CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Park v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 225	
		
Claimant:	Young Nam Park	
		
insurer:	IAG Limited t/as NRMA Insurance	
		
Member:	Elyse White	
		
DATE OF DECISION:	2 May 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Assessment of damages; liability wholly admitted; claimant 79 years old; assessed at the Commission not greater than 10% whole person impairment; claimed working part-time for cash; no supporting evidence; disclosed on claim form not working; told treating medical professional not working; claim lacked substance; Held – claim dismissed pursuant to section 54(b) of the Personal Injury Commission Act 2020.
 	
determinations made:	CERTIFICATE
1.	Pursuant to the Personal Injury Commission Act 2020 the claim is dismissed. Costs and disbursements are assessed in the sum of $8,914.73.

STATEMENT OF REASONS
introduction
1.	The claimant, Mr Young Nam Park, says he was injured in a motor vehicle crash on 
20 May 2019.  Mr Park has made a claim for common law damages against IAG Limited t/as NRMA Insurance (insurer) the insurer.
2.	In his first statement, Mr Park gives no information about when or where the accident occurred.  Two further statements give no further information about the accident.
3.	However, his claim form reports he was travelling along Fitzwilliam Road towards Old Windsor Road when the insured driver hit the left side of his car.
4.	In submissions dated 7 March 2024, the insurer confirms liability has been admitted and there is no allegation of contributory negligence.
5.	The insurer says Mr Park’s claim for damages should be dismissed.  In the alternative, the insurer submits there would be no award of damages in this claim.
ASSESSMENT CONFERENCE
6.	At a preliminary conference on 1 February 2024, the claim was listed for an AVL Assessment Conference.
7.	There was no appearance by the claimant and after hearing submissions from both legal representatives, I adjourned the assessment with directions and published an Interim Assessment Conference Report.
8.	As a result of my directions, the claimant submitted a supplementary statement dated 
25 March 2024.  In response to this statement, the insurer relies on further submissions dated 27 March 2024.
SHOULD THE CLAIM BE DISMISSED
9.	As a dispute arose between the claimant and the insurer about the percentage of Mr Park’s whole person impairment (WPI), two applications were made to the Personal Injury Commission (Commission).
10.	The first dispute was referred to Medical Assessor Sally Preston on 1 August 2023.  This assessment concluded Mr Park aggravated pre-existing degenerative change to his cervical and lumbar spine which give rise to a permanent impairment of 5%.

11.	The second dispute was referred to Medical Assessor Wayne Mason on 31 October 2023.  Medical Assessor Mason determined Mr Park had sustained an adjustment disorder with mixed anxiety and depressed mood which give rise to a permanent impairment of 6%.
12.	Neither of these certificates issued by the Commission entitle Mr Park for damages for non-economic loss.  
13.	Mr Park is presently 79 years old.  At the time of the accident, he was 74 years old.
14.	He says in his statement he has run his own businesses which included a cleaning business and running his own restaurant.  He says he retired in 2014.  He receives an aged pension.
15.	In his supplementary statement, Mr Park says after he retired, he continued to work part-time.  He says he did casual work in a restaurant and at a mechanical shop.  He also performed handyman work for friends.
16.	He estimates he was paid between $150 and $200 in cash at the restaurant and $200 each time he worked in the mechanical shop.  He was paid cash for the handyman work.
17.	He is seeking damages for past and future economic loss, and superannuation.
18.	There are no supporting documents to support Mr Parks claim he was receiving an income before this accident.  There are no records from Centrelink confirming his disclosure to the department that he was receiving an income at the same time as receiving an aged pension.  It may well be the case that he is permitted to earn this income without impacting his pension.  Of concern is his failure to disclose this to the Commonwealth Department.
19.	He has no statements from the restaurant, mechanical shop, or friends to confirm his evidence.  He failed to appear at the assessment conference where his evidence could have been tested by the insurer.
20.	In his Personal Injury Claim Form, Mr Park completed the work details section. He disclosed he was not working.  
21.	This information changed when he presented his first statement dated 20 May 2022, which is unsigned.  He says he worked in his friend’s restaurant “…when they lacked workers”.  He says he was paid $100 to $200.
22.	In the next paragraph he says he worked one or two days a week as a handyman because of his technical background doing machinery and electrical work earning “…a few hundred dollars per week”.  
23.	Mr Park made this statement nearly two years ago.  He has had ample time to provide evidence to the Commission to support these earnings.
24.	The insurer has suggested Mr Park is an unreliable witness due to the inconsistencies contained in his material.  An example is the report in the claim form that he was not working at the time of the accident and his subsequent statements he was earning cash from a restaurant and handyman jobs.
25.	I do not agree with this submission.  English is not Mr Park’s first language.  He is not a young man.  He has done his best to communicate and provide information.  He attended the appointments arranged in the Commission.  He attended medical examinations arranged by his solicitor and the insurer’s medical professionals.  He did his best to give an honest history.
26.	However, without supporting evidence of his earnings post-accident, I am not persuaded he was in receipt of legitimate wages after he retired.  Mr Park could have provided to me a brief statement from the restaurant owner and/or the machinery shop owner.
27.	He did not disclose any earnings on his contemporaneous claim form signed on 6 June 2019 a few weeks post-accident.
28.	This position is further supported in his treating psychologist Dr Kim’s clinical notes and her reports Mr Park gave a history he was not working at the time of the accident.
29.	The insurer requested particulars from Mr Park to give him the opportunity to provide material to support his claim for economic loss.  Nothing was forthcoming.  
30.	The Personal Injury Commission Act 2020 (PIC Act) provides for the dismissal of proceedings as follows: -
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it--
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
31.	The claim lacks substance.  Mr Park retired in 2014.  At the time of the accident, he was at least seven years post-retirement age.  Without supporting evidence, I am not persuaded he continued to earn after retirement and up to the date of this accident, I dismiss his claim.
32.	Pursuant to s 54(b) of the PIC Act I dismiss Mr Park’s claim.
COSTS AND DISBURSEMENTS
33.	Mr Park’s legal representative has lodged a submission for costs and disbursements.
34.	The insurer has replied to this claim.  
35.	I assess the costs and disbursements with reasons as follows.
36.	The claim for Stage 1 and Stage 2 are agreed.  I agree there should be no allowance for conferences or appearances.  The claimant failed to appear at the assessment conference and there was no appearance at the preliminary conference on 1 February 2024.  No allowance is made for conferences or appearances.
37.	There were two medical applications to the Commission which are assessed in accordance with the regulations.
38.	Dr Conrad’s disbursement is included as is Dr Kim.  The claim for clinical notes is reasonable.  The claim for photocopying is not reasonable as lodgement on the portal does not require a hard copy.  Postage is not a reasonable claim.
39.	The costs and disbursements assessed are included in the Costs Calculator.