AAI Limited t/as AAMI v Heng
[2023] NSWPIC 358
•13 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Heng [2023] NSWPIC 358 |
| CLAIMANT: | Ron Fok Teng Heng |
| INSURER: | AAMI |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 13 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Damages assessment statutory benefits; contributory negligence; failed to keep any or any proper lookout for approaching vehicles; failed to cross road with due caution and safety; not crossing road by shortest safest route; causing a traffic hazard; moving or obstructing path of oncoming vehicle; pre-accident weekly earnings; variable pre-accident employment history; pelvic fractures, PTSD and depression; breaking distances; visibility of pedestrians; expert liability report; apportionment of culpability for the accident; 35% contributory negligence; future economic loss buffer; travel expenses; Held – duty of care owed to the claimant; breached of that duty of care; claimant sustained injury loss and damage as a result of that breach of duty; damages awarded. |
| DETERMINATIONS MADE: | AMENDED CERTIFICATE 1. I assess the Claimant’s legal costs and disbursements in accordance with the MotorAccident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet in the sum of $64,651.26. 2. On the issue of liability for the claim AAMI’s insured owed a duty of care to the Claimant, breached that duty of care and the Claimant sustained injury loss and damage as a result of that breach of duty. 3. I specify the amount of damages for this claim as $299,707.20 which includes the statutory benefits paid by the insurer. 4. A statement setting out the Commission’s reasons for the assessment is included with this certificate. |
AMENDED STATEMENT OF REASONS
INTRODUCTION
The claimant is a 68-year-old man who was injured whilst crossing Murray Street, Pyrmont and he was struck by the insured’s vehicle. The insurer has admitted breach of duty of care on the part of its insured but is alleging contributory negligence on the part of the claimant of 50%. That is, that the claimant failed to keep any or any proper lookout for approaching vehicles, failed to cross the road with due caution and safety particularly in circumstances where he was wearing dark clothing, that the claimant did not cross the road by the shortest safe route, that he caused a traffic hazard by moving into or obstructing the path of the vehicle including by remaining on the road after he dropped his mobile phone and that he crossed the road at an unsafe location.
It was submitted on the part of the claimant that whilst the finding of contributory negligence may be appropriate it ought to be less than 50% and in the order of 20%.
The insurer has made payments to the claimant to compensate him for the loss of his pre-accident weekly earnings. These payments, including tax (Fox v Wood) total $276,608.35.
The parties have agreed that the total calculation of past economic loss, including any Fox v Wood payments, and without deduction of anything for contributory negligence, totals $311,088.
Accordingly, the matters requiring assessment are limited to what extent, if any, ought the claimant to be found to have contributed to his injuries (contributory negligence) and what allowance ought to be made for future economic loss and a claim for future travel expenses.
The claimant
The claimant in an IT professional who has generally worked as a consultant providing software design and maintenance services. He is a married man who resides in Melbourne and sustained his injuries whilst staying in Sydney on business. The nature of this business was not stated nor was he questioned about it. He was questioned extensively at the assessment conference as to the circumstances of the accident, the documentary material relied on in this matter and his medical condition. I found the claimant to be an honest and forthright man who readily agreed with most of the propositions put to him. In respect to his credibility, whilst I generally found him to be a witness of truth he provided accurate answers to questions. He did agree that in the claim form which he completed in this matter he noted that he was earning $7,908.00 per fortnight at the date of accident was incorrect. He had not worked since 9 December 2018, that is some 3 months before the accident, and was not in paid employment at the time of the accident. When this was put to him, he agreed that it could fairly be described as a mistake.
Further, the claimant was taken to his CV. It noted that he had ceased his employment in March 2019, that is about the time of the motor vehicle accident. He agreed that “it was a mistake” and that in fact he had stopped his work with the Department of Human Resources in December 2018.
Whilst the claimant contends that his employment was very lucrative, and submissions were put on behalf of the claimant alleging an ongoing economic loss of about $1,430 per week net, in fact his employment history was far more sporadic than that which was submitted.
In the years before the accident, and whilst he was working as a consultant, his income was quite significant. That said, there are significant periods in which he did not work. In particular between March 2012 and August 2014. Similarly, upon the cessation of his employment in April 2017 he was off work for a further 15 months till about July 2018. During this period he was “looking for work”.
Whilst I concur with the submissions that whilst only working for about 6 months in the financial year 2018/19 he earned about $102,000 I also note that his pre-accident employment history can best be described as sporadic. These matters will have a significant bearing on the calculation of the future economic loss noting the very significant differences between the submissions of the parties.
Medical material
Noting the claimant’s age and the injuries he sustained I note there is something approaching a consensus position in respect to his impaired earning capacity to work.
After being struck by a motor vehicle he was hospitalised for 3 months noting significant bruising around the gluteal region, injuries to the right shoulder and pelvic fractures.
Whilst the claimant readily agrees his physical injuries have healed moderately well and noting the assessment of Clive Kenna dated 29/05/2022 that there was a 0% whole person impairment, it was the claimant’s psychological or psychiatric disabilities which are most responsible for his economic loss.
The report of Dr Dias dated 28 February 2023 notes that the claimant:
“continues to suffer with ongoing symptoms of posttraumatic anxiety and depression as a result of his involvement in the subject accident”
He remains under the care of Dr T. Lim who has been providing certificates every 3 months noting, basically, an inability to return to any type of employment.
The report of Dr Anand dated 21 June 2023 similarly notes the claimant would have some impairment in returning to work.
I accept the tenor of the medical material that the claimant does have an impairment for work. This is notwithstanding the claimant agreed at the assessment conference, that he has made a significant recovery in respect to his physical injuries. In respect to his psychological or psychiatric injuries, he has not been prescribed any anti-depressant medication, he has not been referred to a psychiatrist or psychologist, and he is in receipt of very limited treatment other than reviews by his GP, in respect to the injuries he sustained.
Contributory negligence
The circumstances of the accident are not in dispute. The claimant was leaving a corner store to return to his hotel. It was at night. It was raining. He was wearing dark clothing. He was walking diagonally across Murray Street, opposite the Ibis Hotel, in the direction of the Novotel Hotel. He states that at the time of crossing onto the street the road was clear of traffic. That is, he has no recollection of any vehicles being in the vicinity such as would impede his crossing the road.
During the course of crossing the road, in a diagonal manner, and whilst he was about halfway across the road his mobile phone fell from his pocket. The reason for this is not explained. He then went to pick up his mobile phone, saw taxi cab moving towards him from south to north on Murray Street and this caused him to step back to move out of the way of the oncoming taxi towards the eastern side of Murray Street. At this point a vehicle travelling from north to south on Murray Street collided with the claimant. That is, the insured’s vehicle. The statement of the insured, which is accepted by both parties, is that the driver did not see the claimant until she was too close to him to stop. She states:
“I slammed on the brakes but he was already in front of my car and I hit him, he rolled off the front of my car to the left. I was driving about 40-50km/h at the time”.
There were expert reports from both parties addressing the allegations of contributory negligence. In particular there were discussions about the visibility, braking distances and how visible the claimant was at the time moving from a crouching position to an upright position.
I did not find either the reports of William Keramidis dated 12 October 2021 nor the report of Veryfact Investigations of 26 February 2021 and 22 April 2021 to throw much light on the allegations of contributory negligence made in this matter. That is the facts seem very straight forward. The claimant was in the middle of the road, he dropped his mobile phone, he did not look down the side of the road in which he was stepping onto. He stepped into the path of a moving vehicle. He did not cross straight across the road but was rather walking in a diagonal line across the road, thereby remaining on the road for longer than would otherwise be the case. He was clearly not keeping a thorough and proper lookout whilst crossing the road as there was an unimpeded view both north and south across Murray Street, which, had he been watching, would have allowed him to see not only the taxi which he took steps to avoid but also the insured’s vehicle coming the opposite direction. He did not have his personal effects secure and further put himself in danger by stopping to pick up his mobile phone whilst in the middle of the road. Clearly the claimant contributed to his injuries by his conduct in the time leading up to the accident.
The question of the apportionment of culpability for the accident is a somewhat inexact science.
The insured driver ought to have seen the claimant as he was crossing the road and stopped in the middle of the road (to pick up his mobile phone) whilst she was driving towards him and she simply did not see him until it was too late. She was inattentive. In her statement she notes the existence of other pedestrians at the time. She was aware that it had been raining. She ought to have been more aware of all the contingencies around her and been more attentive to what was in front of her. For this reason she struck the claimant and for this reason liability on her part has been admitted. That said, the claimant must also bear some responsibility for it. He did not keep a proper lookout. He dropped his mobile phone and, rather than ascertaining it was safe to stop in the middle of the road before picking it up, he took steps to pick it up. This led to him being in a dangerous position for longer than he ought to have been. He was inattentive to the oncoming vehicles.
He was wearing dark clothing. He ought to have been aware that he would have been difficult to see in such circumstances. He was crossing the road in a diagonal manner rather than straight across the road. This led him to be in a position of danger for longer. He has some responsibility for his own safety and he did not meet this responsibility particularly in so far as his being on the lookout for ongoing cars which, quite reasonably, were traversing the road.
I find the claimant to be contributed to his injuries through his own negligence. In the circumstances where he is probably more than one third at fault whilst the insured driver could be fairly be described as less than two thirds at fault.
Accordingly, an appropriate figure for contributory negligence is 35%. All damages, including past economic loss accordingly must be reduced by 35%.
Future economic loss
The claimant is 68 years old and it was submitted by the insurer that he had essentially finished his time in the work force. This was contradicted by the claimant who stated an intention to work “up until at least 75 years of age”.
At the assessment conference he stated, when pressed that:
“if not for the accident I could have secured another 4 or 5 years of work.”
The claimant’s confidence from this comes from what could fairly be described as niche position in the IT world. He fitted and maintained old computer programs for government organisations who did wish to maintain their existing software rather than go to the expense and training of totally new software programs. This allowed him to continue to contract to organisations to provide IT support on an ongoing basis by having a somewhat specialised skillset.
I accept the claimant had an intention to continue to work. Further I accept the claimant had work opportunities which, but for the impact of the motor vehicle accident the result and time off work and the impaired capacity for employment which it has caused, he would have continued to work, as a contractor, for some period of time.
Calculating any future economic loss is a most inexact science. Firstly, the claimant’s earning capacity has not been completely destroyed. Whilst he is 68 years of age there are still some types of employment he could pursue. That said, such capacity has not been investigated.
Secondly, the claimant was not working at the time of the accident. Indeed he spent more time between contracts than he did performing them. That said, the rates of pay in performing such contracts was lucrative as indicated by his pre-accident earnings which, at times, were in the order of $200,000 per annum gross.
Even were the claimant to have sought to work for 3-6 months a year for the next 4-5 years at his pre-accident contract rates this would result in earnings of between $50,000 and $100,000 per annum. Accordingly, but also noting the significant vicissitudes which ought apply when seeking to calculate the vicissitudes which ought to apply to a loss of earning capacity which would go to about 72 or 73 years of age I consider that, consequent on the motor vehicle accident, the claimant has probably suffered a loss of earning capacity which could loosely be reflective in a figure of about $1,000 per week for between 4 and 5 years. This figure ought to be reduced for vicissitudes by a figure of about 25% to take into account the age of the claimant and sporadic nature of his employment.
Using these calculations I assess the claimant’s loss of future earning capacity, noting it is a most inexact science, in the sum of $150,000.
I note the claimant did not receive superannuation and none is claimed.
Travel expenses
The claimant sought some allowance for travel submitting “something in the order of $25,000 would be reasonable in the circumstances”. I note his travel is minimal seeing only his GP every 3 months which was to obtain medical certificates to claim full statutory benefits. There has been very limited other treatment. There is no material upon which a claim for travel expenses can be made other than his statement that he:
“Travel wise, I travel 6 or 7 kilometres (say 12 to 15 kilometres each week) to get treatment”.
This statement of itself does not give rise to a claim for travel expenses. Without any further material as to whether or not this is likely to continue in the future, whether it was only to obtain medical certificates or any further information about where, when, how or why this treatment was being sought, does not give rise a claim for travel expenses which can be either calculated nor allowed for in the future. It may well be that travel to a GP, which I presume it is, is solely to see the GP and not for other tasks or activity.
I decline the claim for travel expenses.
Assessment of Damages Summary
I assess the claim as follows on the findings set out above:
Economic losses
·Past loss of earnings (incl. superannuation and Fox v Wood) $311,088.00
·Future loss of earnings (incl. superannuation) $150,000.00
Total of economic losses and non-economic loss $461,088.00
Less 35% $161,380.80
Total Damages Assessed $299,707.20
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
Statutory benefit payments $276,608.35
Conclusion
Costs and Disbursements
I assess the Claimant’s legal costs and disbursements in accordance with the MotorAccident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet in the sum of $64,651.26.
On the issue of liability for the claim AAMI’s insured owed a duty of care to the Claimant, breached that duty of care and the Claimant sustained injury loss and damage as a result of that breach of duty.
I specify the amount of damages for this claim as $299,707.20 which includes the statutory benefits paid by the insurer.
Legislation
In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017
·Motor Accident Injuries Regulation 2017
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