dispute to the Personal Injury Commission (Commission) in 2022. A certificate with reasons was issued by Medical Assessor Wise on 3 January 2023 which was sent to both the claimant and the insurer.
6.     On 26 February 2024, the claimant’s legal representative made a written application to me for an adjournment. The application states “The claimant wishes to proceed with a further medical assessment of a treatment dispute relating to her need for domestic assistance and care”.
7.     The application acknowledges the claimant is bound by Medical Assessor Wise’s Certificate    dated 3 January 2023. She lists the huge volume of material available to Assessor Wise numbered a) to jj). In paragraph 4 of the submission, the claimant lists further information a) to j) as additional relevant material which was not available when the Medical Assessor issued her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 194
Decision Date: 16 April 2024

CaseChat Overview and Summary

In Tunks v CIC Allianz Insurance Limited, the plaintiff, Ms Tunks, sought compensation for injuries sustained in a motor accident. The defendant, CIC Allianz Insurance Limited, admitted liability for the accident. The dispute centred around the assessment of damages, including whole person impairment, economic loss, domestic assistance, and past treatment expenses. The matter was heard and determined in the District Court of New South Wales.

The court had to determine the appropriate amount of damages to be awarded, considering Ms Tunks' pre-accident medical history, her return to work in a reduced capacity, and the binding certificate issued by a Medical Assessor. A key issue was whether the binding certificate, which did not exceed the threshold test, impacted the assessment of domestic assistance. The court also had to assess the past and future economic loss and the reasonable and necessary treatment expenses related to the accident.

In delivering the judgment, the court found that Ms Tunks' whole person impairment was greater than 10% and considered her pre-existing medical conditions and return to work. The court concluded that Ms Tunks was entitled to limited domestic assistance and assessed her past and future economic loss. The court determined that the binding certificate did not preclude entitlement to domestic assistance and awarded past treatment expenses of $363,187.00 plus a buffer for future reasonable and necessary treatment. The total damages assessed were $1,153,539.70, with costs and disbursements amounting to $78,204.63.

The court ordered CIC Allianz Insurance Limited to pay the total damages and costs to Ms Tunks. The judgment provided a comprehensive assessment of the various elements of compensation, taking into account the complexities of Ms Tunks' case.

Orders