Young v QBE Insurance (Australia) Limited
[2024] NSWPIC 621
•6 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Young v QBE Insurance (Australia) Limited [2024] NSWPIC 621 |
| CLAIMANT: | Daniel Young |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 6 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant 46 years old; liability denied; claimant riding motorcycle when an unidentified vehicle without warning made a sudden lane change into his path causing the crash; claimant the only witness; both experts opposing opinions on cause of crash; claimant a qualified electrician with inconsistent work history; Held – cause of accident wholly the fault of the unidentified vehicle; no reduction for contributory negligence; past and future economic loss assessed as a buffer totalling $280,000 less statutory benefits paid. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017.
|
STATEMENT OF REASONS
INTRODUCTION
The claimant, Mr Daniel Young was involved in a motor vehicle crash whilst riding his motor bike on 8 December 2019.
The insurer, QBE Insurance Australia Limited (insurer) denied liability for the accident.
Both parties have engaged the services of expert reconstruction consultants to provide opinion on the circumstances of the accident.
Both parties rely on expert medical evidence. The claimant has been assessed for whole person impairment at the Personal Injury Commission (Commission).
The only witness to give evidence was the claimant.
ISSUES WHICH AROSE
The following issues arose:
(a) Is the claimant wholly or partly at fault for causing the crash?
(b) What is the nature and extent of the claimant’s accident-related injuries.
(c) Has the claimant established an impairment to his work capacity which is productive of past and future economic loss?
IS THE CLAIMANT WHOLLY OR PARTLY AT FAULT FOR CAUSING THE CRASH
At the time of the crash, Mr Young was 41 years old. He held a full New South Wales motorcycle licence.
He had been riding motorcycles for more than two years.
Leading up to the crash, Mr Young was riding his Suzuki 600cc motorcycle in a southerly direction along the M1 motorway at Wahroonga. On approach to the off ramp at the intersection of the Pacific Highway, he was travelling in the far right lane of three lanes. All three lanes take a slight uphill approach towards a set of traffic lights before entry onto the Pacific Highway.
The maximum speed reduces from 80kmph on the M1 to 60kmph on the off ramp onto the Pacific Highway.
The claimant says without warning, an unidentified vehicle travelling in the lane on his left, made a sudden lane change into the path of his motorcycle. He says he took immediate action, applying the brakes on his motorcycle in order to avoid colliding with the vehicle, and took evasive action by swerving into the centre lane.
Mr Young says at the same time, the traffic in front of him suddenly braked. He was unable to control his motorcycle and as he moved into the far left lane, collided with a boat trailer before being dragged 5 to 10m.
Mr Young has made a claim for damages against the unidentified vehicle. The insurer represents the Nominal Defendant defending the unidentified vehicle which Mr Young says caused the crash. He says the crash caused injuries and damages.
The insurer wholly denies liability for the crash. The insurer says the claimant was exceeding the speed limit and on the approach to the off ramp, was caught by surprise when the vehicles travelling in front of this motorcycle suddenly braked. Mr Young was unable to stop and collided with the boat trailer caused by his own negligence.
Insurer engaged the services of MJM Investigations to carry out enquiries with the relevant authorities, to take statements and collect evidence. They interviewed Mr Young on
10 March 2020 which led to a signed statement and presentation of photographs taken by
Mr Young of the accident scene.
The investigators also interviewed Mr Robert Kneeshaw, the driver of the vehicle towing the boat and trailer Mr Young collided with at the crash scene. He gave an oral statement to the investigator which was provided in draft form and unsigned. Later in the year, he signed the statement and emailed it to the investigator.
Mr Young had a comprehensive insurance policy with Insurance Australia Limited t/as NRMA Insurance to cover his motorcycle. This insurer provided to the insurer’s investigator, details of the policy which led to the production of a Motor Vehicle Assessment Report.
The insurer engaged mechanical engineer Associate Professor Anderson to review documentation and provide his opinion on the cause of the accident. The Associate Professor has vast experience with crash simulations, reconstruction investigations amongst other skills. He was provided with the claim form, police report, the investigation reports, GIPA records which included the claimant’s driving record, the motorcycle damage report, request and answer to particulars and the expert report of Mr Grant Johnson commissioned by Mr Young.
A/Prof Anderson based his findings on the factual premise Mr Young was riding his motorcycle in the right-hand lane of three lanes at the intersection of the M1 Motorway and Pacific Highway at Wahroonga. Mr Young alleges that an unidentified vehicle performed a sudden lane change ahead of him and braked suddenly.
A/Prof Anderson proposes a number of opinions. He concluded the most plausible cause of the loss of control of the motorcycle was insufficient traction between the wheels and the road due to the combination of braking, steering radius, and speed.
He further suggests that it was also plausible the claimant changed lanes to take advantage of the clear lane but misjudged his speed and line. He also says it is plausible Mr Young had to take a steeper line through the corner due to slowing traffic.
Under the heading Opinions, A/ Prof Anderson says, “The primary cause of the accident is not known on the physical evidence available”. He proceeds to tease out Mr Young’s version of events and identifies a discrepancy in his narrative due to the point of impact which was 37m beyond the point he says he first swerved to avoid the unidentified vehicle.
In conclusion the expert opines the most likely cause of the accident is a combination of speed, turning radius, and braking which led to loss of control of his motorcycle. Further, he says Mr Young may have misjudged his speed leading to loss of control of his vehicle.
He believes it is plausible the claimant was travelling at 60 kmph rather than 25-45kmph which was suggested by Mr Johnson.
He further says Mr Young could have avoided the accident had he slowed before reaching the traffic lights ahead and had he executed the lane change in a more controlled manner. He could have avoided the crash had he been more vigilant about traffic conditions in the adjacent lane.
In addition to the expert’s conclusion, the insurer highlights three inconsistencies with the claimant’s version of events leading up to the crash. The first inconsistency is the version of events recorded by Dr Bodel after Mr Young was interviewed by the doctor for the purposes of a medical legal report.
The insurer says, Dr Bodel had no liability evidence at the time of his report dated
16 February 2022 and therefore, could only record the circumstances of the accident as reported to him by Mr Young. The insurer says this version has to be considered as the correct version which makes no mention of an unidentified vehicle rather than subsequent versions.
The second and third inconsistencies submitted by the insurer to support their denial of liability is the fresh evidence given by Mr Young at the assessment conference including a four-wheel drive and the traffic lights ahead of where the crash occurred turned amber just before the crash occurred. Mr Young has not made any reference to these facts on previous occasions. The insurer also highlighted Mr Young has not previously mentioned what speed he was travelling at the time of the event leading to the crash.
The insurer refers to the statement of Mr Robert Kneeshaw. Mr Kneeshaw was the driver of the Holden Commodore which was towing the boat and trailer Mr Young collided with.
In his statement, Mr Kneeshaw recollected the conversation he had with Mr Young after the crash. The insurer highlighted Mr Kneeshaw makes no mention of an unidentifiable vehicle.
The insurer identified what they submit is a discrepancy between Mr Young’s evidence his motorcycle was written off whereas the assessment report on damage appears to suggest the bike was repairable.
At the assessment conference, the insurer suggested to Mr Young that he was a “bike racer” after referring to his traffic record. Mr Young denied this suggestion.
Based on all of the submissions, opinions and information available, the insurer submits it should be accepted, Mr Young failed to keep a proper look out, was riding his motorcycle at an excessive speed in the circumstances, failed to brake, steer, swerve or otherwise control his bike so as to avoid the boat trailer. Therefore, he was wholly at fault for the subject accident.
I have not been persuaded Mr Young is wholly at fault nor did he contribute to the cause of the accident for the following reasons.
The only witness to the accident is Mr Young. He has never given evidence to anyone that he was speeding at the time of the events which led to the crash. The insurer is critical of his answers to questions put to him at the assessment conference that his speed was approximately high 50kmph as he and the flow of traffic around him were exiting the motorway.
I have reviewed the statements provided by Mr Young and at no time was he asked about his speed. I note the report to the police is dated 2 March 2020. There is no mention of the speed of any vehicles involved.
I make no criticism of A/Prof Anderson’s various plausible events as he based his opinions on the material provided to him by the insurer and answered the questions posed to him as best he could. He did not have the opportunity to hear the claimant’s version of events nor was he able to ask Mr Young questions.
His opinions disregard the only witness evidence suggesting if his version is accepted, he must have been speeding and therefore was unable to brake and control his motorcycle. He does acknowledge if Mr Young’s version is accepted, it appears the sudden lane change by an unidentified vehicle left him with insufficient space to slow, causing him to swerve.
The Associate Professor is of the opinion there is a discrepancy in this narrative because of where he ultimately collided with the trailer, being 37m beyond the point he indicated he swerved.
The expert states Mr Young’s initial actions to swerve left might have been a reasonable response to the insured’s vehicle’s sudden lane change. However, he says the discrepancy between the likely space taken up by the insured driver and the distance travelled by
Mr Young subsequently suggests he contributed to the cause of the crash due to his approach speed.
The difficulty with this opinion is the only evidence of the speed is that of Mr Young which he estimated at the assessment conference was in the high 50kmph. This is not at odds with
A/Prof Anderson’s estimate.
The claimant engaged Mr Grant Johnston a consulting engineer to investigate the circumstances of the crash. He personally attended the scene where the crash occurred with Mr Young. He acknowledged the only version of the crash is that given by Mr Young. He put that version to the test using the law of physics.
Mr Johnson concluded the likely speed of the motorcycle ridden by Mr Young was in the order of 25 to 45kmph. There is no evidence that this was the case. The likely speed is the speed nominated by Mr Young, being just under the speed limit which was 60kmph.
I am satisfied on the evidence of Mr Young, that he was travelling with the flow of traffic, in the right lane on the approach to the set of lights at the entrance to the Pacific Highway, when an identified vehicle, suddenly and without warning, changed lanes into the path of the motorcycle. Mr Young braked heavily in order to avoid colliding with unidentified vehicle which caused him to lose control of his bike, colliding with the trailer owned and towed by
Mr Kneeshaw.
There is no evidence to support the insurer’s submission Mr Young failed to keep a proper look out. The version recorded by Dr Bodel is denied by Mr Young and cannot be tested as the doctor’s notes are not available and he was not asked to attend the assessment conference to confirm what version was communicated to the doctor.
The comprehensive insurer’s assessment report speaks for itself. There is no evidence to interpret the report to explain what salvage condition and the word “repair” means. I accept Mr Young’s evidence the motorcycle was “written off”.
The criticism of Mr Young’s evidence at the assessment hearing that he had made no mention previously about a four-wheel drive or the speed he was travelling is unwarranted. He had not been asked by the insurer’s investigator nor any other person about these facts.
Also, the statement by Mr Kneeshaw is a version he recalled Mr Young communicated to him. He was not a witness and therefore, his evidence is not evidence about what he saw but rather, a version he recalled Mr Young told him at the scene of the crash.
Mr Young’s traffic record is not relevant to the issue of fault or the cause of this crash.
I am satisfied the unidentified vehicle was wholly at fault for the crash. I am satisfied there is no contributory negligence on the part of Mr Young.
WHAT IS THE NATURE AND EXTENT OF THE CLAIMANT’S ACCIDENT-RELATED INJURIES?
Mr Young told the insurer’s investigator that after the crash, he noted there were no abrasions on his motorcycle helmet. The palms of his leather gloves were worn right through on both hands. His leather jacket had scrapes down the lower part of the back and right shoulder. His leather pants had damage all over the left-hand side down the left leg.
He said after about half an hour afterwards, he felt pain in his left knee and across the lower back which increased in intensity and restricted his movement. The left knee began to swell.
After arriving at his ex-partner’s home, he observed bruising on his right shoulder as well as the swollen left knee. He attended his general practitioner. He was referred for radiology and issued with a work certificate.
He was examined and treated by an orthopaedic surgeon and neurosurgeon. His lower back continued to cause him pain and restriction when giving his statement on 10 March 2020.
Subsequently, he has provided two additional statements. The second statement is dated
16 June 2021. He says in that statement he continues to suffer significant ongoing pain and restriction of movement in his lower back. His left knee continues to trouble him. He cannot kneel, crouch or squat without difficulty.
The third statement is dated 3 October 2024. He reports he continues to suffer from the effects and issues associated with his injuries. These are listed in paragraph nine which includes difficulty with concentration, depression, and frustration.
Both parties engaged medical experts to provide opinion on the nature and effects of
Mr Young’s injuries.
Mr Young’s solicitor arranged for him to be interviewed and examined by Dr Bodel, orthopaedic surgeon on 16 February 2022. He told Dr Bodel he was in constant pain across his lower back, both thighs, discomfort in both knees. His back pain is aggravated by prolonged sitting, bending, twisting, or lifting. He struggles in the early morning with stiffness. He can no longer kneel, squat, or climb stairs or ladders.
Dr Bodel accepted Mr Young has ongoing complaints in the back and both knees caused by the accident. He suffers with continuing pain in both regions.
A refresher opinion was provided by Dr Bodel dated 16 November 2023. The nature and extent of his injuries and ongoing symptoms reported to the doctor had not improved since his first examination.
Mr Young attended a telehealth appointment arranged by his solicitor with consultant psychiatrist, Dr Jeff Bertucen on 16 November 2022. The psychiatrist records a history of
Mr Young’s longstanding fluctuating depression, commencing in his late teens. He told the doctor after the incident, he re-experienced phenomena, nocturnal hyperarousal and nightmares of the incident.
While Dr Bertucen accepted the incident has not been the substantial cause of his depression and anxiety, Mr Young experienced a distinct regression of depression and anxiety caused by the crash.
The insurer arranged for Mr Young to be examined by orthopaedic surgeon A/Prof Michael Shatwell on 7 September 2022. After interviewing Mr Young and reviewing the documentation provided, the Associate Professor diagnosed Mr Young’s injuries as nonspecific low back pain, sprain or strain medial collateral ligament left knee which has settled completely and early degenerative joint disease in both knees.
It is the Associate Professor’s opinion that there is insufficient information to link these diagnoses with the history of the accident and the degenerative joint disease of both knees was not caused or aggravated by the accident.
It is difficult to accept the Associate Professor’s findings. He comments on the radiologist’s findings of a partial-thickness tear of the ‘posterior medial patellofemoral ligament” is doubtful as he gives not explanation why he came to this conclusion.
The Associate Professor reveals he had not seen the MRI and therefore, could not comment further on the consistency of the radiologist report. His opinion is based on his clinical examination. He appears to dismiss the radiologist report of “complete rupture of the medial collateral ligament” because this was not confirmed by his treating orthopaedic surgeon
Dr Burneikis.
Dr Burneikis did consider Mr Young’s left knee was most likely injured and diagnosed a severe sprain or strain. It is clear Mr Young reports ongoing pain and restriction in his knees and back.
He told occupational physician Dr Alan Home at a consultation arranged by the insurer that he experiences daily low back pain and numbness in both legs below the knees, and a constant ache at the left knee with intermittent pain at the right knee.
Dr Home concluded, after review and comment of the treating and radiology reports, that
Mr Young sustained a soft tissue injury to his lumber spine. Dr Home opined it is probable Mr Young suffered a musculoligamentous injury to his lower back. He accepted, in relation to the left knee, Mr Young suffered contusion, synovitis, medial collateral ligament strain resolved, mild quadriceps wasting.
The insurer arranged for consultant psychiatrist Dr Inglis Synott to interview and examine
Mr Young. The assessment took place on 6 May 2024 via video conference. Dr Synott diagnosed Mr Young with an adjustment disorder with anxiety and depressed mood that predates the accident.
I am satisfied, based on the treating medical experts diagnoses of Mr Young’s accident-related injuries and subsequent medical opinions of Dr Bodel and Dr Home, the nature of
Mr Young’s injuries are his lower back and left knee. He may have experienced an exacerbation to his pre-accident psychological symptoms according to the opinion of
Dr Bertucen.
The insurer provided in their material a certificate with reasons from the Commission by Medical Assessor Nigel Menogue. Although his certificate assessed whole person impairment of 0%, the independent Medical Assessor accepted, Mr Young’s injuries caused by the accident include soft tissue injury to the lumber spine; partial-thickness tear to the medial collateral ligament and soft tissue injury of his left knee.
The extent of these injuries includes ongoing lower back pain restricting movements which involve bending, twisting, and lifting. He says he cannot squat or kneel and has difficulties climbing ladders. He has become hypervigilant travelling on the road due to flashbacks.
HAS THE CLAIMANT SUFFERED AN IMPAIRMENT TO HIS EARNING CAPACITY WHICH IS PRODUCTIVE OF PAST AND FUTURE ECONOMIC LOSS?
Mr Young is currently 46-yrs-old.
He left high school after completing Year 11. He enrolled in an electrical apprenticeship at Mt Druitt TAFE College. He completed his electrical trade certificate in 1998.
He enrolled in further studies in the following year completing a Certificate III in electronics.
Mr Young has an impressive work history in the mechanical electrical trade. At the date of the crash, he was employed by Atom Resources Pty Limited (Atom Resource), a labour hire company. The labour hire company would engage his services for clients to carry out electrical installations, electrical upgrades, and fit outs. These clients included Gosford Hospital, IGA Stores, Dubbo Hospital, WestConnex where he was working at the date of the crash. He reveals in his second statement that he was earing around $2,800 net per week.
Since the crash, Mr Young says he has experienced difficulties carrying out duties required in the mechanical electrical field. He has only managed two periods of employment with Controlling Power Pty Limited and BFS Central Coast Pty Limited. The first period involved prolonged bending over a bench assembling switch boards which aggravated his lower back and knee symptoms.
The second period involved a storeman position requiring the operation of a forklift. He experienced difficulties getting in and out of the forklift due to his back and knee injuries.
Apart for these two periods of employment, Mr Young has not worked since the crash.
He is in receipt of Centrelink benefits.
The insurer refers to Mr Young’s pre-accident depression and anxiety. Mr Young does not shy away from his prior mental health symptoms. His major complaint since the crash, are the injuries caused by the crash in the regions of his back and left knee.
The insurer relies on the opinion of A/Prof Shatwell and conclusions of Medical Assessor Menogue submitting Mr Young suffered soft tissue injuries to his lumber a spine and left knee.
The insurer refers to the contract between Mr Young and Atom Resource in which it appears his pre-accident earnings were substantially less than the amount adopted by Mr Young of $1,360 - $1,203. They have scrutinized the available taxation returns from 2015 – 2023 and prepared a table at R16. This table identifies the most productive year of income was 2017 – 2018 where Mr Young earned $1,203 net per week. Overall, before the crash his income fluctuated each year and included termination payments.
Taking an average for his earnings from his taxation returns, the insurer submits, based on available evidence, a precise weekly loss of earnings cannot be accurately calculated and have proposed a global conservative sum of $10,000 is appropriate inclusive of superannuation.
Associate Professor Shatwell accepted, although Mr Young is fit for a graded return to his pre-injury work, he cautioned he should be careful to avoid overstressing his left knee and lower back whilst he is symptomatic.
Dr Home reported Mr Young retains capacity for full time work of a sedentary, semi-sedentary or light manual nature. He says he is fit to work in sales of electrical goods or in a supervisory capacity. He is also fit, according to the doctor, to undertake testing or tagging electrical equipment on building sites.
Dr Home warns Mr Young to restrict very heavy manual handling and avoid vertical work or frequent stair and ladder climbing or repetitive squatting.
I asked Mr Young to describe to me the duties that are required working in the mechanical electrical field. He told me this involved carrying, positioning, and climbing up and down ladders, working in confirmed spaces, bending over benches, reaching up high and manual heavy handling of equipment. These are all activities both insurer’s experts opined should be avoided.
I accept Mr Young has sustained an impairment to his work capacity based on the restrictions proposed by the insurer’s expert medical professionals.
An assessment was carried out at the request of the insurer to determine his earning capacity and possible income from suitable employment. The report is dated 6 August 2024, and the executive summary reveals Mr Young has a work capacity for 38 hours in the capacity as an electrical assembler, or courier, or light delivery driver. The suggested possible earnings from these options for suitable employment range between $1,213 and $1,367.
Having reviewed the suggested options for employment, apart from an appendix reporting statistics, there is no information which provides factual opportunities for Mr Young to apply for and reasonably expect to successfully secure employment in the areas recommended as suitable options.
The claimant’s expert Dr Bodel accepts Mr Young is fit for modified work activities. Although the doctor says he should be able to undertake alternate work, he will struggle in his chosen field.
He engaged Ms Catherine O’Halloran, Vocational Capacity Assessor to provide opinion on Mr Young’s probable current work and earning capacity and review suitable employment options. She concluded Mr Young has some work capacity, however his outlook is limited and uncertain. She reported Mr Young expected to complete training as a warehouse manager. She felt he may experience difficulties competing with younger and more experienced applicants in the open labour market.
It is clear based on the medical opinions summarized above and both earning capacity assessments, that Mr Young can no longer return to his chosen field in the electrical trade.
Having established an impairment to his earning capacity, is this impairment productive of economic loss? The insurer has accepted this is the case as they have assessed this loss as a buffer.
Although I accept Mr Young’s pre-accident earnings do not demonstrate a weekly loss as proposed by his submissions and schedule of damages, he has sustained a substantial loss. He has only had two short periods of employment since the crash to mitigate his loss.
The submission made by Mr Young for past economic loss cannot be maintained. He has adopted the highest income year less the periods he worked which amounts to $283,438.
His submission for past loss is calculated on $1,203 which he says is the mid-range figure based on his taxation returns from 2012 – 2023. It appears to me this figure is based on the net earnings from the 2018 taxable year.
There does not appear to be any dispute that in the past, Mr Young has experienced family and relationship issues. His employment status may have been impacted by these issues.
His average weekly earnings in the past have varied from almost nil to $1,727. In light of the diversity of figures, I agree with the insurer’s approach that it is not possible to adopt a figure of loss but rather, a global amount is the appropriate assessment for past economic loss.
A cushion or buffer assessment is relevant in circumstances where earning capacity has unquestionably been reduced but its extent is difficult to assess, see Allianz Australia Insurance v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13.
This is such a case. Because Mr Young’s income prior to the accident was inconsistent, it is not open for me to identify with accuracy his past weekly earnings and as such, the appropriate assessment of past economic loss is a buffer $100,000 inclusive of superannuation. This amount takes into consideration the weeks in which Mr Young was employed during the year 2023. The insurer seeks a credit for $6,991 for paid statutory benefits.
For the future, the insurer proposes the amount submitted by the claimant cannot be maintained. The insurer’s position is that no damages can be awarded under this head of damage in circumstances where any incapacity is not related to injuries sustained in the accident.
In the alternative, the insurer submits an appropriate award for future economic loss is $20,000 inclusive of superannuation.
Mr Young is seeking $620,639 for future economic loss plus $77,579 for future loss of superannuation. This is based on $1,065 net per week. It is unclear on what evidence or the claimant’s most likely future circumstance but for the accident, that this amount is proposed.
Apart from the approach adopted by the insurer, neither submission for future economic loss can be maintained.
But for the accident, the claimant’s most likely future circumstance is he would have continued to work as a mechanical electrician or in the field of electronics. Due to accident-related injuries, he is unable to continue working in this field.
The support for this position can be located in the insurer’s medical experts, A/Prof Shatwell “…though Mr Young’s description of falls coming downstairs warrants serious investigation if he is to be considered fit for climbing ladders, working on sloping surfaces and in cherry pickers and other equipment above ground level”. And Dr Home “He is reasonably restricted from work that involves very heavy manual handling…”. The doctor places restrictions on additional work activities.
Mr Young conceded at the assessment conference that he is hoping to find work with a diving club which may lead to work in tourism. He is undertaking training to work in a warehouse which may open up opportunities in the field of logistics.
I am satisfied Mr Young has a residual earning capacity. As with past economic loss, the assessment for future economic loss cannot be accurately calculated. A buffer is relevant as this is a circumstance where Mr Young has an impairment to his future loss of earnings.
Considering his age to retirement, his past earnings, and the competition in the open labour market, the appropriate amount for future economic loss is $180,000 inclusive of superannuation.
SUMMARY
A summary of the assessment of damages is $100,000 past economic loss; $180,000 future economic loss with no reduction for contributory negligence; total $280,000. The insurer is entitled to a credit of $6,991 for statutory benefits.
COSTS AND DISBURSEMENTS
The claimant’s legal representative uploaded on the portal on 16 October 2024 a schedule of costs and disbursements. I am unsure where the claimant’s legal representative extracted some of these figures. Where they have not corresponded to the most recent regulation increases, I have adopted the maximum hourly rate.
The insurer replied to this schedule with submissions dated 24 October 2024 identifying an error with the claim for a medical assessment.
In response, a further schedule was uploaded on 24 October 2024 on behalf of the claimant. The further schedule gives no explanation of the reason for this further schedule, nor do dates or calculations correspond to the first schedule.
Further, the insurer does not agree with the claim for the clinical notes by Central Coast Orthopaedics.
I have exercised my discretion and assess costs and disbursements as follows, included in the Costs Calculation Form.
I have one medical assessment in the Commission with Medical Assessor Menogue. The insurer’s submission is correct. The maximum amount can only be claimed where there are multiple medical assessments up to 60 monetary units.
I have included the conferences and all the disbursements claimed for clinical notes. Without the insurer’s reasons for not including claimed disbursements, I am satisfied the claims are reasonable costs and disbursements. The assessment of costs is contained in the cost’s calculator form.
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