PERSONAL INJURY UPDATE- RECENT COMPENSATION CASE

Accident Compensation LawThere was a recent decision in the Supreme Court of NSW involving an application by the NRMA Insurance to set aside the decision of a Claims Assessor of the State Insurance Regulatory Authority. The case was IAG Limited trading as NRMA Insurance V. Ozdemir and Ors [2016] NSWSC 756.

BACKGROUND

The proceedings were for personal injuries arising out of a motor vehicle accident which occurred on 2 March, 2012. At that time, Mr Ozdemir was stationary in his motor vehicle at the intersection at Chisolm Road and Mona Street at Auburn waiting for the lights to turn green. The motor vehicle driven by the NRMA Insured driver drove through the intersection and attempted to make a right hand turn into Chisholm Road. The insured driver lost control of his vehicle and collided with the vehicle being driven by Mr Ozdemir.

Mr Ozdemir (the plaintiff) was in good health at the time of accident and was working full time as a forklift driver.

The Plaintiff stated he suffered injuries to his neck, left shoulder, upper back and thoracic spine which aggravated pre-existing injuries. The plaintiff had been involved in a prior motor vehicle accident in 2002 in which he had sustained lower back and neck injuries which had been the subject of an earlier claim for compensation.

It became apparent the CTP Insurer was concerned about the pre-existing injuries suffered by the plaintiff in this earlier motor vehicle accident in 2002. The plaintiff had returned to work after the earlier accident but had suffered on-going difficulties and was off work from time to time as a result. Furthermore, working as a forklift driver had contributed to his shoulder and neck problems and a workers compensation claim had been made in respect of a work place injury which occurred on 9th October 2009. Subsequently the plaintiff underwent shoulder surgery in 2010.

The plaintiff was able to return to full time work in late December 2011. As a consequence of the injuries sustained in the subject motor vehicle accident in March 2012, these injuries led the plaintiff to be dismissed from his employment as a forklift driver and he had been unemployed since then.

The Plaintiff made a claim for loss of income and injury to his capacity to work, past and future treatment expenses and past and future domestic care. The plaintiff’s injuries were not in excess of the 10% Whole Person Impairment threshold under the AMA (Fourth Edition) guidelines and accordingly, the plaintiff was not able to make a claim for non-economic loss (pain and suffering).

The CTP insurer admitted liability and the only issue in dispute was quantum of damages. However the insurer also took issue with the credit of the plaintiff.

The Claims Assessor after conducting a General Assessment Conference and after receiving submissions from both parties assessed the plaintiff’s damages at $882,131.00 plus legal costs were assessed at $55, 583.00. The reasons for the award were quite detailed and comprised 34 pages.

The CTP insurer made a number of contentions in their submissions that the Assessor had made a number of jurisdictional errors and alternatively errors of law on the face of the record in the course of making his decision. In summary, it was contended the Claims Assessor had made two errors. Firstly being an error in failing to deal with significant aspects of the plaintiff’s case and an error in failing to provide proper and lawful reasons for his Assessment.

Justice Wilson gave quite a detailed judgement and quoted at length from the Claims Assessor’s reasons.

It is now worth quoting paragraph 64 of Her Honour’s decision where she states as follows:

64.   It is clear that the Assessor fully understood the point of contention, and considered the insurer’s submissions in this regard, were simply not persuaded by them or by the medical evidence upon which they were based. Whilst others might have reached a conclusion different to that of the Assessor, I cannot conclude that the Assessor did not deal with the issue at all, or did so inadequately. He dealt with it in the “relatively” brief fashion recognised by the statute and reached a conclusion adverse to the NRMA.”

Furthermore, and more importantly at paragraph 82,  Her Honour states as follows:

“84. There is no obligation on an Assessor to address in the statement of reasons every piece of evidence adduced or every argument advanced by the parties to the claim.”

And in summary, Her Honour, confirms an Assessor “in a statement of brief reasons” as required by the Motor Accidents Compensation Act, is not required to address every argument advanced by the insurer nor does the Assessor have to deal with every aspect of the evidence referred to. It is important the Assessor understand the principle contentions and areas of dispute between the parties to the claim and addresses those issues. The Assessor must set out the conclusions he has reached and his reasons for those conclusions.

At Beilby Poulden Costello, we always ensure in our applications for General Assessment that the submissions, schedule of damages and statements of the claimant and supporting witnesses are detailed and provide the Claims Assessor with all of the information which he or she may require in order to assist them in delivering a sound and properly justified reasons for the award.