AAI Limited t/as GIO v Costello

[2024] NSWPIC 419

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as GIO v Costello [2024] NSWPIC 419
CLAIMANT:	James Costello
INSURER:	GIO
MEMBER:	Hugh Macken
DATE OF DECISION:	6 August 2024
CATCHWORDS:	MOTOR ACCIDENTS - Settlement approval; damages; no entitlement to non-economic loss; loss of business opportunities; impaired earning capacity; variable future earnings; calculations of weekly profit; international opal market; Held – proposed settlement approved.

STATEMENT OF REASONS

INTRODUCTION

1. JAMES COSTELLO (THE CLAIMANT) IS A 62-YEAR-OLD MAN WHO IS THE COMPANY DIRECTOR OF COSTELLO’S OPAL DISCOVERY CENTRE. HE WAS, AT THE TIME OF THE ACCIDENT, A FIT MAN WITH NO PRE-EXISTING PROBLEMS OR DISABILITIES SUCH WOULD INTERFERE WITH HIS WORKING CAPACITY.

2. ON 8 AUGUST 2023 HE WAS RIDING HIS BICYCLE WHEN THE INSURED DRIVER DROVE OUT FROM HIS DRIVEWAY AND COLLIDED WITH THE CLAIMANT. THE INSURER HAS ADMITTED BREACH OF DUTY OF CARE ON THE PART OF ITS INSURED WITH NO ALLEGATION OF CONTRIBUTORY NEGLIGENCE. HE SUSTAINED AN INJURY TO HIS TEMPOROMANDIBULAR JOINT (TMJ), SIGNIFICANT FACIAL LACERATIONS, FRACTURES RIBS, AN UN-DISPLACED FRACTURE OF THE POSTERIOR RIGHT ILIAC WING, AN INJURY TO THE RIGHT ANKLE, AN INJURY TO THE RIGHT WRIST WHICH WERE IDENTIFIED AS HIGH-GRADE ULNAR TEAR OF THE TRIANGULAR FIBROCARTILAGE COMPLEX AND FULL AND PARTIAL THICKNESS TEARS TO MULTIPLE LIGAMENTS TO THE RIGHT WRIST. HE SUFFERS FACIAL SCARRING AND CONTINUES TO SUFFER PAIN TO THE JAW, RIGHT WRIST AND RIGHT ANKLE AND DISABILITIES ASSOCIATED WITH THE INJURIES TO HIS RIGHT WRIST AND RIGHT ANKLE.

3. THE PARTIES HAVE AGREED ON A SETTLEMENT FIGURE OF $354,719.82 WHICH INCLUDES THE PRE-ACCIDENT WEEKLY EARNINGS PAID BY THE INSURER TOTALLING $71,452.62. THE CALCULATION INCLUDES THE WHOLE OF THE CLAIM FOR PAST-ECONOMIC LOSS MADE BY THE CLAIMANT ($185,678) TOGETHER WITH THE FOX V WOOD (TAX ON PAST WEEKLY PAYMENTS MADE BY THE INSURER) TOTALLING $19,041.82 TOGETHER WITH A BUFFER FOR FUTURE ECONOMIC LOSS AT $150,000.

4. THE CLAIMANT WAS EMPHATIC THAT HE WISHES THE SETTLEMENT TO BE APPROVED. THE INSURER CONCURRED.

THE CLAIMANT

1. THE CLAIMANT IS A REMARKABLE MAN WHO HAS SHOWN ENORMOUS STRENGTH AND RESILIENCE IN RECOVERING WELL FROM MULTIPLE PROFOUNDLY SERIOUS AND SIGNIFICANT INJURIES. WHILST THE INJURIES WERE SUSTAINED AT A VERY DAMAGING TIME FOR HIS BUSINESS, (HAPPENING AS IT DID AT THE TIME OF THE FIFA WOMEN’S WORLD CUP BEING STAGED IN SYDNEY). THE EFFECT OF THIS WAS TO GREATLY REDUCE THE OPPORTUNITIES AVAILABLE FOR SELLING HIGH QUALITY AND HIGH QUANTITY OPALS DURING A TIME OF SIGNIFICANT TOURIST INFLOW INTO SYDNEY).

2. THAT SAID THE CLAIMANT HAS APPLIED HIMSELF REMARKABLY, RECOVERING FROM HIS PHYSICAL INJURIES AND MAINTAIN THE VIABILITY OF HIS BUSINESS ALBEIT WITH AN ADVERSE EFFECT ON HIS PRE-INJURY EARNINGS.

MEDICAL MATERIAL

1. THE INSURER OBTAINED A REPORT FROM DR R MITCHELL DATED 4 MARCH 2024 WHICH, SOMEWHAT UNREASONABLY, DIAGNOSED THE CLAIMANT AS HAVING A 1% WHOLE PERSON IMPAIRMENT (WPI) CONSEQUENT ON THE FACIAL SCARRING.

2. THIS REPORT IS, IN MY VIEW, COMPLETELY UNSATISFACTORY. HE IDENTIFIES SIGNIFICANTLY REDUCED ANTERIOR TRANSLATION IN THE TMJ BUT ALLOWS NO IMPAIRMENT CONSEQUENT ON THIS. HE IDENTIFIES CONTINUED PAIN IN THE RIGHT WRIST AND LOSS OF RANGE OF MOTION OF THE RIGHT WRIST BUT ALLOWS NO IMPAIRMENT FOR THIS. HE IDENTIFIES PAIN IN THE RIGHT ANKLE, LIMITED WALKING CAPACITY AND CYSTIC CHANGE OF THE MEDIAL TALAR DOME BUT ALLOWS NO IMPAIRMENT CONSEQUENT ON THIS. HE ADVISED THE CLAIMANT TO AVOID PROLONGED WALKING OVER UNEVEN OR SLOPING GROUND AND AVOIDING ARDUOUS OR REPEATED RIGHT HAND GRIPPING ACTIONS BUT SIMPLY DECLINES TO MAKE ANY ASSESSMENT OF EITHER UPPER OR LOWER EXTREMITY IMPAIRMENT. NOR IS THERE ANY RATIONALE AS TO WHY SIGNIFICANT FACIAL SCARRING (THE CLAIMANT HAD IN EXCESS OF 70 STITCHES INSERTED ACROSS HIS JAWLINE) WOULD ONLY GIVE RISE TO 1% WPI.

3. FOR ALL THAT THERE IS, IN MY VIEW, SOME PROSPECTS THAT THE CLAIMANT WOULD, WERE HE TO BE ASSESSED, BE FOUND TO HAVE A WPI GREATER THAN 10%. THAT SAID, IN THE YEAR SINCE THE ACCIDENT, HE HAD APPLIED HIMSELF DILIGENTLY AND MADE A REMARKABLE RECOVERY.

4. THE MOST TELLING MEDICAL MATERIAL IN SUPPORT OF THE INSURER’S POSITION OF NO ENTITLEMENT TO NON-ECONOMIC LOSS IS THAT OF HIS PHYSIOTHERAPIST, ANDREW FLETCHER. HE STATED IN CORRESPONDENCE DATED 7 MARCH 2024, “I AM HAPPY FOR HIM TO RESUME ALL PREINJURY ACTIVITIES AS HE FEELS FIT”. HE STATED THAT THE CLAIMANT “HAS RESTORED FULL RANGE OF MOTION IN HIS R-HIP AND R-ANKLE. HE HAS ALSO RESTORED STRENGTH TO NORMAL LIMITS IN R-LEG AND R-ARM”.

5. THIS IS MUCH A TRIBUTE TO THE CLAIMANT AS TO THE MEDICAL ASSISTANCE HE HAS RECEIVED.

APPROVAL

1. I AM SATISFIED THAT THE CALCULATION FOR PAST ECONOMIC LOSS, COMING AS IT HAS BEEN THE FIGURE IDENTIFIED BY THE CLAIMANT’S ACCOUNTANT, IS APPROPRIATE. IN RESPECT TO FUTURE ECONOMIC LOSS, I NOTE THE BUFFER PROPOSED OF SOME $150,000 IS LESS THAN HALF THAT IDENTIFIED BY THE CLAIMANT’S ACCOUNTANT IN RESPECT OF POSSIBLE FUTURE LOSSES. THAT SAID THE CLAIMANT’S ACCOUNTANT IDENTIFIES AN ONGOING CAPACITY FOR ONGOING WORK OF ABOUT 20%. THE CLAIMANT IS, IN MY VIEW, UNRESTRICTED IN RESPECT TO THE EFFORTS AND APPLICATION HE CAN BRING TO THE WORK. THAT SAID HE HAS LOST SIGNIFICANT BUSINESS OPPORTUNITIES AND MUST REBUILD THE BRAND AND ITS REPUTATION. THESE FIGURES ARE SOMEWHAT DIFFICULT TO CALCULATE, AND I CAN SEE THERE IS A LIKELIHOOD THAT SUCH LOSSES WILL CEASE AS TIME GOES BY. IN ANY EVENT THEY DO NOT LEND THEMSELVES TO SPECIFIC CALCULATION. A BUFFER OF $150,000 IS, IN MY VIEW, A FAIR REFLECTION OF THE NET LOSS ASSOCIATED WITH THE INTERFERENCE OF THE CLAIMANT’S BUSINESS COMING AT THE TIME THAT IT DID, DURING A SIGNIFICANT INTERNATIONAL EVENT IN SYDNEY.

2. FINALLY, I NOTE THAT THE CLAIMANT, IS A SELF EMPLOYED INDIVIDUAL, DOES NOT HAVE ANY ENTITLEMENT TO EMPLOYER SUPERANNUATION CONTRIBUTIONS AND ACCORDINGLY THESE DO NOT NEED TO BE FACTORED INTO ANY SETTLEMENT DISCUSSIONS OR CALCULATIONS IN MY CONSIDERATION OF THE APPROVAL BEFORE ME.

3. I NOTE THAT THE CLAIMANT’S OBSERVATIONS IN RESPECT TO THE MANNER IN WHICH HIS CLAIM IS BEING DEALT WITH BY THE INSURER. IT HAS BEEN EXEMPLARY. HE HAS LISTENED TO, HIS VIEW TAKEN INTO ACCOUNT, AND HIS SUBMISSIONS AND MATERIAL HAVE BEEN CONSIDERED AND, WHERE NECESSARY THE INSURER HAS REVISED ITS POSITION TO THE POINT WHERE THE SETTLEMENT HAS BEEN ACHIEVED IN LESS THAT 12 MONTHS SINCE THE DATE OF THE ACCIDENT. THIS IS CREDIT TO BOTH PARTIES.

DETERMINATION

1. FOR THE REASONS I HAVE STATED ABOVE I HAVE NO HESITATION IN APPROVING THE SETTLEMENT PROPOSED IN THE DOCUMENTS SIGNED BY THE PARTIES AND NOTE THE MATTERS ARE RESOLVED WITH A SETTLEMENT OF $354,719.82.

LEGISLATION          

1. In making my decision I have considered the following legislation and guidelines:

   ·        Motor Accident Injuries Act 2017, s 6.23 (3), and

   ·        Motor Accident Injuries Regulation 2017, s 7.37.