Dolbel v Allianz Australia Insurance Limited [2025] NSWPIC 290 (23 June 2025)

[10] The insurer, in reference to Stuttard v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 45 at [81], submits that previous awards for this head of damages can be of some guidance.

Scott v AAI Limited t/as GIO [2023] NSWPIC 509: The claimant, aged 45, was awarded $300,000 for non-economic loss. He underwent multiple surgeries, had several months off work before returning with restrictions, and experienced ongoing permanent disabilities, including both physical and psychological symptoms.

Zjacic v AAI Limited t/as GIO [2024] NSWPIC 105: The claimant, aged 47, was awarded $300,000 for non-economic loss. He suffered from PTSD and a Major Depressive Disorder, with no treatment likely to improve his prognosis.

Walters v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 543: The claimant, aged 23, was found to likely require fusion surgery for a displaced L3 fracture and non-displaced L4 fracture. She had also endured inpatient admission due to severe PTSD, with the prognosis for that 'most guarded'. She was awarded $375,000 for non-economic loss.

Beaty v QBE Insurance (Australia) Limited [2024] NSWPIC 695: The claimant, aged 60, had endured multiple periods of hospitalization, including seven surgical procedures, with more indicated. He also struggled with psychological symptoms and was accepted to have barely left the house. He was awarded $375,000 for non-economic loss.

Brown v AAI Limited t/as AAMI [2025] NSWPIC 103: The claimant, aged 65, was awarded $375,000 in circumstances where her psychological and physical injuries had caused a significant change in her life circumstances, rendering her totally unfit for work and leading to social isolation.

Horsley v QBE Insurance (Australia) Ltd [2022] NSWPIC 387: The claimant suffered severe injuries to his right leg, including a tibial plateau fracture, meniscal injuries, ligament ruptures, and dislocation requiring reduction, along with post-traumatic stress disorder. Member Radnan awarded $400,000 for non-economic loss.

Judges v AAI Ltd t/as GIO [2021] NSWPIC 538: The claimant sustained several fractures, primarily to his right lower limb, accompanied by some psychological symptoms. Member Medland awarded $375,000 for non-economic loss.

Issa v QBE Insurance (Australia) Ltd [2022] NSWPIC 517: The claimant experienced neck injuries, including radiculopathy symptoms, along with psychological symptoms, without undergoing surgery. Member Castagnet awarded $350,000 for non-economic loss.

Kindi v AAI Ltd t/as GIO [2023] NSWPIC 254: The claimant suffered a compound fracture of his left leg, underwent various surgeries, and sustained injuries to his lower back, both shoulders, and knees, with psychological overlay. Member Patterson awarded $450,000 for non-economic loss.

Harrison v AAI Ltd t/as GIO [2023] NSWPIC 313: The claimant suffered soft tissue injuries to her left leg, left shoulder, back, and neck, along with post-traumatic stress disorder. Member Broomfield awarded $400,000 for non-economic loss.

Pearce v AAI Ltd t/as AAMI [2023] NSWPIC 595: The claimant sustained injuries to his right knee, hand, foot, ankle, shoulder, and elbow, involving significant scarring and chronic post-traumatic stress disorder. Member Ford awarded $380,000 for non-economic loss.

1. Mrs Dolbel was, at the time of this accident, a somewhat vulnerable person who was susceptible to the impact of significant trauma of a psychological nature as in fact happened to her and described by Dr Chaudry. (See Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 where the primary judge applied the Common Law principle of eggshell skull).
2. The tortfeasor had to take the claimant as it found her. This case is an illustration of the 'eggshell skull' principle.
3. This accident was clearly a significant accident and a very traumatic accident for

1. The fundamental principle for assessing or awarding damages to an injured person is that a Tribunal should assess damages so that they represent no more nor less than the persons' actual loss: Livingstone v Rawyards Coal Co [1880] UKHL 3.
2. Damages for personal injury are given on a once and for all basis irrespective of whether the person's condition worsens or improves.
3. In cases such as Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined is whether a claimant has sustained a loss or diminution in earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard for the provisions of Div 4.2 of the MAI Act.

1. In IAG Ltd t/as NRMA Insurance v Damian Mares [2016] NSWSC 1792, Hall J said this with respect to the correct assessment of future economic loss:

(b) the following formulation, which was approved by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61, applies [para 69]:

1. Basten JA delivering the judgement of the Court also reproduced the assumptions about future earning capacity at [31] and other events as noted in Nominal Defendant v Livaja [2011] NSWCA 121 at [41]:

1. There is considerable authority on the meaning of "most likely future circumstances" discussed by McClellan AJA in Penrith City Council v Parkes [2004] NSWCA 201.
2. Working out the most likely future circumstances of a claimant, but for the injury, involves the Court assessing the prospects of the claimant gaining or remaining in employment, or earning income from self-employment. It has been held that "most likely" is not the same as the balance of probabilities.
3. Rather than establishing the most likely circumstances as a matter of balance of probabilities, the Court is required to look at the range of possible outcomes which may have occurred had the claimant not been injured, and to assess the future economic loss on the basis of whatever of those scenarios is most likely to have occurred.
4. In this particular case, it is impossible to determine with precision what the future circumstances as to economic loss would have been.
5. The reasons why this is so, is due to a combination of a number of factors, but the most significant would be the following:

1. This is a case where I cannot determine the total of the past and future economic loss with precision, and it is therefore my intention to determine a buffer. In doing so, I will take into account vicissitudes in respect of the future, and will build in a reduction of 15% into the future component of the buffer.
2. The authorities which permit me to assess a buffer in circumstances where a loss is likely but the amount cannot be determined with precision are: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302, Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579; QBE Insurance (Australia) Ltd v Volokhova [2014] NSWSC 726, IAG Limited t/as NRMA Insurance v Al-Kilany [2017] NSWSC 342 (30 March 2017), Sretenovic v Reed [2009] NSWCA 280 per McColl JA at paras 79-86, Allianz Australia Insurance Limited v Sprod (2012) 81 NSWSC 626, Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 (16 September 2014) and Allianz Australia Insurance Limited v Zein [2016] NSWSC 196; IAG Limited v Priestley [2019] NSWSC 1185 per Fagan J (criticising at [24] the decision to award a buffer for future economic loss devoid of explanation where the assessor had said that he had taken into account a number of variables but did not quantify them in his assessment of the buffer nor did he determine the claimant's most likely future career alternatives or make any findings as to her weekly work hours and the reduction of same as a result of her impairment).

(1982) 43 ALR 280

(1968) 119 CLR 118

(2012) 83 NSWLR 302

(1979) 26 ALR 235

(1995) 182 CLR 1