Tunks v CIC Allianz Insurance Limited
[2024] NSWPIC 194
•16 April 2024
| 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 certificate with reasons.
8. Further, the submission suggests the Medical Assessor’s certificate and reasons were wrong in law. The grounds state she conducted her assessment based on objective findings such as a range of movement and muscle guarding rather than pain, weakness, and non-objective matters.
9. In addition to these submissions, the claimant says she has since undergone two surgical procedures and has continued with treatment for a deterioration in her neck, where further surgery has been proposed.
10. The claimant’s solicitor submits they overlooked the certificate which has denied her the opportunity for review of the certificate.
11. The insurer provided a reply to the application opposing the application that the assessment conference be vacated and that I should refer the matter for further assessment.
12. Below are the relevant sections of the Motor Accident Compensation Act 1999 (Act) relating to further medical assessments: -
Referral of matter for further medical assessment
(1)A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part—
(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or
(b) by a court or the President.
(1A)A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.
(1B) Referral of a matter under this section is to be by referral to the President.
13. The claimant’s legal representatives made further oral submissions during the assessment conference, however, no submissions were made to overcome the condition precedent set out in the Act. There was no evidence that the deterioration of additional information is such as to be capable having a material effect on the outcome of the previous assessment.
14. In these circumstances, I dismissed the claimant’s application.
ISSUES AROSE
15. The following issues arose: -
(a)what is the nature and extent of the claimant’s physical and psychological accident-related injuries?
(b)What was the claimant’s pre-accident earnings?
(c)What is the amount for past economic loss and superannuation?
(d)What is the claimant’s entitlement to future economic loss and superannuation?
(e)What treatment has the claimant established is reasonable and necessary?
(f)Is the claimant entitled to gratuitous past domestic assistance and future domestic assistance?
(g)What is the amount for non-economic loss?
What is the nature and extent of the claimant’s physical and psychological accident-related injuries?
16. Mrs Tunks is a 56-year-old married woman. She and her husband have four children, some of whom continue to live with them. Before the accident, she says she was very active and fit. She had a special interest in motor racing which she shared with her family.
17. Post the accident, she has required a hysterectomy and successful treatment for breast cancer.
18. The insurer highlights numerous pre-accident injuries and medical symptoms and refers to clinical notes and records by a workers compensation insurer. They have submitted these records present a prior history of injuries, both physical and psychological which must be considered when assessing damages for this subject accident.
19. Quakers Hill Family Practice clinical notes present a pattern of left shoulder pain in 2009 with limited neck movement. In 2010, she attended the medical practice complaining of pins and needles in her left thumb. That same year she complained of pain in her lumbar region and had tenderness over her T3 -T5 spine. Again, she complained of pins and needles in both hands.
20. In August 2011, she underwent an ultrasound related to supraspinatus tendinosis and had three steroid injections. She complained of neck and shoulder pain and pins and needles in
both hands.
21. Later in 2011 she reported a tight chest and tingling in her left arm and forearm.
22. The medical practice reports lower back pain on 14 May 2012, and she was referred for a CT scan. In June the same year, she complained of numbness in both hands and right shoulder pain.
23. She reported on 15 July 2013 of feeling sudden back pain after pulling a rug with a coffee table on it. On the same day she returned to the practice and complained of pain in both shoulders.
24. On 16 July 2013, Mrs Tunks attended the practice and reported consistent pain and tenderness in her lumbar region. She returned the next day and indicated she was happy to return to work despite continued mild tenderness.
25. Early 2014, Mrs Tunks underwent day surgery to tighten a tendon in her little toe. She attended the medical practice on 24 January 2014 in a boot and reported no restrictions with walking, no pain or swelling.
26. In late February she attended the practice with bruising to her hands and legs, pins and needles in her left hand and chest pain.
27. She was referred for a ultrasound to both her shoulders on 20 May 2014 and thereafter, attended for an ultrasound guided injection for bilateral supra-spinatus tendinosis and sub acromial bursitis.
28. She continued to complain of shoulder pain on 21 July 2014 and muscle cramps in her legs at night.
29. On 31 October 2014 Mrs Tunks attended the medical practice and reported bullying in the workplace. She was upset. She is prescribed Temaze and a work cover certificate was issued.
30. By 3 November 2014, she advised her anxiety had improved and she was sleeping better.
31. On 10 November 2014, she had an X-ray of her thoracic spine.
32. On 8 January 2015, she complained of pain in her right hand and bruising.
33. On 16 January 2015 she advised she could not work because of bruising and pain in her elbow.
34. The ambulance did not attend the scene of the accident. Mrs Tunks says she would have appreciated the support of the ambulance.
35. She says she had to climb out of the passenger’s side door and after she stood up, she felt pain across her lower back which travelled down her right leg. Her husband collected her from the crash scene.
36. The following day she saw her general practitioner, Dr Sujeeva Gunasinghe. The doctor referred her to the emergency department of Blacktown Hospital. The clinical notes from the hospital record CT scans were performed. Mrs Tunks reported pins and needles in her upper arm, neck tenderness, abdominal pain. All scans were normal, and the resident doctor concluded no acute trauma. She was given a medical certificate and discharged into the care of her general practitioner.
37. Dr Gunasinghe wrote a report dated 23 August 2020. She included the dates Mrs Tunks attended her practice for treatment after the crash. The doctor lists her patient’s injuries as pain along her right leg radiating down her right buttock, neck pain and pain in both shoulders and down her right arm. She continues to suffer from neck pain, low back pain, right hip and right lower limb pain, with a sensation of pins and needles in the right side of her face. The doctor found it difficult to prognosticate her injuries at present and diagnosed chronic pain, post-traumatic stress disorder (PTSD), carpal tunnel syndrome on both hands and remarks on the radiology results.
38. Mrs Tunks’ general practitioner referred her to psychiatrist Dr Sajeeva Jayalath for treatment. The doctor diagnosed severe episodes of depression with suicidal ideation with an underlying PTSD.
39. As Mrs Tunks did not respond to medication, Dr Jayalath increased the doses.
40. Spinal surgeon Dr Anil Nair reviewed Mrs Tunks on numerous occasions from January 2017 to July 2020. He diagnosed injuries to her cervical, lumber spine and carpal tunnel. He recommended left carpel tunnel decompression and an anterior lumber inter body fusion and bone grafting.
41. Dr Peter Klug psychiatrist was asked by Mrs Tunks’ solicitor to consult with her and prepare his opinion. His report is dated 12 December 2018. He took and history of her past medical complaints and remarks no prior psychiatric history. The doctor diagnosed chronic PTSD and a chronic major depressive disorder and recurrent panic attacks. He assessed whole person impairment (WPI) of 16%.
42. Dr Klug saw Mrs Tunks again in February 2021. His second report is dated 31 May 2021. Because her condition had deteriorated, Dr Klug recommended treatment in a psychiatric unit and ongoing treatment. He commented on other medical opinion and clinical notes provided. He did not change his first diagnoses.
43. Dr Peter Giblin, orthopaedic surgeon, was engaged by Mrs Tunks solicitor. He listed a history of Mrs Tunks previous history. Based on her history and after examination, the doctor diagnosed soft tissue injury to her cervical spine and right shoulder. He was also of the opinion a soft tissue injury to her low back with referred symptoms to the lower extremities were reasonably casually related to the accident. He assessed a combined WPI of 7%.
44. Neurological surgeon Dr Michael Fearnside was asked by Mrs Tunks’ solicitor to examine her and give his opinion as to her accident-related injuries. His report is dated 23 November 2020. The doctor makes no mention of any pre-accident symptoms. The doctor accepted she sustained injuries to her neck, right shoulder and both hands in the accident. There is no comment on the extent of her injuries. Dr Fearnside assessed a WPI of 27%.
45. Because Mrs Tunks was between work commitments at the time of the accident, she made a claim on her workers compensation insurer (W/C insurer). The W/C insurer requested Dr Yuk Kai Lee to see the claimant on 3 May 2021. The doctor did not have a complete past medical history. The doctor diagnosed neck, right shoulder and both hands and her back injuries caused in the accident.
46. Orthopaedic specialist Dr Sheikh Habib prepared a report after seeing Mrs Tunks at the request of her solicitor on 7 June 2021. He only had documentation post-accident. The doctor lists her injuries as a result of the accident as cervical discopathy with right radiculopathy, rotator cuff tendinopathy with impingement of the right shoulder, bilateral carpal tunnel syndrome and lumber discopathy L5/S1 with radiculopathy. He assessed WPI of 39%.
47. Mrs Tunks has undergone a number of medical assessments in the Personal Injury Commission (Commission). Medical Assessor Home issued a certificate on 21 July 2022 and concluded injuries to Mrs Tunks cervical and lumber spine and right shoulder caused by the accident give rise to a permanent impairment of 33% and is greater than 10%.
48. The insurer sought to have this assessment reviewed on the basis that it was incorrect in a material respect. The review was unsuccessful and was not referred to a review panel.
49. Medical Assessor Paisley issued a certificate dated 18 October 2021 which diagnosed a PTSD and Major Depression Disorder caused by the accident which gives rise to a permanent impairment of 8% which is not greater than 10%.
50. The W/C insurer and the insurer also engaged a number of medico-legal reports which include Doctors Sam Perla, Anthony Smith, Michael Coroneos, Seamus Dalton, Professor Miniter and a vocational capacity assessment.
51. Occupational physician Dr Perla examined Mrs Tunks on 15 June 2017. She told the doctor she had been treated for a blood disorder many years ago which no longer required treatment. She mentioned shoulder symptoms but otherwise, had no particular pre-accident medical history.
52. After reviewing radiology and carrying out a clinical examination, Dr Perla concluded that Mrs Tunks presents with chronic non-specific mechanical neck pain and lumber pain. He found no evidence of radiculopathy. She also presented with rotator cuff dysfunction of her right shoulder.
53. The doctor saw her again in July 2017 after Mrs Tunks had undergone a lower lumbar discogram. He was asked to comment on her work capacity and the need for further treatment.
54. Orthopaedic surgeon Dr Smith saw Mrs Tunks in August 2017. He was satisfied she primarily had neck pain after the accident, upper limb symptoms with low back pain. He noted her symptoms increased after jury duty and a trip overseas. Apart from degenerative disease, Dr Smith could not find anything wrong with Mrs Tunks on her clinical examination.
He suggested she was exaggerating her symptoms.
55. In November the same year, Dr Smith was asked to comment about Mrs Tunks symptoms considering her pre-accident medical history. He opined it was likely problems in her neck and low back occurred due to degenerative disease over the years prior to the accident. He further commented she is inconsistent with in his examination of her lumber spine and manufactured weakness in the right lower limb movements. He felt there was no objective evidence of impairment regarding her right shoulder and arm.
56. Dr Smith did acknowledge Mrs Tunks could have had an exacerbation to her cervical and/or lumbar degenerative disease.
57. Consultant neurosurgeon Dr Coroneos saw Mrs Tunks on 4 October 2017. He mentions a relatively insignificant pre-accident medical history. The doctor directly asked her if she had
any prior neck, back, spine, head symptoms and she reported no but advised she had a right shoulder injection about two years ago. After reviewing documentation provided to the doctor and carrying out an examination, Dr Coroneos was unable to relate the symptoms and reported disabilities to be neurosurgical caused by the accident.
58. Dr Dalton, sports physician provided the insurer with his medico-legal opinion on 5 January
2018. He diagnosed soft tissue injury to Mrs Tunks’ cervical spine with no indication that she suffered a significant injury to her right shoulder or lumber spine but over time, she developed symptoms which he described as a mechanical low back injury. He felt the results of radiological investigations was almost certainly pre-existing and consistent with her age and not causally related to the accident.
59. Dr Dalton also commented on the report by Dr Giblin and disagreed with his findings and opinion.
60. The insurer asked Dr Dalton to reexamine Mrs Tunks on 28 September 2020. She updated the doctor on treatments and surgeries she had undergone since her previous consultation.
After carrying out a physical examination Dr Dalton viewed Mrs Tunks’ presentation as being quite pain avoidant and guarded but she did display less pain behaviour than previously. The doctor reviewed the updated medical reports and certificates and continued to stand by his initial opinion. He says that after careful review of the contemporaneous medical records from the time of the accident, he does not seek to alter his opinion regarding the nature and extent of the injuries suffered by Mrs Tunks in the accident. He felt her treatment and surgery were not reasonable nor necessary and not related to the accident.
61. On 1 March 2021, Dr Dalton was provided with the report and assessment of WPI by A/Prof Fearnside. He believed the A/Prof did not adequately consider all the relevant clinical information, in particular her pain behaviours. He concludes the need for surgery was not casually related to the accident and as such cannot be included in a WPI assessment.
62. A/Prof Miniter interviewed the claimant for the W/C insurer in February 2022. The orthopaedic surgeon noted Mrs Tunks was struggling psychologically and presented to him as a distressed lady.
63. On examination, the A/Prof was unable to identify a diagnosis as he could see no evidence of trauma to her C5/6. He could not explain the methodology by which a fusion had taken place. He says there was no evidence of lumber spine injury. He identified any shoulder symptoms are pre-existing. He found it impossible to identify the pathology on the scans to any trauma. In assessing WPI, the A/Prof mentioned the anterior cervical fusion which
equates to a 25% WPI. His second report related to domestic assistance.
64. After teasing out the various opinions of the treating and expert doctors, it is evident the diagnosis and prognosis are difficult to reconcile. The W/C doctors contemporaneous to the accident accept the reported symptoms and recommend invasive and passive treatments. A number of treatment certificates were issued by the Commission, some of which, were the subject of reviews.
65. The insurer’s expert opinions are at odds with Mrs Tunks experts and treating doctors’ conclusions, suggesting Mrs Tunks presents with illness behaviours, subjective complaints which they attribute to degenerative pathologies not causally related to the accident. As articulated by Dr Dalton, these opinions suggest there is a significant degree of psychological overlay.
66. It is for these reasons, I prefer to accept the opinions and assessments by the independent medical assessors. The most significant assessment is that of Dr Home dated 21 July 2022. The dispute Dr Home was asked to assess was the degree of impairment and whether treatment provided or to be provided was reasonable and necessary.
67. The claimant submitted to the medical assessor that there was no prior medical history of cervical or lumber impairments with the exception of a single chest compliant with pain radiating down her back and complaints of right shoulder pain.
68. The insurer set out her pre-accident medical history from Quakers Hill Family Practice detailing presentations of left and right shoulder pain, lower back and neck complaints as far back as 2010. The medical assessor was provided with all the reports summarized above. Dr Home carried out a clinical examination and commented Mrs Tunks presentation was consistent.
69. Under the heading diagnosis and causation, the medical assessor reported on her symptoms post-accident and notes, although there is a prior history of pain, there are no episodes of persisting pain in any of the regions of her reported injuries.
70. Dr Home was satisfied Mrs Tunks sustained injuries which aggravated underlying and degenerative change to her cervical and lumbar spine, and right shoulder. He describes the mechanism of the accident was sufficient to cause aggravation of her underlying degenerative changes.
71. Based on the findings made by Dr Home, I accept the nature of Mrs Tunks accident-related injuries include neck, low back, and right shoulder. As a result of these injuries, she has developed psychological injuries which are diagnosed by Medical Assessor Paisley as a Post-traumatic stress disorder caused by the accident.
72. The extent of her injuries is set out in histories given to her doctors and in her statements. These include constant pain since the accident (statement dated 29 April 2020), flashbacks, anxiety, nightmares, severe headaches, suicidal tendencies, and loss of independence.
What was the claimant’s pre-accident earnings?
73. Mrs Tunks was working in aged care at the time of the accident. Her employer was Wesley Mission. She commenced part-time employment with the mission in April 2013 as a home and community worker. She told me she also did private cleaning.
74. During 2014, she completed a Certificate IV in Aged Care and Disability Care and an assistant in nursing.
75. A dispute arose between the claimant and the insurer as to what her pre-accident weekly earnings were at the time of this accident.
76. At the assessment conference, Mrs Tunks told me, the financial year before the accident she had been on a number of holidays which may explain why her hours were less than what she said she had worked the year before the accident. She said she was paid $1,498 per fortnight plus she said she worked a second job.
77. Mr Guihot suggested to Mrs Tunks her statement states, before the accident, she was working 35-40 hours a week was not true. In fact, he pointed out the records show she was working an average of 26 hours a week. Mrs Tunks again explained after taking holidays, she would return to work with clients who may have been moved to an alternate carer. It took time to rebuild her client base.
78. After the accident, she says she was unable to work until September 2016. She returned to light duties making up folders and some administrative duties for two hours a day, one day a week. Her hours increased to three hours a day, two days a week and then to three hours a day for three days a week by 2019.
79. In submissions, the claimant has calculated her loss as $1,300 net per week. The insurer extracted the net earnings from the year prior to the accident which is $556.81 but increased the amount to $600 net per week in their final schedule.
80. I prefer to adopt an average approach to the amount of Mrs Tunk’s pre-accident earnings. For the three years she worked at the mission, her average net weekly earnings were $593,
close to the figure submitted by the insurer. I have been unable to identify any evidence to support her claim she was earning $1,300 net per week at the time of the accident.
81. The second issue to address in assessing past economic loss is total incapacity, partial incapacity, and unrelated incapacity. The claimant has calculated 7.33 years as the number of weeks of total incapacity, ignoring the periods Mrs Tunks worked from September 2016 to April 2021.
82. The insurer rejects any claim made for the weeks she underwent unrelated surgery and /or treatment. I disagree that these periods are not compensable. If the claimant had not been injured, she may have been entitled to access sick, holiday, or other leave.
83. The approach to past economic loss I accept as a reasonable calculation is to assess the number of weeks from the accident to the assessment hearing, then deduct the weeks she had a residual earning capacity at a reduce amount during these weeks.
What is the amount for past economic loss and superannuation?
84. In submissions, the claimant seeks $495,508 for past economic loss based on weekly earnings of $1,300 net per week plus loss of past superannuation of $54,506.
85. The insurer relies on her taxation returns which reveals a weekly net income in 2014 of $327, 2015 of $894.55 and 2016 of $556.81. They have adopted the last taxation year and calculate Mrs Tunks entitlement to past economic loss is limited to $113,100 and past superannuation amounting to $12,441.
86. The approach to past economic loss I accept as a reasonable calculation is to assess the number of weeks from the accident to the assessment hearing, then deduct the weeks she had a residual earning capacity at a reduce amount during these weeks.
87. The number of residual earning weeks from September 2016 to 21 April 2021 is 241 weeks, at a 50% reduced rate of $300 net per week. The number of weeks from the date of accident to the date of the hearing is 401. The total incapacity is for 160 weeks at $593 amounts to
$94,880. The residual earning capacity is for 241 weeks at $296.50 amounts to $71,456.50.
The total amount for past economic loss is $166,336.50.
88. The loss of superannuation is $18,297 and Fox v Wood which was not claimed by the claimant but acknowledged in the insurer’s submissions is $16,918.40.
What is the claimant’s entitlement to future economic loss and superannuation?
89. The claimant has submitted her future economic loss is to be dealt with as a loss of earnings to age 67 years at an increased rate of $1,500 per week plus a buffer for loss of opportunity in the sum of $250.000. The multiplier put forward by the claimant is 12 years (473.9 multiplier).
90. There is no evidence to support the amount claimed. I have no comparable evidence. Likewise, there is no evidence the claimant has lost any opportunity due to her accidentrelated injuries.
91. I do not accept the claimant has established an entitlement to future economic loss as submitted.
92. The insurer arranged for Mrs Tunks to undergo a vocational capacity assessment. This report suggested Mrs Tunks should undergo a multidisciplinary pain management program.
93. After carrying out a lengthy physical assessment, the operator commented that Mrs Tunks presented as having hypervigilant symptoms with overt pain behaviour.
94. Job capabilities were considered which included sales assistant, diversional therapist’s assistant, receptionist, clerk, and sales demonstrator.
95. Based on the evidence Mrs Tunks gave at the assessment conference and descriptions in her statements of her chronic pain, plus the restrictions placed on her by her medical legal experts, it is unlikely she would be capable of undertaking these positions. Also, her age is relevant.
96. The insurer agrees any calculation should be assessed to age 67 years. They say this multiplier is for 11 years, 462.2. The amount submitted is $117,861 adopting $300 per week.
97. Neither party applied the most likely future circumstance but for the accident test.
98. Had the claimant not been injured, the most likely future circumstance but for the accident is she would have continued to work in aged care to age 67 years. She said she love this line of work.
99. The future economic loss can be calculated at the rate of $593 per week. The claimant has 11 years of future working years. The multiplier is 462.2 and 15% vicissitudes apply. The insurer submitted this percentage should be increased having regard to her pre-accident medical symptoms and unrelated medical complaints. I disagree considering the conclusions reached by Medical Assessor Home.
100. The amount for future economic loss is $232,972.
101. Mrs Tunks is entitled to future superannuation at the rate of 13% which amounts to $30,286.
What treatment has the claimant established is reasonable and necessary?
102. The parties advised me that the past treatment expenses have been agreed in the sum of $350,000 plus an agreed sum for past care of $13,187. The total agreement for past treatment expenses is $363,187.
103. The claimant has nominated $200,000 as a reasonable claim for future out of pocket expenses. This claim is not supported by any particulars setting out what the $200,000 represents. It appears to be a random amount claimed rather than a detailed submission addressing what treatment she says is reasonable and necessary and referencing this claim to the medical evidence.
104. The insurer agrees the claimant has established a need for future treatment and submits the amount is $18,042.80.
105. This figure is arrived at by review of the Commission’s certificates which include treatment for yearly general practitioner consultations, psychologist and psychiatrist consultations, medications, and a pain management program.
106. After costing these treatments, the amount of $18,042.80 is the only assistance I have been provided to assess the amount for future reasonable and necessary treatment expenses. I am satisfied $18,042.80 is a fair and reasonable assessment for future reasonable and necessary treatment expenses.
Is the claimant entitled to past gratuitous past domestic assistance and future domestic assistance?
107. The claimant is seeking $228,696 for past gratuitous domestic assistance.
108. I am bound by the limitations on the number of hours for a continuous period for gratuitous domestic assistance, see s 141B(c) of the Act.
109. The certificate of Medical Assessor Wise does not assess the need for domestic assistance for six or more hours per week. The certificate does not meet the threshold test. Medical Assessor Wise’s certificate is conclusive evidence as to the matters certified therein.
110. The claim for gratuitous domestic care must fail.
111. The claimant seeks $340,039 for future domestic assistance. Separate submissions have been relied upon addressing Mrs Tunks’ entitlement to future domestic assistance. The submission criticises the certificate by Medical Assessor Wise dates 3 January 2023.
112. Her findings are described as ‘ridiculous’. The claimant says Ms Wise proceeded with her assessment under a misapprehension that she could only consider the same matters as required to assess WPI.
113. I appreciate the claimant’s frustration. However, I am bound by the certificate of Ms Wise which concluded Mrs Tunks’ need for domestic assistance was limited to 18.6 minutes per week. This can only be assessed as care on a commercially paid basis.
114. The insurer has adopted the current rate of $30 per hour which equates to approximately $10 per week. Applying the 855.7 multiplier and 0.85 vicissitudes, the amount they allow for future paid domestic assistance is $7,500.
115. Accepting the certificate is binding, I am persuaded that the insurer’s submission is a reasonable approach to the calculation. I assess future commercial care in the sum of $7,500.
What is the amount for non-economic loss?
116. By virtue of s 131 of the Act, Mrs Tunks is entitled to damages for non-economic loss. S 134 prescribes a maximum that I may award for non-economic loss. S 3 relevantly defines noneconomic loss to mean: -
(a) pain and suffering, and
(b) loss of amenities of life, and (c) loss of expectation of life, and (d) disfigurement.
117. The question for me becomes what assessment should be made for this claimant’s entitlement to general damages having regard to the particular circumstances of this case.
118. Damages are assessed with the application of common law principles up to the maximum provided for in s 134 of the Act. This was explained by Heyden JA in Hodgson v Crane (2002) 55NSWLR 199 when he said it is not possible to construe the concept of proportionality out of the language of ss 131-134 of the Act. When the threshold of 10% of WPI was passed, the court was required to assess non-economic loss without statutory
restraint except for the maximum that may be awarded.
119. According to the authority in Dell v Dalton (1991) 23NSWLR 528, the court determined that the assessment of non-economic loss involved “…questions of fact and degree, and matters of opinion, impression, speculation and estimations, calling for the exercise of common sense and judgment.”
120. Assessment of permanent impairment disputes were referred to Medical Assessor Home along with treatment disputes. After review of the large volume of medical records provided to the assessor by both the claimant and insurer, he concluded, although Mrs Tunks’ underlying pathologies represent a vulnerability to injury, this was not based on the history he reviewed of her medical records symptomatic in the period before this accident. He found the spinal surgery was casually related to the accident.
121. The assessor was satisfied that the WPI of her cervical spine was 25%, Lumber spine 5%, right shoulder 5%, the combined assessment being 33% WPI.
122. The claimant submits the amount for general damages is $500,000. The insurer submits the amount should be $250,000.
123. The claimant complains of chronic pain and suffering. She sustained loss of amenities of life including the loss of her employment which she enjoyed, loss of her love of motor racing, the need for surgery and treatment. She has disfigurement caused by the need for surgery.
124. She has developed severe psychological symptoms which include anxiety, depression, and flashbacks.
125. Considering her age and applying common sense, the appropriate amount for non-economic loss in $300,000.
SUMMARY
126. The summary of damages are as follows: -
(a) Past economic loss 166,336.50 (b) Past superannuation 18,297.00 (c) Fox v Wood 16,918.40 (d) Future economic loss 232,972.00 (e) Future superannuation 30,286.00 (f)Future domestic paid care 7,500.00
(g)Past treatment expenses 363,187.00
(h)Future treatment expenses 18,042.80
(i)Non-economic loss 300,000.00
(j)Total $1,153.539.70
COSTS AND DISBURSEMENTS
127. The claimant has provided a schedule of costs and disbursements.
128. The insurer has issued a reply.
129. I will address each claim separately to avoid confusion which is as follows: -
(a)stage 2 and 3 agreed,
(b)medical disputes agreed,
(c)representation of the Commission agreed,
(d)10 hours conferences rejected, suggested 4 hours, I agree but allow 6 hours as reasonable,
(e)Dr Gunasinghe 11/9/2020 agreed,
(f)Dr Nair 14/8/2020 dispute as no invoice, insurer allowed without consultation, I agree and allow $290,
(g)Dr Giblin, Dr Fearnside, Dr Klug x 2 agreed,
(h)Ms Eloff 14/12/2023 not allowed as report no part of the assessment due to the binding certificate of Ms Wise,
(i)Dr Nair, Dr Dowla, Donna Theeyat and Quakers Hill Physiotherapy clinical notes not allowed where no invoices have been submitted,
(j)Dr Nair 28/4/2017, Dr Rizkallah 29/6/2021, Dr Dowla 27/4/2017 clinical notes agreed,
(k)St Vincent clinical notes agreed and travel.
130. The costs and disbursements are contained in the Costs Calculator.
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