White v AAI Limited t/as GIO
[2021] NSWPIC 449
•5 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | White v AAI Limited t/as GIO [2021] NSWPIC 449 |
| CLAIMANT: | Emily White |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 5 November 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Head-on high speed collision; claimant 21 years old at date of accident; 24 years old at date of assessment; hospitalised for 23 days post-accident; life expectancy 62 years; significant injuries: T1 – T3 compression fractures L2 fracture; L3 burst fracture with 40% loss of height; right femoral mid-shaft transverse fracture; right 10-11 ribs fractures; small bowel perforation; Grade 1 liver laceration; psychological injury; abdominal scaring; Held - non-economic loss assessed at $360,000; past economic loss agreed; buffer of $275,000 for future economic loss; damages of $10,000 for travel costs allowed under section 4.5(1)(b) of the Motor Accident Injuries Act 2017; allowance reflects the increased cost of business class airfare for travel to Europe. |
| DETERMINATIONS MADE: | 1. Under sub-sections 7.36(3) and 7.36(4) of the Motor Accident Injuries Act2017 (the MAI Act), I specify the amount of damages for this claim as $689,747.78. 2. The claimant’s costs are payable by the insurer in accordance with the MAI Act and Regulations. 3. Attached to this certificate are reasons for my assessment. |
Reasons for Decision
Issued under section 7.36(1) of the Motor Accident Injuries Act 2017
Background
On 25 February 2018 Emily White suffered significant injuries in a motor vehicle accident. At the time of the accident she was a front seat passenger in a vehicle driven by her partner, now fiancé, along the Hume Highway, Aylmerton. There was a head on collision with a vehicle that crossed over the median strip. The collision occurred at high speed. The airbags deployed. Following the collision, the vehicle in which Ms White was travelling was struck from behind by a vehicle traveling in the same direction. Ms White subsequently made a claim for damages on GIO. Liability for the claim was wholly admitted by the insurer on 17 July 2019.
The parties agree that Ms White is entitled to damages for non-economic loss, past economic and future economic loss due to loss of earnings or the deprivation or impairment of earning capacity. There is a dispute about whether she is entitled to damages relating to travel in accordance with s 4.5(1)(b) of the Motor Accident Injuries Act 2017 (MAI Act). The parties have been unable to agree on the measure of damages to which Ms White is entitled.
Transitional matters
The Personal Injury Commission (PIC) was established on 1 March 2021. These proceedings were commenced in the Dispute Resolution Service on 15 February 2021, before the PIC was established. In accordance with Sch 1 Pt 2 cl 14A and cl 14B of the Personal Injury Commission Act 2020 (PIC Act), the proceedings constitute pending proceedings and pre-establishment proceedings that I am empowered to determine.
Assessment conference
The matter proceeded for assessment by MS Teams on 29 October 2021. Mr Jones, of counsel, instructed by Ms Goodall, appeared for Ms White. Ms Warren, of counsel, instructed by Ms Byrnes, appeared for the insurer. Mr Dannoun, from the insurer, also attended.
Ms White gave evidence. The witnesses who provided statements in support of her case were not required by the parties for questioning. Counsel for both parties made oral submissions. The parties also relied on written submissions.
The following heads of damage were agreed at the assessment:
a. Past economic loss – $38,126.43, and
b. Fox v Wood - $2,427.45
The parties agreed that the insurer is to have credit for payments of weekly compensation made to Ms White in the sum of $38,126.43. It was agreed that loss of past superannuation is to be awarded at 11% of the sum allowed for past economic loss.
Accordingly, the heads of damage that I have to assess are:
a. non-economic loss;
b. future economic loss payable in accordance with s 4.5(1)(a) of the MAI Act; and
c. travel costs in accordance with s 4.5(1)(b) of the MAI Act and Regulation 9 of the 2017 Regulation (travel damages).
Evidence
Ms White relied on her statements dated 1 May 2020 and 30 September 2021. She gave evidence at the assessment conference. Statements from her mother, Anne Hoare, her father, Dudley Hoare, and Tyler Leggett, her fiancé, were also relied on.
Ms White relies on medicolegal reports of Dr E Gehr, orthopaedic surgeon, dated 1 April 2020, 24 February 2021 and 22 June 2021 and Dr Andrew Porteous, occupational physician, dated 4 August 2021 together with a range of treating material, including radiology reports, certificates of capacity, reports from treating doctors and wage records.
The insurer relies on reports from Dr Rosenthal, occupational physician, dated 31 January 2021 and 23 April 2021, Dr Stephen Rimmer, orthopaedic surgeon, dated 18 November 2020 and a report of the Vocational Capacity Centre (VCC) dated 8 February 2021. The VCC report includes a functional assessment undertaken by Christine Leaver and a vocational assessment undertaken by John Raue. There are also records from treatment providers and Ms White’s current employer.
I will canvas the evidence relied on by the parties when I address each head of damage claimed.
Submissions
Ms White relies on written submissions dated 15 February 2021, 2 July 2021 and 31 August 2021, together with oral submissions made at the assessment conference. The insurer relies on written submissions dated 9 March 2021 and 8 October 2021, in addition to oral submissions made at the assessment conference. I will address the submissions under each head of damage.
Damages assessment
Under s 7.36(1)(b) of the MAI Act, I am required to make an assessment of the amount of damages for the insurer’s liability, being the amount of damages that a court would be likely to award.
Injuries
The parties agree that Ms White suffered the following injuries as a consequence of the accident:
(a) T1 – T3 compression fractures.
(b) L2 fracture.
(c) L3 burst fracture with 40% loss of height.
(d) Right femoral mid-shaft transverse fracture.
(e) Right 10-11 ribs fractures.
(f) Small bowel perforation.
(g) Grade 1 liver laceration.
On the basis of the evidence available to me, which includes a report of Dr Gabrielle Hicks, treating trauma surgeon, dated 23 April 2018, I find that the physical injuries recorded at [15] above were caused by the accident. I am also satisfied that Ms White suffered significant scarring, particularly to her abdomen. In this regard, I have reviewed the photographs of the scarring contained in her 31 August 2021 submissions.
Ms White’s credit was not in issue. I found her to be an honest and reliable witness. I accept her evidence about the level of disability she has experienced as a result of the injuries she sustained in the accident. I agree with her father’s assessment that she is stoic.[1]
[1] Statement of Stuart Hoare dated 21 June 2021 at [34].
The submissions made on Ms White’s behalf contend that she developed post-traumatic stress disorder as a result of the accident. Included in the evidence relied on by Ms White are reports from Erika Day, her treating psychologist, dated 4 January 2019 and 22 January 2020. Ms Day’s clinical notes are included in the material relied on by the insurer. Ms Day diagnosed adjustment disorder with depressive symptoms. In her opinion, Ms White’s stress, anxiety and low mood related to ongoing reminders of the accident and ongoing physical limitations and other impacts on her life. Ms White gave evidence that while she continued to experience psychological symptoms, she stopped treatment because she did not have the time given her work commitments, appointments and other treatment. She gave evidence that her back pain in particular brings down her mood when she doesn’t have treatment. I am comfortably satisfied, particularly having regard to the traumatic nature of the accident and her ongoing physical injuries, that Ms White developed a psychiatric injury as a consequence of the accident. I find that the appropriate diagnosis is that made by her treating psychologist, Ms Day, namely adjustment disorder with depressive symptoms. I am satisfied, based on Ms White’s evidence, that her symptoms persist.
Non-economic loss
The insurer has conceded that Ms White is entitled to damages for non-economic loss. The current maximum allowance for this head of damage is $595,000. Ms White argues for an award of $425,000.
The insurer submits that an allowance of up to $250,000 is appropriate. The insurer acknowledges that Ms White was involved in a high impact motor accident and sustained serious injuries. The insurer argues that she has had a favourable recovery. In written and oral submissions the insurer emphasised that the award under this head is not to compensate Ms White with respect to treatment and care.
Damages for non-economic loss are to compensate Ms White for pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Among other matters, assessing damages under this head invites a comparison between her ability to enjoy life before and after the injuries she sustained in the accident.
Ms White is currently 24 years of age, with a life expectancy in the order of 62 years. When the accident occurred she was 21 years old. Her evidence is that prior to the accident she was fit and active. She loved aerial yoga, enjoyed walking her dog and often went hiking and bushwalking. She spent a lot of time with friends and family engaging in a range of activities.
Ms White gave evidence that immediately after the accident she was trapped in the vehicle for an hour. After being extracted from the vehicle she was transported to Liverpool Hospital by ambulance. She was diagnosed with significant injuries. A perforated bowel required abdominal surgery. A mid-shaft femur fracture on the right side required open reduction and internal fixation. She was in a brace because of her spinal fractures. She developed an E Coli urinary tract infection and struggled with the side effects of that condition. She was in hospital for 23 days. During that period she was in intensive care until 2 March 2018. She had to re-learn to walk. Her first attempt at walking after the accident was a traumatic experience. Giving evidence about that event was obviously difficult for Ms White. Following discharge from hospital Ms White required crutches and a wheelchair. She underwent significant rehabilitation and required ongoing treatment. She was off work for some six months. She still has metal in her right leg that may have to be removed.
Ms White, her parents and her fiancé have provided statements that attest to the significant impact the injuries sustained in the accident have had on her life. The way she engages with her family is now materially different. Prior to the accident Ms White and her family spent time together engaging in active pursuits. This has changed as a consequence of her injuries. Post-accident she sees her friends and family less often. She is not able to engage in the activities she undertook with them pre-accident. She attributes this to pain and tiredness. She experiences difficulty performing basic tasks and looking after herself. She experiences pain when she plays with her dog. She is no longer able to engage in aerial yoga, an activity she enjoyed prior to the accident. Although she went to Thredbo in mid-2018 she was not able to ski due to her injuries.
Her relationship with her fiancé, parents and siblings have been adversely impacted. Ms White gave evidence that her relationship with Tyler has changed since the accident. The relationship is sometimes strained. There has been a loss of intimacy in the relationship. She has lost her libido.
Her bowel movements have been affected. She was required to use a back brace. She found this debilitating, uncomfortable and a constant reminder of the accident. She developed a stomach ulcer due to medication. She experiences ongoing back pain, right leg and hip pain. I accept that her back injuries in particular are likely to deteriorate over time.
In addition to significant physical injuries, Ms White suffered significant scarring. She has a 12cm scar on her right hip and a 24 cm abdominal scar. Her evidence is that the scarring causes her discomfort every day. It is ugly and makes her self-conscious. Her evidence, that I accept, is that the scarring is a constant reminder of the accident. She is very conscious of the abdominal scar. She feels that the scar is hideous and makes her unattractive.
Ms White suffered psychological symptoms as a result of the accident for which she received treatment. Her evidence is that she had negative thoughts, slept poorly, felt angry, anxious and depressed. As I understand her evidence she ceased treatment not because her symptoms had resolved but because she struggled to find time between her job and other medical appointments. Her evidence is that she experiences ongoing anxiety, depression, nightmares, and disturbed sleep. Ms White says that she is startled easily and is hypervigilant when driving a car.
She continues to require physical therapy and undertakes home exercises. She sees her GP regularly and continues to require pain-killing medication.
In his statement of 1 July 2021, Tyler gives evidence about the active life Ms White led prior to the accident. He has observed her break down in tears because of back pain and restrictions. He has also observed Ms White’s post-accident loss of fitness and a decrease in walking endurance. He states that she is an anxious and jumpy passenger. She tires easily and needs to take regular breaks. He says that Ms White has become very insecure about her body as a result of the abdominal scarring. Their relationship has suffered.
Ms White’s parents have both provided statements. Her mother, Anne Hoare, describes her as being a hard-working, physically active and fit young woman before the accident. She describes the impact that Ms White’s injuries have had on her. She is no longer as fit and active as she once was. She has become emotional, overwhelmed and ‘snappy’ with her friends and family, particularly on the days her pain is particularly bad. She has observed that Ms White doesn’t go out with her friends as often as she did before the accident. She believes that this is because Ms White is tired and in pain. She describes the accident as having a monumental impact on Ms White’s life.
Ms White’s father, Stuart Hoare, states that she was a hard-working, diligent, mature and resilient young woman before the accident. He states that she was an active person who was a competitive participant in family social events. Mr Hoare stated that the accident had an adverse impact on his relationship with Ms White. In the immediate aftermath of the accident they often got frustrated with each other and snapped at each other, which was completely uncharacteristic for their relationship. This, in turn, affected the rest of the family. Mr Hoare states that, since the accident, Ms White has been left with ongoing pain, disability and restrictions. She no longer participates in some family activities. He has seen Ms White become quite an anxious person, particularly as a passenger. She is no longer the active, self-sufficient and independent woman she was before the accident. She is no longer the happy go-lucky or confident woman he had watched grow up.
Ms White’s evidence, together with that of her fiancé and parents, attest to the significant impact the accident has had on her life. The impact will continue to be felt for the rest of her life. She will have to contend with her injuries, disabilities and pain, for decades to come. I assess non-economic loss in the sum of $360,000.
Past economic loss
Past loss of earnings is agreed in the sum of $38,126.43. Past loss of superannuation is allowed at 11% of that sum, $4,193.90. This yields a total of $42,320.33.
Future economic loss
Ms White makes a claim for future economic loss on the basis that, as a result of her ongoing restrictions and symptoms, she would be at a significant disadvantage on the open labour market and may require time off work. She also makes a claim for future economic loss on the basis of loss of opportunity. It is submitted that she will only ever be fit for sedentary office work which she is unlikely to find stimulating in the longer term or financially rewarding. She submits that the most suitable means of compensating her for the diminution of her earning capacity is by way of a buffer in the sum of $375,000. She also submits that it is reasonable to award an additional buffer of $125,000 on account of her likely absences from the work force from time to time in the future, in addition to the likelihood that she will need to retire early as a result of her ongoing injuries and disabilities. The total sum claimed for future loss of income is $500,000.
It is submitted by the insurer that, for the purposes of s 4.7 of the MAI Act, the most likely circumstances are that Ms White would remain in roles similar to that which she held pre-accident and post-accident.
The insurer submits that the opinions of Dr Rosenthal, Dr Rimmer and Mr Raue ought to be preferred to the opinion of Dr Porteous. Dr Rosenthal opined that Ms White will face lifting restrictions of 5-10 kg and will need to avoid static postures. This, in his opinion, does not impact her ability to perform administrative work. Dr Rimmer considered her prognosis to be good based upon his examination. In the insurer’s submission, he thought that she was fully fit to perform her pre-injury duties. The insurer submits that Mr Raue and Ms Leaver similarly found Ms White fit to perform her current role. It is submitted that there has been no suggestion from any treatment provider that she will need to reduce her work to 20-30 hours per week. The insurer submits that Dr Porteous’ opinion in that regard is an outlying one. It is submitted that there is no evidence that Ms White would have worked beyond usual retirement age of 67 and that this ought to be accepted as her likely retirement age.
In its written submissions the insurer argued that, based on the opinions of Drs Rosenthal and Rimmer and Mr Raue, it is arguable that there will be no actual economic loss, and that no award under this head should be made. At the assessment conference Ms Warren confirmed that the insurer did not press this submission and that the insurer conceded that an award should be made under this head by way of a buffer of up to $200,000.
Records from her present employer indicate that Ms White is earning $748.50 net per week. Prior to the accident she was earning in the order of $711 net per week.
For an award of damages to be made under this head s 4.7 of the MAI Act must be satisfied. The parties agree, and I accept, that s 4.7 does not prevent a buffer being awarded for future economic loss in appropriate cases: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13[2]. Where a buffer is awarded, the adjustment referred to in s 4.7(2) is nil.[3] A combination of sub-ss 4.7(1) and (3) require the identification and statement of the assumptions about future earning capacity or other events on which the award is based. Matters to be taken into account commonly include:
(a) identification of the skills, training and experience of the injured person, as at the date of the accident;
(b) the work she was undertaking immediately prior to the accident;
(c) the likelihood that she would have continued in such employment, but for the accident;
(d) the possibility that she might have obtained promotion or other benefits, but for the accident;
(e) the age to which she was likely to have worked in that employment, and
(f) the possibility that the employment would not have been continuous.
[2] While Kerr addressed s 126 of the Motor Accidents Compensation Act 1999, that provision is, in material respects, in the same terms as s 4.7 of the MAI Act.
[3] Kerr per Basten JA at [35].
Prior to the accident Ms White was employed in an administrative role at Big Vision Print, a small family printing and office goods business. Her evidence is that this work required a significant amount of lifting, including paper rolls weighing 15-20 kg. Her duties also involved repetitive bending and overhead reaching. She is currently employed full time as an administrative assistant at Illawarra Medical Imaging. Her evidence is that her employer is supportive and accommodates her restrictions. Over the past few weeks she has been required to travel to Nowra to work for part of the week. This is a temporary arrangement. She experiences increased pain as a result of the drive to Nowra, particularly on the return leg. Her evidence is that her ideal work arrangements, to accommodate for her injuries, would be to work four days a week, with Wednesday off to allow her to rest. She says that she has continued to work full time for financial reasons.
In his statement Tyler Leggett records that, since returning to full-time work, Ms White regularly complains of increased pain and difficulty. He states that there are days on which she breaks down in tears because of back pain and restrictions. He has noticed that she can become despondent and overwhelmed very easily.
Turning to the medical evidence, Dr Gehr[4], orthopaedic surgeon, expressed the opinion that there was a high likelihood that Ms White would develop significant long term back pain associated with deformity. He expected that, with symptoms developing in her spine over the coming five years, her earning capacity will be reduced by 20% - 30%.[5] He did not believe that Ms White could undertake her pre-accident duties as they involved a lot of lifting. The doctor thought that she would have to retire prematurely by 5-10 years as a result of her injuries.
[4] Reports dated 1 April 2020, 24 February 2021 and 22 June 2021.
[5] Report 24 February 2021.
Dr Rimmer[6], orthopaedic surgeon, expressed the opinion that, given she was working full time, Ms White was not incapacitated for work. I don’t accept Dr Rimmer’s opinion in this regard. Given the nature of the injuries suffered by Ms White together with her evidence, which I accept, about the pain, restrictions and disabilities she experiences as a result of her injuries, I am comfortably satisfied that she does have a loss of capacity to earn as a result of the accident.
[6] Report dated 18 November 2020.
Dr Porteous[7], occupational physician, reported that Ms White is in chronic pain. In his opinion, she is restricted from moderate or heavy lifting, pushing pulling or carrying and frequent, constant or full bending together with constant sustained sitting, standing and walking. She is restricted from manual jobs. She needs to regularly change workstation position to stretch and exercise and move her spine. She has ongoing pain and restriction with a degree of reduced work capacity. She needs to take regular breaks. Sustained sitting cumulatively increases her back pain as the day goes on, particularly if she is unable to take regular breaks when sitting, standing and walking. In his opinion, it is likely that in the medium term she will move to part-time work as sustained sitting in light jobs that she has training, experience and qualifications in, will likely increase her symptoms. It is more likely than not that she would be able to sustain work long term, 20 to 30 hours a week. If she can move to that, she will be able to continue to work through the long term. In the doctor’s opinion there was no evidence that she will have to retire early.
[7] Report dated 4 August 2021.
Dr Rosenthal[8] recorded that, on examination, Ms White had tenderness in her lumbar spine. There was reduced lumbar movement with reduced extension by three quarters. Flexion was reduced by one third. While he thought that she would need restrictions in the open labour market, in terms of administrative work she can work full time. In a supplementary report[9] the doctor expressed the opinion that Ms White had ongoing symptoms in her lower back, mid back and right leg. In terms of the open labour market, restrictions required would involve avoiding prolonged fixed postures, recurrent bending and lifting of over 10 kg repetitively. In his opinion, these restrictions are likely to be permanent, but do not impact on her administrative work which she can continue on a full time basis.
[8] Report dated 31 January 2020.
[9] Dated 23 April 2020.
The insurer relies on a report from the Vocational Capacity Centre[10]. The report contains a functional assessment conducted by Christine Leaver and a vocational assessment undertaken by John Raue. Ms Leaver concluded that Ms White is capable of continuing full-time sedentary and selected light occupations. Her present employment as a medical receptionist is ‘ideally suitable’. Given her lumbar pathology, she is not suited to occupations requiring physically demanding tasks, or jobs requiring her to stand all day or confined standing. Light employment would be that based on walking and being able to move around the work environment, rather than based on the level of manual handling. Walking and standing work needs to be combined with regular seated tasks or work that can be adapted to sitting.
[10] Dated 8 February 2021
Mr Raue undertook a vocational assessment. He recorded that Ms White did not complete year 12, leaving prior to the final assessments. She obtained a Business Administration traineeship, which she completed at Certificate level. This covered standard office work, basic accounting, record keeping together with some selling and marketing skills. Ms White has also completed a medical terminology course online, over a 12 month period. She is experienced in computer use in an office environment. From a vocational perspective, continuing in general administrative work, in which she is now quite experienced, was considered to be the most likely option. Although Ms White does have skills for general sales roles, roles of that type may be subject to whether any physical restrictions are necessary. Her cognitive skills are in the mid-range of the population. Her verbal skills are quite strong. While she would have the potential to study courses at Diploma level she does not seem to have a strong interest in doing so. Appropriate vocational possibilities were considered likely to be found in the Clerical and Administrative Workers and Sales Workers Categories of the Australian and New Zealand Standard Classification of Occupations (ANZSCO) First Edition. Specific options she could consider include - general clerk, medical receptionist, order clerk, library assistant, call centre operator and retail sales assistant. With further training consideration could be given to work as a teacher’s aide.
While the insurer makes the point in its submissions that neither Dr Gehr nor Dr Porteous assessed Ms White face to face, I do not consider that this detracts from the opinions they have expressed. Both doctors had access to treating and radiology reports. Both doctors interviewed Ms White. Her injuries are objectively verifiable. Indeed, there is no contest between the parties as to the nature of the physical injuries she suffered as a consequence of the accident.
In assessing this head, I have taken into account the nature and extent of Ms White’s injuries, particularly the T1-T3 compression fracture, the L2 fracture, the L3 burst fracture and right femoral fracture.
Ms White could not, in my view, return to the work she was performing at Big Vision before the accident. In particular, she would not be fit to perform the lifting involved in that work.
Although she is presently working full time, her current duties are materially different to those she was performing at Big Vision. They do not involve lifting and are essentially sedentary. Her evidence is that after working consecutive days she experiences pain and stiffness in her lower back. She requires regular breaks and has lifting restrictions. In my view she is struggling to perform her current duties on a full time basis. Her evidence is that while she experiences pain throughout the week, the pain at the end of the week is worse.
I find that, had she not been injured in the accident, Ms White would have continued to work in employment similar to that in which she was engaged at the time of the accident. Given the impression I have formed of her character, I think it likely that she may have taken on some managerial responsibilities over time. This would have resulted in increased earnings.
Ms White’s evidence is that she found the assessment at the VCC mentally and physically draining. She did not think she could work as a library assistant because of the lifting that would be involved. I have concluded that she may be able to undertake some of the roles identified by the VCC, including work as a clerk that did not involve lifting above her restrictions. However, her capacity to earn in any role for which she is suited, having regard to her skills, training and experience, has been compromised and will diminish over time.
Ms White’s evidence is that she wants to have all her children by the time she is 30. She is concerned about the physical demands of being a mother and the impact this will have on her ability to work. I am satisfied that after taking some time off work to care for her newborn children she would have returned to full time work.
I find that Ms White is left with permanent injuries and disability that have resulted in a loss of capacity to earn. Her evidence, which I accept, is that she experiences persistent pain, weakness and restriction of movement in her lower back. She experiences intermittent pain, weakness and restriction of movement in her mid-back, together with stiffness and restriction of movement in her right knee. She has reduced standing and sitting tolerance.
In my view, it is probable that Ms White will not be able to continue working full-time as a result of the injuries she sustained in the accident. There will come a time, in the next few years, that she will be required to reduce her work hours by one or more days a week due to the injuries and disabilities caused by the accident, particularly her back injuries. I think it likely that her back injury will deteriorate over time. This in turn will adversely impact Ms White’s work capacity.
I am satisfied that Ms White’s loss of capacity to earn will be productive of financial loss. She is nearly 25 years old. But for the accident she could reasonably have expected to work until she was 67 years of age, a further 42 years. It is possible that she will have to retire early. It is not possible to determine when this may occur. She is also likely to require time off work for treatment and when her symptoms are particularly bad. A notional working life of a further 42 years is a long time for a young woman with significant injuries. There are a raft of uncertainties in terms of what may transpire over this period. I allow a buffer in the sum of $275,000. This sum takes into account a loss of opportunity, a diminution of Ms White’s earning capacity, likely absences from work from time to time and the possibility of early retirement.
Travel damages
Ms White seeks an award for travel damages under s 4.5(1)(b) by way of a buffer in the sum of $20,000. The sum sought is based on the increased cost of business class airfare to Europe for Ms White’s honeymoon.
Section 4.5(1)(b) allows for an award of damages for costs relating to accommodation or travel, not being the cost of treatment and care, of a kind prescribed by the regulations. Regulation 9 of the 2017 Regulation states that the kind of accommodation or travel for which damages may be awarded (subject to Division 4.2 of the Act) is any accommodation or travel for which a claimant has incurred, or is likely to incur, a cost as a result of the injury caused by the motor accident.
The insurer submits that the claim for additional cost of travel is not supported by any medical evidence, and falls outside the parameters of s 4.5(1)(b) and Regulation 9. I do not agree. In my view, the claim falls squarely within the parameters of those provisions.
Ms White gave evidence of her intention to travel to Europe for her honeymoon. She agreed, in response to questions from Ms Warren, that she could stretch, walk, use a hot water bottle and take medication on a long flight. These concessions do not, to my mind, establish that Ms White will be able to travel in an economy class seat. While there is no direct medical evidence addressing the claim, I am comfortably satisfied that an award should be made. Her physical injuries, particularly those affecting her back, will make long-hall travel very difficult for Ms White. She presently experiences back pain in particular after driving for an hour. Her evidence is that lying flat relieves her back pain to the extent that it is reduced to a manageable level. Ms White gave evidence that she would have difficulty sitting for nine hours. A flight to Europe is likely to take close to 24 hours.
I find that it is more probable than not that Ms White will travel to Europe for her honeymoon. I find that she is likely to incur costs associated with that travel as a result of the injuries caused by the accident, namely the increased cost of return business class airfare. The cost of business class airfares vary according to airline and date of travel. I have determined that $10,000 is an appropriate allowance for this head.
Fox v Wood
This head has been agreed in the sum of $2,427.45.
Assessment of Damages Summary
I assess the claim as follows on the findings set out above:
Non-Economic Loss $360,000.00
Economic losses
·Past loss of earnings (including loss of superannuation) $42,320.33
·Future loss of earnings (buffer) $275,000.00
·Travel damages $10,000.00
·Fox v Wood $2,427.45
Total Damages Assessed $689,747.78
Ms White’s economic loss is to be reduced by, and the insurer is to have credit for, the statutory benefits paid to her in the agreed sum of $38,126.43.
Costs and Disbursements
Other than those costs contingent upon the award of damages, costs and disbursements were agreed between the parties.
The claimant’s legal costs and disbursements are payable by the insurer in accordance with Part 8 of the MAI Act and the Motor Accident Injuries Regulation 2017.
Brett Williams
Member (Motor Accidents Division)
Personal Injury Commission