Helen Huang
Special Counsel
CTP Insurance, Insurance
Judicial Notice of Cattle Class Challenges
5 February, 2024
In Brief
- Section 4.5(1)(b) of the Motor Accident Injuries Act 2017 (MAIA) states damages for costs relating to accommodation or travel (not being the cost of treatment and care) may be awarded.
- Section 4.7 of MAIA states no allowance may be made for future loss of earning capacity unless the Claimant establishes that the accident has caused a change in his most likely future circumstances.
- A Member may take “judicial notice”, in some circumstances, where the medical evidence has left a gap.
Facts
On 2 February 2024, the Personal Injury Commission published its decision in Noor v Transport Accident Commission [2024] NSWPIC 25.
The Claimant was involved in a motor vehicle accident on 24 April 2018.
As a result of the motor vehicle accident, the Claimant sustained lumbar disc injuries and developed a psychological injury. The Claimant eventually underwent lumbar spine surgery, but the Claimant did not have a good outcome.
The Claimant and the Insurer were unable to agree on the amounts for damages for non-economic loss, past economic loss, future economic loss and travel under section 4.5(1)(b) of MAIA. The Claimant and the Insurer were able to agree on the figure for the calculation of past superannuation, the total amount paid for weekly benefits and income tax paid (Fox v Wood).
The Insurer disputed the Claimant was entitled to claim travel under section 4.5(1)(b) of MAIA.
The Claimant argued that, following the accident, he was able to return to reduced hours but eventually, due to the accident injuries, his employment was terminated in or around March 2019. The Claimant argued he has been totally incapacitated for work and lost the chance to earn higher amounts into the future, as he advanced professionally. The Claimant also submitted he should be awarded a figure of $70,000 for travel under section 4.5(1)(b) of MAIA because he was a regular overseas traveller in the past and his injuries necessitated an upgrade from economy to business class seats.
The Insurer argued that the Claimant retained a significant residual earning capacity of 20 hours per week and relied upon a functional and vocational capacity report. The Insurer also submitted the Claimant was malingering. In respect to the claim for travel under section 4.5(1)(b) of MAIA, the Insurer submitted the claim was not supported by the medical evidence and the Claimant had not established the likelihood of the Claimant undertaking travel where he requires $70,000 worth of upgrades.
The Member’s Reasons
In regard to past economic loss, the Member accepted the injuries sustained in the accident caused a total loss of incapacity.
In regard to future economic loss, the Member accepted it was most likely that, but for the accident, the Claimant would have continued to work as a producer /director.
The Member accepted the motor vehicle accident caused the Claimant to suffer a diminution in his earning capacity, which was supported by the medical evidence. The Member assessed a total incapacity for the remainder of the Claimant’s working life because of the Claimant’s ongoing symptoms and his impaired ability to compete on the open labour market.
The Member did not accept the Insurer had demonstrated the Claimant was hiding an ability to be employed on a sustainable basis and accepted the Claimant’s evidence. The Member awarded a buffer of $150,000 in addition to total incapacity for loss of opportunity.
In regard to the claim for travel under section 4.5(1)(b) of MAIA, the Member accepted there was no medico-legal evidence establishing a need for seating upgrades. Furthermore, the Claimant was not questioned on whether business class travel could mitigate the Claimant’s pain and accommodate his need to stretch, walk and medicate for a long flight.
The Member accepted, however, based on his own experience, and that of others, that long distance travel would be difficult for someone with spinal injuries and that economy seating on an aircraft would involve having to climb across people and sit in cramped seating. This was particularly so because the Claimant was a big man, at 190cm.
Ultimately, the Member accepted that the Claimant’s injuries necessitated an upgrade to the wider seating found in business class. He therefore awarded $28,000 for travel under section 4.5(1)(b).
Key Learnings
In this matter, the parties did not serve any medicolegal evidence to support the claim for travel under section 4.5(1)(b) of MAIA. However, the Member found that an award for travel under section 4.5(1)(b) of MAIA was warranted based on his own experience and based on treating medical evidence of the Claimant’s restrictions. In other words, the Member essentially took “judicial notice” of the difficulties a person with the Claimant’s injuries might encounter on a long-haul flight in economy class and how an upgrade to business might help him.
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.
Additional McCabes Resources
