Agno v Insurance Australia Limited t/as NRMA

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Agno v Insurance Australia Limited t/as NRMA [2023] NSWPIC 375
Claimant:	Chris Agno
insurer:	Insurance Australia Limited t/as NRMA Insurance
SENIOR Member:	Brett Williams
DATE OF DECISION:	21 July 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of damages; liability admitted; claimant operated businesses under corporate entity; claimant assessed as having a permanent impairment in excess of 10%; neck, back, left shoulder, left hip and left wrist injuries together with psychological injury; claimant left handed; pre-accident work included working as a chef in his restaurant; no longer able to work as a chef; replacement labour engaged; insurer disputed entitlement to economic loss where company making a profit; Husher v Husher applied; Held – award of $270,000 for non-economic loss; past and future economic loss assessed on the basis of replacement labour costs; awards for other heads of damage made.
determinations made:	CERTIFICATE 1. Under sub-sections 94(3) and 94(4) of the Motor Accidents Compensation Act 1999, I specify the amount of damages for this claim as $1,060,492.52. 2. The insurer is to pay the claimant’s costs in the amount of $67,687.10 inclusive of GST and disbursements in the amount of $28,797.73 inclusive of GST. 3. Attached to this certificate are reasons for my assessment.

STATEMENT OF REASONS

INTRODUCTION

Chris Agno (claimant) was injured in a motor accident at North Wollongong on 20 May 2017. He subsequently made a claim for damages on the insurer of the at fault driver, Insurance Australia Limited t/as NRMA Insurance (insurer) under the Motor Accidents Compensation Act 1999 (MAC Act). The insurer wholly admitted liability for the claim on 14 August 2017.
These proceedings, by which the claimant referred his claim for damages to the Personal Injury Commission (Commission) for assessment under Part 4.4 of the MAC Act, were commenced on 17 May 2022. The claimant is entitled to damages for non-economic loss. He claims damages for past and future economic loss, past and future out of pocket expenses and past and future care.
Other than the claimant’s oral evidence, the bulk of the evidence relied on by the parties is contained in a joint bundle that comprises over 1,400 pages. In addition to the joint bundle, there is also a bundle of labour hire invoices, a pay slip[1], and a schedule of tax calculations[2].
[1] For the week ending 4 June 2023.
[2] Prepared by Ms Lindsay at the request of the insurer dated 15 June 2023.

ASSESSMENT AND PRELIMINARY CONFERENCES

The proceedings were listed for assessment on 30 November 2022. The claimant gave evidence. No other witnesses were called or required. The assessment was adjourned part heard in circumstances where the claimant sought to re-cast his economic loss claim and clarify his claim for domestic assistance. Directions were made for the provision of submissions by the claimant addressing, among other matters, the ambit of his claim for domestic assistance and the basis upon which he sought an award for economic loss.
At a case management conference held on 23 February 2023 further directions were made in relation to the claimant’s submissions.
On 24 March 2023 a further case management conference was held and directions made for the provision by the insurer of submissions, the claimant’s updated submissions having been provided by that time. The proceedings were subsequently listed for a resumed assessment on 15 June 2023.
The part-heard assessment proceeded on 15 June 2023. The claimant gave further evidence and oral submissions were made on his behalf. Among other matters, the claimant confirmed that he no longer pressed a claim in relation to various loans or for an award for loss of superannuation. The parties agreed that the summary of labour hire expenses recorded in Schedule 5 of Mr Shields’ report dated 6 December 2021 was an accurate summary of the labour hire invoices relied on by the claimant.
On 16 June 2023 I heard the insurer’s oral submissions, and the claimant’s submissions in reply.

INJURY FINDINGS

The insurer agrees that the claimant suffered “reasonably serious” injuries in the accident.[3] It is agreed between the parties[4] that the claimant suffered the following injuries as a result of the accident:
·        neck – soft tissue injury and aggravation of underlying degenerative changes in the cervical spine;
·        back – soft tissue injury and aggravation of underlying degenerative changes in the lumbar spine;
·        left shoulder – soft tissue injury and systematic acromioclavicular joint arthropathy (joint disease);
·        left wrist – soft tissue injury, and
·        psychological injury – adjustment disorder.
[3] Statement of Agreed Facts (AF) dated 20 April 2023 at [1].
[4] AF at [2]-[5] and [9].
I am satisfied on the evidence available to me, and I find, that the claimant suffered the injuries referred to in the preceding paragraph as a result of the accident.
The claimant’s case is that he suffered injury to his left hip as a result of the accident, that he continues to experience pain in his left hip, and that the injury is incapacitating. In his statement of 13 September 2022, the claimant recorded that he experienced left hip pain following the accident, and that the pain persisted. In his oral evidence the claimant stated that he continued to experience left hip pain. The clinical notes from Figtree Surgery record that the claimant attended on 23 May 2017 with a history of having been involved in a motor vehicle accident on 20 May 2017. The consultation note for that attendance records that the claimant complained of (among other things) left hip pain. It is also recorded that walking caused pain in the claimant’s lower back, lateral aspect of his left hip and the back of his left knee. The medical certificate attached to the claim form dated 14 June 2017, completed by Dr Nguyen, records that the claimant was examined on 23 May 2017 and that he suffered, among other injuries, soft tissue injury to his left hip. The clinical notes record that on 21 June 2017 the lateral aspect of the claimant’s left hip was tender, with mild restriction of movements due to pain. An X-ray of his left hip was ordered and an X-ray performed on 22 June 2017. Minor degenerative change was shown. There were no fractures or bone destruction.
Medical Assessor Home, in his reasons dated 19 March 2021, recorded that a soft tissue injury to the left hip was among the injuries referred to him for assessment. He recorded complaints of pain at the lateral boarder of the left hip. The left hip was examined, and active range of movement recorded. Later in his reasons, the Medical Assessor recorded that the left hip complaints had resolved and that there were no current left hip symptoms.
In his report of 1 December 2021, Dr Rosenthal recorded that the claimant had suffered an injury to his left hip as a result of the accident, and that the left hip remained sore without further specific treatment.
I do not accept that the claimant’s left hip symptoms, arising from a left hip injury caused by the accident, have resolved. On balance, I am satisfied that the claimant suffered a soft tissue injury to his left hip as a result of the accident. I accept his evidence that he continues to experience pain in his left hip. I find that, as a result of the accident the claimant suffered a soft tissue injury to his left hip. I find that his ongoing left hip symptoms are attributable to that injury.
With respect to the claimant’s psychological injury, while there is agreement between the parties that he suffers from an adjustment disorder, there is a dispute as to whether the claimant suffers from that condition together with depressed mood.
The claimant was referred to Dr Lavelle, clinical psychologist, by Dr Nguyen, on 28 January 2021, with a history of “anxiety depression” due to the ongoing pain and disability arising from the accident. The mental health care plan attached to the referral records a diagnosis of “[a]nxiety/depression”. An allied health recovery request dated 12 February 2021 records a diagnosis of generalised anxiety disorder and major depressive disorder. It appears that the claimant was in fact treated by Mr Spencer, clinical psychologist, and not Dr Lavelle.[5]
[5] See report of Mr Spencer dated 14 June 2021 and the clinical notes in the joint bundle.
Dr Gertler,[6] psychiatrist, expressed the opinion that the claimant suffers from an adjustment disorder with depressed mood as a consequence of the accident and the physical injuries he sustained therefrom. Dr Vickery, psychiatrist, diagnosed an adjustment disorder that was due to the accident.[7]
[6] Report dated 28 May 2020.
[7] Report dated 17 August 2020.
Medical Assessor Jones, psychiatrist, gave a certificate dated 28 May 2021. The certificate and reasons are not complete. As I apprehend it, neither party sought to rely on the reasons. While the Medical Assessor appears to have found that the claimant suffers from a psychiatric injury as a result of the accident, his diagnosis is not clear.
I prefer Dr Gertler’s opinion. In my assessment, the addition of “with depressed mood” to the diagnosis of adjustment disorder is consistent with the claimant’s reported complaints of sadness, feelings of hopelessness, and loss of professional identity.[8] I find that as a result of the accident the claimant developed an adjustment disorder with depressed mood.

LOSS OF CAPACITY
Evidence
[8] See signs and symptoms recorded in the Allied health recovery request dated 12 February 2021 and Mr Spencer’s clinical notes.

The evidence establishes, and there is no dispute, that prior to the accident the claimant operated a restaurant called “Litani’s” and a chicken shop at Gwynneville. These businesses were conducted through a corporate entity, Agno Investments Pty Ltd (Agno Investments).
An ASIC current and historical organisation extract dated 31 October 2022 records that Agno Investments was registered on 2 October 2014. It is also recorded that the claimant is the only director and shareholder of the company.
The claimant’s updated statement dated 13 September 2022 records that in the period leading up to the accident he was working 14 hours a day, seven days a week. His activities included opening Litani’s for breakfast, cooking, making coffees, and supervising throughout the course of the day. He engaged in physical work during the lunch and dinner service. He also undertook heavier work at the chicken shop, particularly the spitting of chickens.
In his oral evidence the claimant provided further details about the work he undertook prior to the accident. He explained that he would set up Litani’s in the morning so that the restaurant was ready for the doors to open at 7.00am – 7.30am. Once the breakfast service was over, he undertook different prep work for the lunch service, as the menu for each is very different. He would then leave Litani’s from 2.00pm until 5.00pm.
The claimant gave evidence that breakfast would go from 7.00am – 7.30am until 11.30am. The lunch service commenced from noon until 4.00pm. Dinner service, which involved a different menu again, commenced at 5.00pm to 5.30pm. He said that he worked seven days a week at Litani’s before the accident. In addition to the other duties he performed, he was also involved in the clean down of the kitchen after service. This involved cleaning and mopping the kitchen. He explained that the clean down was important because the kitchen is the heart of the business.
I accept the claimant’s evidence about the work he undertook at Litani’s and the chicken shop prior to the accident. I also accept that he worked up to 14 hours a day and worked seven days a week.
The claimant gave evidence that his pre-accident kitchen duties involved a lot of lifting things, including big pots, cleaning, smashing things, bashing meat and similar tasks. I accept his evidence in this regard.
The claimant confirmed that he was left handed, and uses his left hand when using kitchen equipment, including knives. His evidence was that after the accident he could not spit chickens because he had no strength in his left shoulder and wrist. He said he tried but could not do it. His evidence was that he tried to return to kitchen duties at Litani’s after the accident and found that he could not use his left hand and shoulder because there was too much pain. He said that he could lift light objects. He gave evidence that he can lift with his left arm above his head, but only if the movement was “underneath”.
The claimant gave evidence that he could lift light objects, but said that “the pots are massive” and “very very heavy”. He said that the pots are held out in front and that the weight was too much for him.
With respect to his left arm, the claimant gave the following evidence[9]:
“With my left arm I, I can sort of go underneath but I can’t – the movement over the top really really hurts. Like, I can go up above my head, but it’s got to be underneath. If I do it over the top there’s a, there’s a certain, a certain strain that just goes straight across my top of my shoulder.”
[9] Transcript of evidence 30 November 2022 at 33.15.
When he gave evidence on 15 June 2023, the claimant expanded on the evidence recorded above, explaining that while he can raise his left arm above his shoulder if he commences the action from below shoulder height. He explained that he experiences problems if the action is commenced at or above shoulder height. He demonstrated the former action in the witness box. I am satisfied that I, and counsel, understood his evidence in this regard.
The claimant’s evidence was that prior to the accident he was the main chef at Litani’s. He also employed cooks to make certain types of specialised Mediterranean food such as vine rolls, cabbage rolls and moussaka. Prior to the accident, he intended to continue working at the expanded version of Litani’s as a chef. He gave evidence that he contemplated that additional cooking staff would need to be added to the workforce. In this regard, his evidence was that they would probably have employed a couple of juniors and some more cooks. He said that cooking was his passion, and that's what he wanted to do. He intended to maintain a hands on role.
The claimant confirmed that after the accident he sold the chicken shop. He said that because he did not have the physical capacity to do what he did pre-accident, the quality slipped. His evidence was that he sold the business because he “lost control” of the business. He used the money from the sale to “keep going”. He agreed that the money from the sale of the chicken shop was subsumed into Litani’s.
The claimant’s evidence was that an appreciation that he would not be able to return to the work he was performing at Litani’s pre-accident had an emotional impact on him. His smoking increased from two packs a week to up to three packets a day. His evidence was that although he now attends Litani’s in the morning to make sure “everything’s right”, everyone turns up and everyone “does the right thing”, he finds that he has to “get out of there”. His evidence is that he found that he was in “everyone’s road”, and that he had to get out of the kitchen. His evidence is that he “just feel[s] useless”.
He gave evidence that he cannot use a computer, and cannot use the till, because it is computerised. The claimant stated that the “most [he] can do is take the plates out and clean tables and take the plates back into the kitchen”. If there is an emergency, or if the kitchen ran out of something, he may get stock from the shop. He said that he made coffee on “very rare occasions”. He observed that his coffee skills were “very average” compared to those prepared by his baristas. He said he can use his right hand to make coffees, but he can’t make them at speed. He also said that he can’t stand in one spot for too long.
The claimant gave evidence that prior to the accident he intended to maintain a hands on role at the expanded Litani’s. He said that it was not his intention to ever step away. He wanted to build the business for his wife and children.
The claimant explained that his wife’s role at Litani’s changed after the accident. She made changes to the business during the covid lockdowns, including using Uber and Menulog to deliver food to customers. He agreed that she became an active entrepreneurial part of the business.
The claimant confirmed that his “left sided injuries” have not got any better, and had flared up in the previous 8 to 10 weeks because he had been undertaking activities that he had not performed for a long time. He clarified that the injuries he was referring to were to his left shoulder and hip. This state of affairs had come about because his wife had suffered an injury that prevented her from working at Litani’s.
The claimant described the additional work he was performing, including pulling up plastic blinds outside Litani’s, moving chairs around, and getting the business ready to open. He said that he would get to Litani’s between 6.30am and 7.00am and stay for a “couple of hours”. He gave evidence that he was rarely there after 2.00pm, and “might come back” for an hour or so in the evening. He said that the limit of the work he was doing was clearing plates, taking them to the kitchen and wiping. His evidence was that, as a business owner, he would not employ someone to undertake those type of “limited duties”.

In response to questions from Mr Wilson, the claimant agreed that he had made some food deliveries during the covid lockdown, and that he was capable of doing food deliveries. His evidence was that prior to the accident he was not “out at the front of the house”, and that he would spend his day in the kitchen. He explained that there was an open window in the kitchen that allowed him to see “everything”.
He explained that after the accident he found he was physically unable to perform his pre-accident duties in the kitchen. His evidence was that after the accident, and before she was injured, his wife undertook supervisory work at Litani’s. He disagreed that he was now undertaking a supervisory role within the business.
The claimant agreed that he could oversee what the cooks were doing, speak to the cooks, counsel the cooks, make suggestions about the menu and the food, and suggest how they should improve a dish.

He explained that his wife supervised the serving staff. He would not agree that he could perform that supervision.
Mr Wilson asked the claimant a range of questions related to the surveillance. He was taken to the footage of him using both arms above head height to raise blinds out the front of Litani’s. He explained that he had performed this movement from “underneath”. He agreed that he was able to perform that task, “with some difficulty”. His evidence was that he couldn’t do it every day. He disagreed with the suggestion that he could undertake the tasks he is seen to perform in the surveillance, and said that performing that work is the reason his symptoms had “all flared up”. He agreed that he was seen delivering plates of food, utensils and condiments to customers, and serving coffee. He agreed that he maintained the capacity to undertake supervisory type duties at Litani’s. He disagreed that he could undertake those duties full time because he couldn’t stand for long periods of time.
The claimant gave evidence that most of the work he did before the accident was as a chef in the kitchen, and that because of the way Litani’s was set up, he was able to keep an eye on the rest of the restaurant - including the kitchen staff and the floor staff.
The claimant’s evidence was that Litani’s capacity before the extension was 50 seats. After the extension in November 2016 the capacity increased to 150-170 seats. He agreed that this represented a significant expansion of the business. He also agreed that the expansion resulted in a big move in terms of the volume of work a chef would have to perform. His evidence was that as a result of the extension, he was always going to increase the number of staff in the kitchen, including at least one more additional experienced chef to work with him. He explained that at the present time he has two chefs and a sous chef in the kitchen at Litani’s. He said that he had to put on an additional chef together with an employee to work 14 hours a week to set up the restaurant, clean it, including bathrooms. He confirmed that the additional employees he put on because he could not do the work he was performing prior to the accident were a senior chef and someone to undertake the outdoor and cleaning work, a total of two staff.

The claimant’s wife provided a statement dated 13 September 2022. She states that prior to the accident the claimant was “never tired” and “always active”. She states that prior to the accident the claimant ran the chicken shop and Litani’s seven days a week, working up to between 90-100 hours a week. She states that he would start his day setting up the chicken shop and then head to Litani’s to open and set up the tables and chairs and start working in the kitchen. He did all the cooking at Litani’s himself, with occasional assistance from cooks. He would also make coffees, clear tables if required and greet customers. She states that because of his absence from Litani’s following the accident, the business needed a chef/cook and cleaner to do what he did prior to the accident.
The claimant’s wife states that the claimant went from working up to 100 hours a week to working 15 to 20 hours after the accident. She states that after the accident she had to take over a lot of his pre-accident responsibilities. In this regard, she states that she would be at front of house, organise staff, cook in the kitchen when required, assist with set up and closing, order stock and deal with the office.
Dr Wallace, orthopaedic surgeon, provided a medico-legal report dated 21 May 2018. The doctor recorded that the claimant was performing his full-time pre-injury duties at work with no restrictions, although he experienced difficulty with prolonged periods of standing or cooking. In the doctor’s opinion the prognosis was guarded for further recovery of function in the claimant’s cervical spine, left shoulder, left wrist and lumbar spine. He was, in the doctor’s opinion, fit to continue his pre-injury duties as a full-time restaurant manager without restriction.
Dr Wallace reported again on 3 August 2020. The doctor recorded complaints of cervical spine pain, lumbar spine pain, left shoulder pain and left wrist pain. The wrist pain was worse with gripping objects or lifting. The left shoulder surgery in October 2019 had failed to relieve the claimant’s left shoulder symptoms. In the report the doctor recorded as follows:
“At the time of my last review with [the claimant] in May 2018, he stated that after his motor vehicle accident in May 2017, he was certified unfit for work for 4 months until September 2017 when he returned to work at part-time light duties. At the time of my review in May 2018, he claimed that he was continuing at his full-time pre-injury duties at work as a Restaurant Manager with no work restrictions but had difficulty with prolonged periods of standing or cooking.
At the time of consultation on 29 July 2020, [the claimant] now claims that he never returned to work at his pre-injury duties as a Restaurant Manager. He is currently continuing work at part-time light duties at 3 hours a day, 7 days a week with work duties including opening up the restaurant and supervising workers only but not doing any food preparation or cooking.”
The inference I draw in relation to this discrepancy is that the history about the claimant’s return to work recorded in the doctor’s earlier report is incorrect. I do not know whether this is because the claimant gave an inaccurate history or the doctor recorded an inaccurate history. I suspect it is the latter. As I understand the position, neither party suggests that the history of the claimant returning to full-time pre-injury duties is accurate. Further, neither party submits that he is, or has been, capable of returning to his pre-accident duties. This position is supported by the opinion expressed by Dr Wallace, in his report of 3 August 2020, that the claimant was unfit to return to his full pre-injury duties. In the doctor’s opinion, the claimant was not fit for activities requiring repetitive bending or twisting movements at his cervical spine or lumbar spine, repetitive lifting overhead at his left arm or repetitive lifting above 10kg. In his opinion, the claimant had a poor prognosis for further recovery of function in his spine, left shoulder and left wrist, despite any ongoing treatment.
Dr Herald, orthopaedic surgeon, provided a medico-legal report dated 17 April 2020. In Dr Herald’s opinion, the claimant has a significant reduction in his capacity to work as a result of the accident. The doctor expressed the opinion that the claimant is only able to work one or two hours a day, cannot sit or stand for more than 15 minutes, and cannot lift more than 5kg. In the doctor’s opinion, the claimant will only be able to perform light duties for the rest of his life.
Melissa Sale, occupational therapist, reported on 27 July 2020. She identified a range of functional restrictions arising from the injuries suffered by the claimant in the accident, including limited ability to stand for more than five minutes, restricted neck and left shoulder movements, and limited lifting capacity using the left arm and hand. In her opinion, the claimant’s physical and psychological restrictions have impacted on nearly all aspects of his daily life.
Medical Assessor Home gave a certificate and reasons dated 19 March 2021. He recorded complaints of neck, left shoulder, left wrist and lower back pain. He also recorded that the claimant reported difficulty with overhead reaching, that he could not perform heavy lifting with his left hand, and mild restriction of wrist joint motion. The lower back pain was reported to be exacerbated with prolonged standing, walking, deep bending and prolonged sitting. His left leg sometimes felt weak and gave way. There was also left hip pain, that the claimant thought was referred from his back. In the opinion of the Medical Assessor, the claimant was fit to return to work at full-time light duties with due consideration given to his restrictions.
Dr Rosenthal, occupational physician, prepared a medico-legal report dated 1 December 2021. The doctor thought that the claimant was likely to experience ongoing symptoms in his neck, back, left shoulder, left wrist, and possibly his left leg. In the doctor’s opinion, the claimant is incapacitated as a result of the accident; he is restricted with sitting, standing, walking, bending and lifting, and driving for lengthy periods. While this has reduced his fitness for employment, he was still fit for appropriate suitable duties on reduced hours. In his opinion, the claimant would be fit for work of up to 20 hours a week with a lifting restriction of 5kg, no recurrent bending, no prolonged sitting, standing or walking or driving, and no work above left shoulder height.
Christian Byrnes, occupational therapist, reported on 30 March 2022. Among other things, Mr Byrnes conducted a functional assessment of the claimant. Complaints of pain in his neck, left arm and lower back were recorded. Those complaints restricted his performance with work. There was numbness in the left arm all the time. Occasionally his left leg gave out. The claimant also reported experiencing symptoms of anxiety, stress and depression. His sleep is poor and he was often fatigued. There were also complaints of impaired concentration, decision making and poor memory. Restrictions sitting, standing, walking, and reaching were recorded. There was found to be demonstrated weakness and reduced range of movement in the left shoulder and lower back. The claimant reported that symptoms are aggravated by loading of these joints with both static postures, such as sitting for more than 30-40 minutes, and dynamic tasks, such as walking more than five to six minutes and lifting and carrying light loads. These complaints were considered by Mr Byrnes to be consistent with his observations and the diagnosis contained in medical reports provided to him. In his opinion, the pain associated with prolonged standing resulted in a need for help in the claimant’s business. Pain also reduced his capacity to lift and carry resulting in a need for help at work. Pain also adversely impacts on the claimant’s sleep resulting in fatigue during the day and fluctuations in his mood.
Dr Trantalis, treating orthopaedic surgeon, reported on 17 November 2022. The report records that, despite surgery, the claimant is left with left shoulder pain and weakness. As a result of the pain and weakness in his left shoulder, the doctor thought that the claimant was not going to have the capacity to perform manual labour, particularly any labour involving repetitive lifting at or above shoulder level.
Dr Gertler, psychiatrist, thought that the claimant’s prognosis was guarded. In the doctor’s opinion the claimant’s capacity for work is limited not only by his continuing physical problems, but also his social withdrawal, easy irritability, difficulty with concentration and memory, and his loss of interest and motivation. In his opinion, the claimant was unfit for his usual employment. He had, in the doctor’s opinion, essentially been forced into the equivalent of an early retirement.
Dr Vickery, psychiatrist, thought that the claimant had a reduced fitness for employment generally related to the injuries sustained in the accident.

Surveillance footage

The insurer relies on surveillance footage captured on 29 October 2022, 3 November 2022 and 6 November 2022. There is an associated report from the investigator dated 7 November 2022.
In submissions dated 23 December 2022, the claimant argues that a reasonable interpretation of the surveillance on 29 October 2022 is that he lifts the blinds on two occasions, walks with a limp, carries newspapers with his right arm, and makes coffee. The surveillance on 3 November 2022 is said to show him sitting outside Litani’s and walking from a bottle shop carrying alcohol in his right hand. As to the surveillance on 6 November 2022, the claimant’s position is that it shows him using zips on the blinds, raising the blinds on a number of occasions, walking carrying newspapers, driving his vehicle, pushing a shopping trolley with his left arm, serving coffee, lifting a pot of tea, lifting plates of food, bending over, and removing a shopping bag from a trolley with his left hand not above shoulder level. It is submitted that shopping trollies propel in all directions with little effort, not requiring any significant application of force.
The insurer submits that aspects of the surveillance are such that the Commission is entitled to treat the claimant’s subjective assertions about his residual work capacity, and the effect of his restrictions, with care. In this regard, the insurer points to the activities the claimant is depicted performing in the footage.
I have viewed all the footage on multiple occasions. I find that the footage on 29 October 2022 shows the claimant driving his vehicle, using his left arm and hand to pull on a cord to raise plastic blinds on a number of occasions, stand on a chair to secure the cord, use both arms above his shoulders to adjust the blinds, serve customers, use his left hand to carry a sauce bottle, carry a coffee and saucer in each hand, clear a table using both hands, and carry large milkshake containers in his left hand.
I find that in the footage dated 3 November 2022, the claimant is depicted driving his vehicle, holding his mobile phone with his left hand, serving coffee, and walking to a bottle shop.
I find that on 6 November 2022, the surveillance depicts the claimant: bending to the ground, carrying a sign with his left hand, reaching above shoulder height with both arms, pulling on a cord to raise blinds using both arms and hands on a number of occasions, moving stacked chairs using his left hand and arm, lifting and positioning signs using both hands and arms, opening large umbrellas using both arms at and above shoulder height, lifting chairs to chest height, placing table numbers on tables using both hands and arms, bending at the waste to pick something up, untie knots in a rope using both arms above shoulder height, pushing a shopping trolley using his left hand and arm, and placing shopping bags into the boot of his vehicle using both hands. He is seen driving his car, serving drinks using both hands, clearing a table with both hands, serving multiple customers, including carrying a tray of drinks using both hands, and carrying plates of food to customers in each hand. He is also seen lifting a shopping bag from a trolley and placing it in his vehicle.

Reliability of the claimant’s evidence

The insurer argues that the claimant was prone to exaggeration. Among other things, the insurer pointed to the surveillance, and argued that the footage was inconsistent with the level of disability alleged by the claimant.
The claimant provided an updated statement dated 13 September 2022, approximately a month before the surveillance footage was obtained. He stated at [87] that “I now do occasional work, but only in a supervisory capacity…”. The activities he is seen carrying out at Litani’s in the surveillance are not, in my assessment, supervisory in nature. Those activities included serving customers, carrying objects, lifting, reaching and the other activities with respect to which I have made findings. His oral evidence was that he had taken on additional responsibilities at Litani’s as his wife had suffered an injury that prevented her from carrying out her normal activities at the restaurant. He said he experienced “flare ups” as a result of undertaking this work.
In her supplementary statement dated 15 November 2022, the claimant’s wife stated that she suffered an injury to her right knee on 31 August 2022, and that as a result she had not been able to assist the claimant at Litani’s. She states that she had attended the restaurant infrequently since mid-October 2022. She also states that the claimant put in more hours and undertook “more strenuous work” at Litani’s since that time. She states that the claimant had been coming home with more pain than usual and took more pain medication in the evening to control the pain.
I accept that the claimant performed additional activities at Litani’s because his wife was unable to undertake her normal duties due to injury. I also accept that he experienced flare ups of symptoms as a result of undertaking additional work.
However, my impression of the surveillance is that the claimant was in no obvious distress while performing the activities he is seen undertaking. The claimant’s movements appeared to be fluid. I did not observe any obvious restriction in his movements when performing activities at Litani’s.
I consider it likely that when he made his statement dated 13 September 2022 the claimant was undertaking activities at Litani’s of a similar nature to those he is depicted undertaking in the surveillance. To this extent, the claimant may have understated the activities he had been performing, and had been capable of performing, at Litani’s. I do not accept, however, that the claimant intended to mislead the Commission.
The insurer pointed to other examples of the claimant exaggerating, including his evidence about what he did and did not do in the period between 2pm and 5pm when he returned home after the lunch service, and the domestic duties he performed. I am not persuaded that this was an example of exaggeration on the claimant’s part. I do accept, however, that there were some inconsistencies in his evidence that required clarification during the course of his oral evidence.[10]
[10] See for example transcript dated 30 November 2022 page 60 from 15 – page 70.
The insurer also argues that credit issues arise from the financial records, including the matters addressed in Ms Lindsay’s reports. It argues that there are unusual aspects to the labour hire invoices, including the sequential numbering, and that the entity providing invoices was in liquidation when some invoices were provided.
During oral submissions the insurer took me to the summary of the profit and loss statement in the report of Ms Lindsay, including what it submits is a discrepancy between the labour hire invoices and the cost associated with contractors in the financial year ending 30 June 2020. The insurer also pointed to the wages pre-and post-accident being very similar, despite the claimant no longer performing work as a chef at Litani’s and, on his case, engaging replacement labour.
It is convenient at this point to record that the claimant does not dispute the accuracy of the summary of the profit and loss statements contained in Schedule 4 of Ms Lindsay’s report dated 1 July 2022.
The insurer made it clear in oral submissions that it was not alleging fraud with respect to the discrepancies it had directed me to; rather, it argued, these were matters that went to whether the claimant had discharged the onus he carries. I will address matters arising from the financial records later in these reasons.

Capacity submissions

The claimant’s case is that he is unable to lift any weights of 5kg above shoulder height, that he is no longer able to work as a cook or chef at Litani’s, and that he is restricted to performing infrequent menial tasks involved with opening the restaurant, some service of meals, making coffees, obtaining some restaurant supplies, and closing the restaurant.
The claimant submits that in view of his injuries, his vocational history, his lack of transferable skills, and his attributes as an putative employee competing for work against other uninjured candidates, there is no practical basis to conclude that he would, as a finding of fact, secure employment on a long term basis such that he could make his current capacity productive of financial return on the open labour market. The claimant submits that he has no residual earning capacity on the open labour market.
The insurer’s case is that the claimant has some restrictions related to sitting, standing, walking, bending, lifting, and driving for lengthy periods.[11] It agrees that the claimant is no longer able to work as a hands-on full time cook or chef at Litani’s,[12] but argues that he can still work in a managerial or supervisory capacity. The insurer submits that the claimant can still perform tasks involved with opening the restaurant, some service of meals, making coffees and obtaining some restaurant supplies, closing the restaurant, as well as general supervisory and managerial tasks. The insurer argues that the claimant has a very significant residual earning capacity in a managerial and supervisory capacity and that it can and does produce income.
[11] AF at [11].
[12] AF at [14].
With respect to the claimant’s ongoing restrictions and residual work capacity, the insurer relies on the opinions of Dr Wallace and Dr Rosenthal. Those opinions, it is argued, sit more comfortably with Medical Assessor Home’s findings. It is also argued that, unlike the “unreasonably pessimistic opinion of Dr Herald”, the opinions of Dr Wallace and Dr Rosenthal sit comfortably with the fact that the claimant has returned to work in a supervisory/managerial capacity at Litani’s.
The insurer submits that the opinions of Dr Rosenthal and Dr Wallace about the claimant’s restrictions and residual work capacity sit more comfortably with the surveillance evidence. I accept this submission.
To the extent that both Dr Gertler and Dr Vickery diagnosed an accident related adjustment disorder, it is submitted that this condition is likely to improve with further treatment and that any incapacity for work is either wholly or mostly due to his physical symptoms in any event.
It is submitted that the claimant’s physical capabilities are in fact substantially more than menial, and that on any view the claimant retains a significant ongoing capacity for managerial/supervisory work in his restaurant. The insurer argues that it has comfortably satisfied any evidentiary onus it may carry in respect of the claimant’s ability to exploit a residual earning capacity.

Capacity findings

I accept the claimant’s evidence about the nature of the work he performed prior to the accident. I also accept his evidence that he loved working as a chef, and that prior to the accident it was his intention to continue working as a chef at the expanded version of Litani’s.

I find that the claimant’s pre-accident duties involved him working up to 14 hours a day, seven days a week, at Litani’s and the chicken shop. I find that the kitchen duties performed by the claimant prior to the accident involved frequent lifting, including big pots, cleaning, preparing food, and cutting. This work involved the claimant using his left hand and arm to a significant extent. I find that his work in the kitchen also involved standing for long periods, bending, holding pots and pans in front of him while cooking, and overhead reaching. I find that his responsibilities included setting up Litani’s in the morning and supervising his staff.
I accept the claimant’s evidence that his left shoulder injury prevents him from spitting chickens because he experiences limitations with respect to strength in his left shoulder and wrist. I also accept his evidence that he tried to return to kitchen duties at Litani’s after the accident and found that he could not use his left hand and shoulder because there was too much pain. I am comfortably satisfied that if the claimant was physically capable of returning to work as a chef, either part time or full time, he would.
Other than with respect to incapacity arising from the claimant’s left shoulder injury, I prefer Dr Rosenthal’s opinion in relation to both the claimant’s loss of capacity arising from his accident caused injuries, and his current work capacity.
I find that as a result of his injuries, the claimant is restricted with sitting, standing, walking, bending and lifting, and driving for lengthy periods. Because he is left hand dominant, and given the nature of his pre-accident work as a chef, the left shoulder and wrist injuries are of particular significance in terms of the claimant’s earning capacity.
I find that the claimant is not physically capable of holding pots and pans in front of him while cooking, or performing overhead reaching that involved him lifting weights in excess of 5kg. I am satisfied that he could not undertake food preparation.
I find that the claimant has the capacity to perform tasks that involve him using his left arm above the shoulder if he comes to a task from “underneath”, as he explained in his evidence, and that involve weights of no more than 5kg. I am satisfied that he can pull ropes attached to outdoor blinds, raise umbrellas, make adjustments, and deliver food and drinks to customers, using his left arm and hand; activities he is seen performing in the surveillance.
I am comfortably satisfied that, as a result of the physical injuries he suffered in the accident, the claimant has not been, and will not be, capable of working as a hands-on cook or chef, on either a full time or part time basis. He is not, in my assessment, capable of performing the fundamental duties associated with this work. I find that he has no practical capacity to undertake work as a chef or cook.
I am satisfied that the claimant’s psychological injury has had an impact on his capacity to earn. In this regard, I find that the claimant’s capacity to earn has also been limited by his irritability, difficulty with concentration and memory, loss of interest, and motivation. I am not persuaded that his psychological injury would prevent him performing his pre-accident duties. However, when combined with his physical injuries it contributes to his loss of capacity to undertake those duties.
I find that from the day of the accident until approximately December 2017 the claimant was totally incapacitated for any work. I find that from early December 2017 until he underwent left shoulder surgery on 9 October 2019, he performed some supervisory work at Litani’s. I find that he was totally incapacitated for work for six weeks after the surgery, and thereafter returned to part time supervisory work at Litani’s.
I find that by the time he was assessed by Ms Sale on 7 July 2020 the claimant was serving customers and taking orders at Litani’s. I accept the history recorded by Ms Sale as accurate in this regard. I also note that while she recorded that the claimant helped in the kitchen “on a good day”, Ms Sale did not describe precisely what form the help took. I infer that it did not involve cooking; Ms Sale recorded that the claimant was embarrassed by his inability to cook. I have also accepted the claimant’s evidence that he has tried to return to cooking but has not been successful.
Dr Wallace recorded that, when he re-examined the claimant on 29 July 2020, the claimant told him that he continued to perform part-time light duties three hours a day, seven days a week, and that while he was not doing any food preparation or cooking, his duties included opening up the restaurant and supervising workers. On this basis, I consider it probable that from at least July 2020 he also had the capacity to open the restaurant.
I find that the claimant can undertake the activities I have found he performed in the surveillance on each of the five days a week Litani’s is now open. In my assessment, this finding is generally consistent with the opinion expressed by Dr Rosenthal with respect to the claimant’s work capacity. I find that he has had the capacity to undertake those activities since at least October 2022.
I do not accept Dr Herald’s opinion that the claimant can only work one to two hours a day. The opinion is overly pessimistic, and does not accord with my findings with respect to what the claimant has actually been doing at Litani’s.
I do not accept the claimant’s submission that he has no residual work capacity. His role at Litani’s prior to the accident involved more than just cooking. He supervised the operation of the restaurant, and did things such as make coffees, clear tables, greet customers, and open Litani’s for breakfast. I am also satisfied that he was, and remains, the entrepreneurial mind and a driving force behind the business.
The claimant agreed in his oral evidence that he could oversee what the cooks were doing, speak to the cooks, counsel the cooks, make suggestions about the menu and the food, and suggest how they could improve a dish. I find that he has the capacity to do all these things. He also agreed that he maintained the capacity to undertake supervisory type duties at Litani’s.
While the claimant may not have employed someone to undertake the activities I have found he is capable of performing at Litani’s, in the context of an individual who is running a restaurant, the activities he is capable of performing are meaningful and important. His ability to take orders, deliver food and drinks to customers, and clear tables, frees up his staff to perform other work and attend to other customers. His ability to oversee what the cooks are doing, speak to the cooks, counsel the cooks, make suggestions about the menu and the food, and suggest how the cooks could improve a dish, is important and practical input into the running of a restaurant.
While it may not be possible to classify what he is doing, and capable of doing, in terms of a role that would be performed by an employee, I am comfortably satisfied that what the claimant is capable of doing represents a capacity to earn that is practical and not just theoretical when considered from the perspective of his position as an owner of a successful restaurant.

ASSESSMENT OF DAMAGES

Non-economic loss

It is agreed by the parties that the claimant exceeds the 10% impairment threshold established by s 131 of the MAC Act, and that the claimant is entitled to receive non- economic loss damages.[13] An award under this head of damage is to compensate the claimant for his pain and suffering, loss of amenities of life, and disfigurement. He is 60 years of age and has a life expectancy of a further 25 years. It is now over six years since the accident occurred.
[13] AF at [6].
The claimant’s case is that he experiences, and will continue to experience, significant pain in his neck, back, left wrist, left hip and left shoulder, and that he continues to suffer from adjustment disorder with depressed mood. He submits that he experiences significant restrictions in relation to his activities of daily living. He points to the unsuccessful left shoulder surgery, and the emotional impact that his injuries and disabilities have had on his life, including the impact on his involvement in his business. The claimant seeks an award of $425,000 for this head.
The insurer notes the medical procedures that the claimant has undergone with respect to his injuries, and submits that his current treatment regime is minimal. The insurer argues that apart from the medical procedures that he has undergone, the claimant’s treatment has been conservative and non-invasive. In the insurer’s submission, an allowance of up to $200,000 is appropriate for this head.
Earlier in these reasons I have made findings about the injuries suffered by the claimant as a result of the accident. The parties agree that the claimant continues to experience pain from his neck down to his back on the left side, pain into the left leg and left foot.[14] He experiences ongoing symptoms and disability as a result of his accident caused injuries. He has put on “a few kilos”. He also suffers from symptoms associated with his psychological injury.
[14] AF at [8].
The claimant underwent left shoulder surgery in the form of subacromial decompression on 9 October 2019 at the hands of Dr John Trantalis. Future surgery is possible but not, in my view, probable. He has undergone a lumbar intraforaminal injection for back pain, a left C7 nerve root injection for neck pain, and radiofrequency denervation at the lumbar facet joints. He has been treated with physiotherapy and continues to take Lyrica.
I accept the claimant’s evidence that the accident caused injuries and consequential disabilities have had a significant impact on his life. His family life and relationships have been adversely affected, his sense of self has been effected, and he is no longer able to engage in his business as he did pre-accident. This last matter is of particular significance to him. I am satisfied that the work he performed as a chef at Litani’s was an integral part of his life and that he derived great satisfaction from this work. His injuries and consequential disabilities have taken this away from him, and this is a significant source of destress to him.
The evidence of the claimant’s wife is that prior to the accident he was a very social and happy man, was full of life and “was the life of the party”. Her evidence is that the injuries the claimant suffered as a result of the accident have had an impact on his family life and day to day living. She states that he is not his former self, has become aggressive, frustrated, is angry on a daily basis and has mood swings. She described him as being a shell of his former self. His smoking increased, and he appears to her to be always on edge. He is anxious and stressed when he travels in a car. His relationship with his family is strained, he rarely goes out, and rarely attends social activities and functions. Her evidence is that the claimant suffers from lack of sleep and is tired and irritable. His focus and attention to detail has dropped and he makes errors at home and at work. He has also, in her opinion, lost confidence and the zest for life he had before the accident. He is, in her opinion, “a totally different person to the one [she] married”. I accept the evidence of the claimant’s wife in relation to these matters.
The claimant’s mother-in-law has also provided a statement. She described the claimant as a hard-working man who was full of life and a very caring person. She states that since the accident the claimant is not his former self; he had become aggressive, frustrated and is angry with his situation.
I have determined that a fair award for this head is $270,000.

Economic loss
Principles

If an injured person’s pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury, they are to be compensated by an amount that reflects the financial consequences that follow from the impairment: Husher v Husher [1999] HCA 47 (Husher).[15]
[15] Per Gleeson CJ, Gummow, Kirby and Hayne JJ at [6].
Damages for past and future economic loss are allowed to an injured person because the diminution of their earning capacity is or may be productive of financial loss. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the injured person in the same position as they would have been in if injury had not been sustained: Husher at [7].
What earning capacity has been impaired or lost and what financial loss is occasioned by that impairment or loss must be identified: Husher at [17]. What the injured person has lost are the financial rewards from work that are rewards they would have been able to direct to whatever purpose or destination they chose: Husher at [18].
At [23] the plurality in Husher held that:
“[23] Deciding what value is to be ascribed to the loss of future earning capacity of an injured plaintiff requires close attention to the facts of each case. The task is not one to be undertaken by seeking to classify cases as concerning ‘sole traders’ or ‘partnerships’ or ‘wage-earners’ or ‘trading trusts’, and then attempting to deduce some rule of general application to all cases falling within the classification thus devised. Rather the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal. Only when those inquiries are pursued can a judgment be made about what capital sum to allow as damages for the impairment of the plaintiff's earning capacity. In doing so, regard must be had, of course, to all those contingencies of life that might reasonably be expected to affect the course of events in the future.”
Where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to a decision maker to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. The trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made: State of NSW v Moss [2000] NSWCA 133 per Heydon JA at [87].

The accounting experts

Each party relies on reports from an accountant. The claimant relies on reports from Mr Sheilds of Dolman Bateman dated 6 December 2021, 24 January 2022 and 14 September 2022.
The insurer relies on a report from Ms Lindsay of Forensis Accounting dated 1 July 2022, her email dated 18 August 2022, and a schedule tendered on 15 June 2023. I give the insurer leave to rely on the schedule.
I do not accept Mr Sheilds’ approach to the assessment of the claimant’s probable earnings as set out at [51] – [54] of his 6 December 2021 report. I do not accept that, if his methodology was otherwise adopted, the claimant’s earnings should be based on one year, 2017; they should reflect the average over a number of years.
I do not accept Mr Sheilds’ assessment of the claimant’s future economic loss as set out in his reports. As will be seen, I have found that a different approach should be taken to the assessment of the claimant’s future economic loss.
In her report of 1 July 2022, Ms Lindsay raised a number of concerns with respect to Mr Sheilds’ assessment of the claimant’s economic loss, including with respect to double counting for past economic loss and tax treatment of replacement labour costs. Ms Lindsay raised issues with respect to the evidence relating to the replacement labour costs, including with respect to the invoices and the profit and loss records. She also sought further information. Ms Lindsay did not make an assessment of the claimant’s economic loss given the issues she raised and additional material she sought.
In an email dated 18 August 2022, Ms Lindsay stated that the additional information she had provided did not resolve the issues identified in her report with respect to the replacement labour.
There is also a joint report prepared by the accountants dated 26 August 2022. Among other things, Ms Lindsay confirmed that she had not quantified a past or future economic loss because of anomalies in the accounting records, lack of reliability of the accounting records, and lack of evidence to indicate that the claimant has suffered a loss attributable to the accident. The one matter that the accountants agreed on was that replacement labour costs should be adjusted for tax on the labour. Mr Shields’ opinion was that the tax should be at the company rate of 25%, whilst Ms Lindsay was of the opinion that it should be at the claimant’s marginal rates, and not the company rate.

Submissions

In his written submissions, the claimant argued that if the Commission determines that the injuries caused by the accident are such that they prevent him from working in his pre-accident chef or cook role, which he argues is the correct determination, the orthodox prima facie starting point to the appropriate measure of his loss is the cost of replacement labour or, the value of earnings which he could have obtained in the marketplace generally. It is argued that the applicable principles recognise that in some factually appropriate cases it is appropriate to consider the loss of profits which result from injury. The claimant’s submissions make reference to various passages to H Luntz and S Harder, Assessment of Damages for Personal Injury and Death, 5th Edition, LexisNexis, (Luntz).
The claimant argues that the Commission is not forensically assisted by the expert accounting opinion relied on by the insurer.
In oral submissions made on 15 June 2023, the claimant’s case was modified such that he now submits that his past economic loss should be assessed over three periods of time, as follows:
·        for the period 20 May 2017 to 30 July 2017 – based on the value of his personal exertion by reference to comparable net earnings;
·        for the period 31 July 2017 to 31 March 2020 – based on the full replacement labour cost incurred, plus 10% to account for GST, and
·        for the period 1 April 2020 to the date of the award – based on the value of his personal exertion by reference to comparable net earnings of $1,678.23 a week.

The claimant argues that the award for the last period should be discounted by 15% for two years to reflect the impact of the covid lockdowns on Litani’s.
The claimant argues that his future economic loss should be assessed to at least age 67, and up to age 70, based on a 55-60 hour week at $36.875 an hour. This would result in the sum of $2,212.50 gross, or $2,027 net, a week less vicissitudes.

The insurer relies on flaws in the reports of Mr Shields identified by Ms Lindsay, and submits that Mr Shields’ analysis should be rejected. The insurer argues that no allowance for the replacement labour claim should be made.
The insurer submits that, given the business operated at a substantial loss in the 2018 and 2019 financial years, and the claimant did not derive any income from the business in those years, there is, theoretically, an entitlement to past economic loss damages for those years. However, having regard to the analysis of Ms Lindsay, it is the insurer’s primary submission that the claimant has not discharged the onus he carries with respect to the measure or quantification of such a loss.
If this submission is not accepted, the insurer argues for a methodology that would result in an allowance of $560 net a week for the financial years ending 2018 and 2019. This would produce a loss of $58,240. Thereafter, it is argued that no further allowance should be made because the business net profit and sales rose significantly in the financial years ending 2020 and 2021, being $187,456 and $569,971 respectively, such that it was far greater than any of the pre-accident years (in 2017 it was $70,388). Thus, it is argued, by the financial year ending 2020, the claimant’s disabilities were not productive of financial loss.

The insurer submits that the claimant has not discharged the onus he carries, nor has he addressed the requirements of s 126 of the MAC Act. The insurer notes that the claimant remains the owner and operator, albeit in a supervisory/managerial role, of a viable and substantial profit generating restaurant business. In its submission, the claimant’s disabilities can no longer be regarded as productive of financial loss once proper regard is had to the 2020 and 2021 financial records.
It is argued that, in the absence of the underlying accounting analysis supporting the future increased business and staffing needs, the claimant’s assertions about “an additional workforce” ought be regarded as conjecture.
The insurer argues that the claimant’s submission that he is really performing something of a nothing role is contrary to the performance of the business itself, the surveillance, and the medical opinions of Dr Rosenthal and Dr Wallace. It is argued that neither Mr Shields nor the claimant have accounted for the favourable trajectory of the claimant’s business and the associated record profits in the financial year ending 2021, despite the fact that replacement labour is no longer being engaged. It is submitted that not only does the claimant have a residual capacity that is capable of, and is being, exploited in a managerial capacity at Litani’s, but he remains the owner and operator of a viable income producing business irrespective of any accident-related injury or disability.
The insurer argues that the methodology and measure of past and future economic loss contended for by the claimant is problematic for the reasons set out at [63] of its 21 October 2022 submissions.
The insurer submitted that the claimant has not put into evidence material relevant to the claim for economic loss, including wage and payment records for the chef he says has been employed to replace him at Litani’s. The insurer drew my attention to NRMA Insurance Limited v Pham [2013] NSWSC 468, in particular at [128]-[131], a case that it described as a “cautionary tale”. That case, among other matters, focused on the onus that rests with a plaintiff, particularly with respect to the provision of financial records. At [128], Hall J referred, with approval, to the reasons of von Doussa J in Giorginas v Kastrati (1988) 49 SASR 371 at [374]. Hall J found at [131] that Mr Pham’s case had been assessed upon a hypothesis for which there was no evidence.
The insurer argues that the absence of relevant information, without explanation, was to the claimant’s detriment, not its.
The insurer’s primary submission is that the claim has so many evidentiary flaws in it the Commission cannot actually undertake an assessment because evidence that could have been made available has not been made available. Accordingly, it is submitted, the claimant has not discharged the onus he carries.

The loans

At the resumed hearing on 15 June 2023 the claimant, through Senior Counsel, confirmed that he no longer pressed a case that various loans, that are referred to in the evidence and written submissions, ought form part of his claim for economic loss. That being the case, I do not need to address the loans, and I make no allowance for them.

Past economic loss – findings and award

As recorded earlier, the claimant now puts his case for past economic loss on the following basis:
·        for the period 20 May 2017 to 30 July 2017 – based on the value of his personal exertion by reference to comparable net earnings (Period 1);
·        for the period 31 July 2017 to 31 March 2020 – based on the full replacement labour costs incurred, plus 10% to account for GST (Period 2), and
·        for the period 1 April 2020 to the date of the award – based on the value of his personal exertion by reference to comparable net earnings of $1,678.23 a week (Period 3).
With respect to Period 1, the claimant relies on the methodology set out in Mr Shields’ report of 6 December 2021 at [51]-[54]. The claimant’s evidence, that I accept, was that during this period a friend provided him, at no cost, with staff, in particular a chef, to undertake the work he was not able to perform at Litani’s. The insurer argues that while the claimant may have had a loss of capacity to earn during this period, it was not productive of financial loss as he was able to secure replacement labour at no cost to him.
I consider it probable that during Period 1, a period of approximately six weeks post-accident, the claimant had no capacity for work. I do not accept the opinion expressed in Mr Shield’s report at [34] that in the 2017 financial year, being the year of the accident, sales fell by 8% from $1,071,151 to $984,803 reflecting the loss of the claimant’s labour in the business. This conclusion is not, in my opinion, supported by the evidence that the claimant was able to secure replacement labour at no cost to him during this period. Further, I do not consider that the financial year ending 30 June 2017 is an appropriate yard stick to assess the performance of Agno Investments given that the profit and loss statement for that year, as summarised in Mr Shields’ report, records that while sales were lower than in the year ending 30 June 2016 ($1,071,151), they were significantly higher than the year ending 30 June 2015 ($341,921).
I am not satisfied, on the balance of probabilities, that the claimant has established that his loss of capacity to earn during Period 1 was productive of financial loss. As the plurality held in Husher at [7], damages for past loss (and future loss) are allowed to an injured plaintiff because the diminution of his earning capacity is or may be productive of financial loss. Both elements are important. In this case, I find that while the first element is satisfied, the second is not. I make no award for Period 1.
With respect to Period 2, the claimant seeks an award based on the full replacement labour costs incurred by the business, plus 10% to account for GST. The insurer’s primary submission is that no award should be made. Period 2 encompasses the period during which the claimant underwent, and recovered from, left shoulder surgery. I have earlier made findings about the claimant’s capacity to earn. I am satisfied that he had a loss of capacity to earn during Period 2.
The claimant’s evidence is that because he did not have the capacity to undertake his pre-accident work, replacement labour was engaged by the business between July 2017 and March 2020. The labour was sourced from two companies that were controlled by David Carvana. His evidence is that the replacement labour comprised a chef, a cleaner, and a shop assistant. The latter was engaged because his wife moved from working at the chicken shop to Litani’s to undertake work he was not able to perform, and her position at the chicken shop needed to be filled. I accept his evidence in relation to all these matters.
The claimant’s wife gave evidence in her statement that Litani’s was busy without the claimant there, and that it was difficult to run the business short staffed. Her evidence is that they needed a chef/cook and a cleaner to perform the work that the claimant was unable to perform. Her evidence is that replacement labour was sourced for these roles and commenced at Litani’s in or around July 2017 until March 2020. I accept her evidence about these matters.
Mr Carvana provided a statement dated 8 September 2022. He stated that he started Emplus Solutions Pty Ltd (Emplus) in 2004 to provide recruitment services “for all types of businesses and industries.” That entity went into liquidation in 2019. In July 2019 he set up another entity, DRC, that also provided recruitment services. He states that Emplus provided recruitment staff for the business from July 2017 and that after that company was liquidated, DRC provided staff from July 2019 to March 2020. He states that he would invoice the claimant monthly and he would be paid in cash. I accept Mr Carvana’s evidence with respect to these matters.
I have been provided with a bundle that contains invoices from Emplus and DRC. The parties agree that Schedule 5 of Mr Shields’ report dated 6 December 2021 is an accurate summary of the invoices.
The insurer relies on the opinions expressed by Ms Lindsay, including her opinion as recorded in the joint report. In her report of 1 July 2022, among other matters, Ms Lindsay raised issues about the sequential numbering of the invoices, which she observes is unusual in both form and nature. She also made a number of observations at [60] of the report, and queried how Emplus, while in liquidation, issued invoices dated 31 May 2019 and 30 June 2019 when it was under the control of the liquidator.
A further matter that the insurer pointed to in its oral submissions, was that the profit and loss statements of Agno Investments only recorded contractor expenses of $14,700 in the year ending 30 June 2020. I accept that the profit and loss statements for the year ending 30 June 2020 do not accord with the invoices for that period. I do not know why that is. Further, it is not clear how it was that Emplus issued invoices while in liquidation. I am satisfied, however, that the invoices were issued to, and paid by, Agno Investments.
While the numbering of the invoices is unusual, I find that they were issued by Emplus (invoices 1-24) and DRC (invoices 100-108) to Agno Investments and relate to labour hire employees provided to Agno Investments during Period 2. I find that the summary of replacement labour invoices contained in Schedule 5 of Mr Shields’ report dated 6 December 2021 is an accurate summary of the invoices.
I find that, on the balance of probabilities, during Period 2 Agno Investments was provided with replacement labour as recorded in the invoices, and that it paid for the replacement labour in the amounts recorded in the invoices. I find that the invoices were paid in cash. I find that the replacement chef and the cleaner were engaged to undertake work at Litani’s that the claimant was not able to perform as a consequence of his accident caused incapacity. I also find that the claimant’s wife stopped working at the chicken shop and commenced at Litani’s so she could undertake managerial and supervisory work that would otherwise have been performed by the claimant, and that he could not perform, and that the shop assistant was required to replace the work she would otherwise have performed at the chicken shop. These findings are supported by the evidence of the claimant, his wife, Mr Carvana and the invoices from Emplus and DRC.
In circumstances where a claimant conducts a business through a company (or other vehicle), the requirement to mitigate their loss would ordinarily mean that the damages for economic loss cannot exceed the cost of employing someone to do the work that the injured claimant is unable to do: Luntz at [6.5.1].
I find that for Period 2, the cost of replacing the claimant’s labour, including the costs associated with the engagement of a shop assistant to replace the work that his wife was performing at the chicken shop, is recoverable, subject to account being taken for taxation.
I find that the claimant’s loss of capacity during Period 2 has given rise to a financial loss. This is because the money paid to replace his labour would, had the replacement labour not been required, have been available to him as a dividend or distribution from Agno Investments. That is the economic consequence that flowed from his loss of capacity. It matters not that in the financial year ending 30 June 2020 Agno Investments made a profit; if the claimant had not been incapacitated, and replacement labour had not been required, the profit of Agno Investments would have been higher, because it would have included the sums that were paid for replacement labour. In this way, the claimant’s loss of capacity has been productive of financial loss during Period 2.
The claimant argues that GST should be added to the sums paid for replacement labour, and that his damages for this period should reflect the labour hire costs plus GST. The insurer’s position is that, if the claimant’s damages are to be assessed on this basis, not only should GST not be added, but the labour hire costs should be reduced to reflect taxation. The insurer’s position is supported by the forensic accountants relied on by both parties.[16] Mr Shields expressed the opinion that the claimant’s claim for replacement labour should be adjusted for tax on the replacement labour. He thought that the company tax rate ought be applied. Ms Lindsay took the position that the company tax rate is not appropriate. In her opinion, the claimant’s marginal tax rates should be applied. On the basis that the two expert accountants relied on by the parties agree that the replacement labour costs should be adjusted for tax, I am satisfied that the adjustment should be made. I find that the appropriate rate is the company rate of 27.5%, the rate adopted in the schedule prepared by Ms Lindsay dated 15 June 2023. Litani’s and the chicken shop were operated by Agno Investments, and those costs were incurred by that entity to replace the claimant’s labour.
[16] See joint experts report: Issue 5.
The schedule provided by Ms Lindsay summarises the labour costs based on the invoices, and applies tax to those costs. I have found that all the replacement labour costs, as recorded in the invoices from Emplus and DRC, were paid by Agno Investments. Accordingly, I adopt “Alt 2” for the costs in the year ending 30 June 2020. For the years ending 30 June 2018 and 2019 I adopt Ms Lindsay’s calculations, as set out in the schedule. I adopt the net labour costs she has calculated after a reduction to reflect the company tax rate. I assess the claimant’s loss for Period 2 in the sum of $283,113.[17]
[17] $101,681 (year ending 30.6.2018) + $105,669 (year ending 30 June 2019) + $75,763 (year ending 30 June 2020).
Turning to Period 3, I accept the claimant’s evidence that he employed a full time chef from April 2020 to undertake the work he is unable to perform as a result of his accident related injuries. Other than the pay record for the week ending 4 June 2023, I do not have any wage records that confirm the wages paid to this employee. I do, however, have a letter from Mr Crittenden, Managing Director of ‘austrain academy’, dated 15 October 2022. Among other matters, the letter states that chefs “with any ability” have been for some years, and are currently, demanding amounts greater than $70,000. I accept that this reflects Mr Crittenden’s experience in the hospitality industry.
As I understand the position, there is no dispute about the accuracy of the summary of Agno Investments’ profit and loss in Schedule 4 of Ms Lindsay’s report. That summary discloses that wages and salaries for the years ending 30 June: 2017 ($205,568), 2018 ($208,928), 2019 ($201,485), 2020 ($148,411), and 2021 ($199,361). I do not have details of the year ending 30 June 2022. Other than the year ending 30 June 2020 the wages and salaries recorded in the profit and loss were generally consistent. However, Jobkeeper payments were made in the financial year ending 30 June 2020 in the sum of $34,000. When added to the wages and salaries for that year, a figure of $182,411 is arrived at. There were also Jobkeeper payments made in the year ending 30 June 2021 in the sum of $61,500. When added to the wages and salaries for that year, a total of $260,861 is arrived at. This would represent a material increase in wages and salaries based on previous years. It is possible that the sums paid as part of the Jobkeeper program, when added to the wage and salary expenses, account for the additional salary paid for the replacement chef. While the 2022 profit and loss for Agno Investments is likely to provide further insight in relation to wages that have been paid, that evidence has not been provided to me.
For Period 3, the claimant moves from a replacement labour claim to a claim based on the value of his personal exertion by reference to comparable net earnings of $1,678.23 a week. The claimant submits that the amount allowed for this period should be reduced by 15% to account for the impact of the covid lockdowns. The insurer argues that no allowance should be made for Period 3.
I have already rejected the methodology employed in Mr Shields’ report dated 6 December 2021 with respect to the calculation of the claimant’s probable earnings, in particular at [51]-[54]. I accept the criticisms of this approach made by Ms Lindsay in the joint report; in particular, it is only based on one year of trading, which is not representative of the average levels of profit.
The claimant’s oral evidence on 15 June 2023 was that from approximately March 2021, when “covid hit”, the business stopped using labour hire, and employed a chef to work at Litani’s. The business continued trading during the lockdowns, using Uber and other delivery providers. He also delivered food. His evidence was that a cleaner was not employed, as that role was no longer required after the installation of the weather blinds. Nor was a sales assistant required, as the chicken shop had been sold. I accept the claimant’s evidence about these matters. I do not, however, accept the claimant’s evidence that the chef’s salary was “at least $75,00 a year” plus holiday pay and super; it is not supported by the pay record that I have been provided.
The pay record referred to is for the week ending 4 June 2023 (pay record). It discloses that the employee was paid $1,100 net a week for a 38 hour week at $36.875 an hour. I find that the pay record relates to a chef employed to work at Litani’s, and that the contents of the pay record are accurate.
I find that the chef with respect to whom the pay record relates was employed by Agno Investments to perform the work that the claimant cannot undertake in the kitchen as a result of his accident caused incapacity. I also find that the employed chef commenced work at Litani’s in or about April 2020, and has remained employed since that time. I find that the chef’s current earnings are as disclosed in the pay record. That pay record is generally consistent with what Mr Crittenden recorded in his letter about wages that experienced chefs are commanding in the hospitality industry.
I have found that, prior to the accident, the claimant was working seven days a week for up to 14 hours a day. This equates to 98 hours a week. Litani’s is now only open five days a week. Working 14 hours a day, five days a week, would amount to 70 hours a week. I have found he has the capacity to work up to 20 hours a week. I do not consider it appropriate to use the difference between the pre-accident hours and his post-accident capacity to measure his loss. This is because I have determined that for Period 3, the appropriate measure of the financial loss occasioned by the claimant’s impairment of earning capacity are the wages paid to the employed chef. The employed chef, like the labour hire chef, has been engaged as replacement labour for the claimant. In employing the chef, the claimant has mitigated his loss in the same way as he did with the labour hire employees. I find that the damages awarded for Period 3 should reflect the cost of employing the chef to undertake the work the claimant cannot do.
I find that, but for the accident and his consequential loss of capacity, the claimant would have expected to have the sum that has been used to pay the wages of the employed chef under his control and disposal. The claimant has, in these circumstances and in this way, suffered a loss of income, and this loss of income is a financial consequence of his lost capacity.
The claimant could have provided evidence about the wages paid to the chef for the entirety of Period 3. All I have is one pay record for one week. However, I have determined that the chef was employed for the entirety of the period to replace the claimant, and I have found that the pay record is accurate.

On the basis of the pay record for the week ending 4 June 2023, I am satisfied that the employed chef is currently earning $1,100 net a week. I am not satisfied that the chef’s net weekly earnings over the entirety of Period 3 were that high. The period covers over three years. Earnings are likely to have been lower at earlier points in the period. To take this into account, I propose to reduce the amount of $1,100 by 6% and use that sum, $1,034, as the average over the entirety of Period 3. I have reduced the net earnings on this basis to reflect increases in the wage price index over the period.[18] I propose to assess this period until 30 June 2023. There are 169.5 weeks in Period 3. To take into account the effect of the covid lockdowns, I find that the weekly loss for Period 3 should be reduced by 20% for two years (104 weeks). For the remainder of the period, 65.5 weeks, I allow the full $1,034. This results in an award of $153,756 for Period 3, calculated as follows:
· 104 weeks x $827.20 ($1,034 less 20%) = $86,029
· 65.5 weeks x $1034 = $67,727
[18] Year ending 30 June: 2020 1.8%, 2021 1.7% and 2022 2.6% based on ABS data.
Given my findings, I assess the sum of $436,869 for past economic loss comprised as follows:
·        Period 1     Nil
·        Period 2     $283,113
·        Period 3     $153,756

Future economic loss – findings and award

The parties agree that the claimant's most likely future circumstances, but for the injuries he suffered as a result of the accident, were that he would continue to work as proprietor/cook/chef at Litani's[19]. The evidence provides ample support for a finding to be made in these terms and I make that finding for the purposes of s 126 of the MAC Act.
[19] AF at [13].
The claimant submits that, with respect to s 126, his most likely future circumstances but for the injury are that he would have continued in his pre-incident role, working well beyond a normal retirement age, in the expanded form of Litani’s, and in a business that survived covid. He submits that no other “s 126 matters” are relevant.[20]
[20] Claimant’s amended submissions on economic loss dated 21 March 2023 at [9].
I have found that, for the purposes of s 126 of the MAC Act, the claimant's most likely future circumstances, but for the injuries he suffered as a result of the accident, were that he would continue to work as proprietor/cook/chef at Litani's. Given his passion for the business, together with his track record of performing this work prior to the accident, I find that he would have continued to work in this capacity until he turned 67 years of age.
The findings above represent what the claimant could have done in the workforce but for the accident. To be entitled to an award for this head of damage, the claimant must prove, on balance, that his loss of capacity is productive of financial loss.
I accept the claimant’s submission that the success of the business cannot be equated to there being no loss of earnings. That the business has made a profit in the years ending 30 June 2020 and 2021[21] does not mean that the claimant’s loss of capacity to earn has not been productive of financial loss. There is a financial loss because Agno Investments has employed a chef to undertake the work the claimant can no longer do as a result of his accident caused loss of capacity. I have found that he does have a capacity to undertake various tasks at Litani’s, and have rejected the argument that he has no meaningful capacity. Critically, however, I have found that the claimant is not capable of undertaking work as a chef at Litani’s, on either a full-time or part time basis. In addition to the work he did as a chef prior to the accident, the claimant performed other duties, including duties that are consistent with those he is now performing. The critical impact that his accident caused injuries have had on the claimant’s capacity to earn is that he can no longer work as a chef.
[21] The net profit for the year ending 30 June 2020 was $187,456 and $569,971 the following year.
Evaluating the financial performance of Agno Investments does not assist in assessing the financial loss that flows from the claimant’s loss of capacity, in circumstances where Litani’s has continued to trade because it has employed someone to take on the claimant’s pre-accident duties as a chef, having previously engaged labour hire employees.
I find that the claimant’s contribution to his business is not capable of being calculated on a strictly mathematical basis using the financial records of the business. This is because Agno Investments operated at a profit in the financial years ending 30 June 2020 and 2021, in circumstances where the work previously performed by the claimant (and that he is no longer able to perform) was replaced, initially by labour hire staff and then an employed chef. Further, his wife has taken over some of his responsibilities.
I find that the appropriate approach to measure the financial consequences that flow from the claimant’s loss of capacity is to place a value on his likely contribution to the operations of his business but for his injuries by reference to the cost of engaging another person to do what he would have done had he not been injured.
I have found that the claimant was doing more than working as a chef pre-accident, and have made findings in this regard. In my assessment, the appropriate measure of his loss, that takes into account his capacity to earn, is an amount that reflects what the employed chef who replaced him in the kitchen is earning. I accept the accuracy of the pay record for the chef for the week ending 4 June 2023. I find that the net weekly earnings of the chef, $1,100, are an appropriate measure of the loss flowing from the claimant’s loss of capacity. If the claimant had not been injured, he would have had at his disposal that sum of money that is now being paid as wages to the chef.
I assess future economic loss of $1,100 a week to age 67. The claimant is 60 years of age. The multiplier for 7 years is 309.4. After a deduction of 15% for vicissitudes, the award for this head is $289,289.

Past and future superannuation

While the claimant’s written submissions argue that an award should be made for loss of superannuation, at the resumed hearing on 15 June 2023 Mr Romaniuk SC confirmed that the claimant did not press that submission, and did not argue that an allowance for past or future loss of superannuation should be made. I make no allowance.

Past out of pocket expenses

It is agreed between the parties that the claimant has received s 83 payments in the sum of $3,944.72, and that the claimant has incurred further out of pocket expenses in the past in the sum of $13,466.90. This brings the total claim for out of pocket expenses to $17,411.62.
The parties confirmed on 16 June 2023 that there were no disputed past out of pocket expenses, and that the past out of pocket expenses were agreed in the sum of $17,411.62. I award that amount.

Future out of pocket expenses

Other than with respect to surgery, the parties have agreed to an allowance for future out of pocket expenses in the sum of $12,988.90. I am satisfied on the evidence available to me that it is appropriate to allow that sum for future out of pocket expenses.
The claimant’s case is that he will also incur out of pocket expenses associated with future left shoulder surgery. In his report of 17 November 2022, Dr Trantalis stated that there is a possibility that the claimant may need surgery if his left shoulder deteriorates. The report records that the cost of the surgery could be between $15,000 and $20,000.
The insurer’s position is that no allowance should be made for the surgery. The insurer relies on the opinion of Dr Wallace in this regard.
The claimant’s statement of 13 September 2022 records at [53] that he is apprehensive about future left shoulder surgery, and does not wish to undergo the surgery. In his oral evidence he said that he did not want the surgery. If surgery was recommended, his evidence was that he would “[a]lways listen to the specialist”. He was, however, “[v]ery hesitant” to have another operation.
Dr Herald expressed the opinion that surgery is probably not warranted. Dr Rosenthal thought the claimant may require further surgery to his left shoulder. In Dr Wallace’s opinion, the claimant would not benefit from operative intervention.
To take into account the possibility that the claimant may require left shoulder surgery, and that he may undergo that surgery, I allow $5,000 as a cushion. This brings the total sum assessed for future out of pocket expenses to $17,988.90.

Past care and assistance

The claim initially made under this head has been amended to take into account s 141B of the MAC Act. The claimant’s case now is that he is entitled to be compensated for past domestic care in the sum of $6,706.33, representing 7.84 hours a week for a period of 28 weeks, at $30.55 per hour. His case is that he received gratuitous domestic care of 6.84 hours a week and personal care of one hour a week between 20 May 2017 and 1 December 2017.
The claimant concedes that, from 2 December 2017 to date, the gratuitous care he has received does not meet the threshold imposed by s 141B. No claim is made for this period.
The claimant also seeks awards of $4,200 for lawn mowing expenses, $6,300 for gardening expenses, and $3,850 for car washing expenses he has incurred. The insurer disputes the entitlement to damages for these expenses on the basis that they are not corroborated.
The claimant’s evidence is that prior to the accident he was very active at home performing domestic and maintenance duties. His evidence is that he regularly mowed the lawns, attended the hedges, raked, swept, and cleaned the exterior of the house. While he provided some assistance, his wife largely undertook the household cleaning. His evidence was that he also participated in food preparation, and at times attended to vacuuming, cleaning and laundry, albeit in oral evidence he said that he had “never used a washing machine in [his] life”. His evidence is that he is now unable to undertake a range of domestic activities. His evidence is that he employs a gardener every two to three weeks, and that he has received assistance from his family for domestic tasks that he previously managed independently.
In oral evidence the claimant said he would undertake gardening work pre-accident when he went home after the lunch service. He found doing the outside work relaxing. He has eight foot hedges around his house that require a lot of maintenance. He said that after the accident he was unable to undertake duties that involved bending and the use of his left wrist and arm. He has not been able to use the hedge clipper, mower or rake. He was not able to wash his car. His wife and mother-in-law undertake the domestic duties. He agreed that he was “pretty sure” he could vacuum with difficulty.
He agreed, in response to questions from Mr Wilson, that prior to the accident his car was washed at a commercial car wash, a history recorded by Mr Byrnes. He said that he cooked at home pre-accident.
The claimant’s mother-in-law provided a statement dated 18 July 2022. She stated that over the last few years she stayed with the claimant five to six nights a week. She stated that after the accident the claimant appeared to be in a great deal of pain and that help was needed around the house. She attended to cooking, washing and changing bed linen, cleaning and tidying, and looking after her grandson. She thought that the injuries suffered by the claimant in the accident had impacted his family life and day to day living.
In her statement dated 13 September 2022, the claimant’s wife stated that prior to the accident the claimant would maintain the lawns and hedges and assisted with all household duties. She stated that the claimant did not assist with that work after the accident. He no longer does the cooking. Someone now mows the lawns and deals with the hedges. Her evidence is that the claimant can do light chores intermittently. She and her mother undertake most, if not all, of the duties he used to perform around the home.
The claimant relies on a report of Melissa Sale, occupational therapist, dated 27 July 2020. Ms Sale made various recommendations in relation to the claimant’s need for past and future care and assistance. The claim for future care is based on Ms Sale’s recommendations. The limitations that gave rise to care needs related to the claimant’s left shoulder, neck and back injuries.
The insurer accepts that the claimant would have required assistance immediately following both the accident and the left shoulder surgery. However, the insurer argues that the opinion of Ms Sale should not be accepted, and that the opinion of Mr Byrnes should be preferred. In the insurer’s submission, there should be no allowance for past gratuitous assistance. The insurer argues that, to the extent that the claimant relies on statements prepared by his wife and his mother-in-law, these are not determinative of the question before the Commission; the critical issue is reasonable accident-related need as opposed to simply how much assistance the claimant has allegedly been provided.
I find that prior to the accident the claimant assisted with housework, undertook some cooking, and attended to the gardening. Given the nature of his accident caused injuries, and the disability arising from his injuries, I find that between the date of the accident and December 2017, a period of 28 weeks, he was provided with, and reasonably required, assistance from his wife and mother-in-law that amounted to an hour a day. At a rate of $30.55 an hour, this results in an award of $5,988.
With respect to the claim for paid lawn mowing and maintaining the hedges, I have not been provided with any accounts, receipts, or records of payment. In the absence of this evidence, I am not satisfied that an allowance should be made for these services.
I find that the claimant was paying for his car to be washed prior to the accident. There is no reason why this would not have continued had the accident not occurred. I make no allowance for past and future car washing.

Future care and assistance

As with the claim for past care and assistance, the claim under this head has been the subject of revision by the claimant. He now seeks an award on the basis that he will require future commercial care of two hours per week for life at $56.25 per hour. On this basis, an award in the sum of $86,478.75 is sought.[22] The claimant does not seek an award for future gratuitous care.
[22] 2 x $56.25 x 768.7 (5% multiplier for 26 years).
A claim is also made for future lawn mowing expenses of $26,904.50 ($35 a week x 768.7[23]), car washing in the sum of $30,748 ($40 a week x 768.7) and equipment in the sum of $5,000.
[23] 5% multiplier for 26 years.
The insurer argues that the opinion of Mr Byrnes should be preferred over that of Ms Sales. In the insurer’s submission, an award of $21,870.33 should be made to reflect the provision of 1.11 hours of commercial assistance a week for home maintenance and gardening tasks to age 75, at $40 an hour, less 15% for vicissitudes. The insurer submits that the claimant’s need for assistance created by the accident would have ultimately been taken over by any need created with his advancing age. Accordingly, the insurer submits that any allowance for future care ought to be allowed to aged 75.
Care and assistance that the claimant has required to date has been provided by his wife and mother-in-law. I am not persuaded that the gratuitous assistance he is being provided, and will require, would cease at some time in the future so that commercial care will be necessary. While there will come a time when his mother-in-law, who is nearly 74 years of age, is no longer able to provide the domestic assistance that she has been providing, I find that, other than with respect to heavier home maintenance and gardening work, his domestic assistance needs will continue to be provided by his wife.
I am satisfied that the claimant’s injuries will prevent him from undertaking heavier home maintenance and gardening work, including maintaining the hedges. I find that the allowance proposed by the insurer is the appropriate basis upon which an award should be made in this regard. 1.11 hours a week at $40 an hour is $44.40 a week. The multiplier for 15 years is 555.0. After a deduction of 15% for vicissitudes, this results in an allowance of $20,946.
As recorded earlier, I make no allowance for car washing.
The claimant seeks an allowance for equipment and the replacement thereof in the sum of $5,000. In her report, Ms Sale made a number of recommendations with respect to equipment the claimant required as a result of his accident caused injuries: long-handled sponge, dressing stick, raised toilet seat with arm rest. She also recommended the provision of a robotic floor cleaner, a comprehensive OT driving assessment and the provision of driving aids. In his report, Mr Byrnes made recommendations about equipment required by the claimant. He supported the need for a long-handled sponge, dressing stick, and raised toilet seat with arm rest.
I find that as a result of his accident caused injuries, the claimant will require a long-handled sponge, dressing stick, and raised toilet seat with arm rest, and that the provision of this equipment is reasonable and necessary.
I do not accept that the claimant requires a robotic floor cleaner, as recommended by Ms Sale. Nor am I persuaded that the claimant requires a comprehensive OT driving assessment and the provision of driving aids.
I allow a cushion of $2,000 for equipment. The total award for this head is $22,946.

Assessment of Damages Summary

Under s 94(1)(b) of the MAC Act, I am required to make an assessment of the amount of damages that a court would be likely to award.
I assess the claim as follows on the findings set out above:
·      Non-economic loss  $270,000
·      Past loss of earnings                  $436,869
·      Future loss of earnings               $289,289
·      Past out of pocket expenses     $17,411.62
·      Future out of pocket expenses $17,988.90
·      Past domestic assistance   $5,988
·      Future commercial assistance $22,946
Total $1,060,492.52
The claimant’s damages are to be reduced by, and the insurer is to have credit for, s 83 payments in the sum of $3,944.72. The insurer is to have credit for an advance payment made to the claimant in the sum of $30,000.

DRAFT REASONS

On 3 July 2023 I issued my reasons in draft at the claimant’s request so that matters relating to costs and interest could be addressed. I invited submissions about obvious errors. I now have submissions from the parties with respect to interest, costs and disbursements. Neither party identified any obvious errors.

INTEREST

The claimant claims interest in accordance with s 137(4) of the MAC Act. Section 137 is, relevantly, in the following terms:
“137   Payment of interest
(1) Limited statutory entitlement A plaintiff has only such right to interest on damages payable in relation to a motor accident as is conferred by this section.
(2) Attendant care services No interest is payable on damages comprising compensation under section 141B. A court cannot order the payment of interest on such damages.
(3) Non-economic loss No interest is payable on damages awarded for non-economic loss. A court cannot order the payment of interest on such damages.
(4) Other heads of damages The following provisions apply to damages, other than damages to which subsection (2) or (3) applies, payable in relation to a motor accident—
(a)  Interest is not payable (and a court cannot order the payment of interest) on such damages unless—
(i)  information that would enable a proper assessment of the plaintiff’s claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or
(ii)  the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or
(iii)  if the defendant is insured under a third-party policy or is the Nominal Defendant, the insurer has failed to comply with its duty under section 83, or
(iv)  if the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.
(b)  The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff’s full entitlement to all damages of any kind.
(c)  For the purposes of this subsection, an offer of settlement must be in writing.
(5) Calculation of interest …
(6) Rate of interest…
(7) Judgment debts …”

The claimant relies on written submissions dated 11 July 2023. The submissions record that he claims interest on past economic loss pursuant to s 137 of the MAC Act. The claimant relies on, alternatively, sections 137(4)(a)(i), (ii) and (iv). He submits that interest in the sum of $50,658.75 should be awarded.
The claimant’s submissions include a chronology of events he considers to be relevant to his claim for interest. I have considered the chronology.
He submits that with the service of the economic loss report on 7 December 2021, and the occupational therapist report on 27 January 2022, the insurer was in a position to make “a proper assessment of the claim”. It is argued that all other relevant medical reports and supporting documentation had been served by the claimant prior to those dates. I do not agree; review of the joint bundle reveals that material relevant to the assessment of damages came into existence after 27 January 2022. That material includes witness statements, accountant’s reports, and medical reports.
The claimant’s submissions record that the insurer’s only written offer, in the sum of $950,000 inclusive of costs, was made on 21 September 2022. It is argued that at the time the offer was made, the insurer had been in possession of all relevant medical reports and supporting documentation for the purposes of sections 137(4)(a)(i) and (ii), and was in a position to make “a proper assessment of the claim”, and the insurer had a reasonable opportunity to make an offer, or to make a further offer. Accordingly, it is argued, s 137(4)(a)(i) and (ii) are satisfied.
For the reasons given in his submissions at [11] – [13], the claimant argues that s 137(4)(a)(iv) has also been satisfied. The claimant submits that as these proceedings are not court proceedings, the entitlement to interest is not discretionary, and relies on Najdovski v Crnojlovic (2) [2008] NSWCA 281 (Najdovski) at [11] in support of this submission.
In Najdovski, Basten JA held, relevantly, as follows at [11]:
“…In Thomas v Eyles (1998) 28 MVR 240, at 255 (Priestley JA, Beazley and Stein JJA agreeing) the Court held that where the various paragraphs of sub-s (4) were satisfied, there was no discretion to decline to include interest in the award of damages. However, in Tran v The Government Insurance Office of NSW (No. 2) [2001] NSWCA 211; 51 NSWLR 733 at [6] this Court appears to have treated s 73 of the Motor Accidents Act not as a source of power, but as a constraint on the exercise of a pre-existing statutory power, in that case identified as s 83A of the District Court Act 1973 (NSW). Accordingly, the award of interest remained discretionary, in accordance with principles applicable with respect to the general statutory provision.”
In Allianz Australia Insurance Limited v Crazzi and Others [2006] NSWSC 1090, Johnson J held at [147] “[t]he determination of the claim for interest required the exercise of an independent discretion under s.137 MAC Act.” Ultimately, I do not need to determine whether the entitlement to interest is discretionary.
The insurer relies on submissions dated 18 July 2023. The insurer agrees that its highest written offer, that was made by email on 21 September 2022, was $950,000.00 inclusive of costs (offer). The insurer argues that s137(4)(a)(i), (ii) or (iv) of the MAC Act have not been satisfied, and that there ought be no award for interest.
The insurer’s submissions include a chronology of events that it relies on. I have considered that chronology. I have also considered the matters referred to at [11] – [18] of the insurer’s submissions.
I accept the insurer’s submission that s 137(4)(a)(i) is not triggered because it did make an offer of settlement: see also Najdovski at [12].
The insurer argues that following the offer, and the assessment conference on 30 November 2022, the claimant foreshadowed an amendment to his claim. The insurer submits that the precise ambit of the claim was not apparent until the claimant’s closing submissions. I accept this submission. In addition to serving additional evidence prior to the assessment on 30 November 2022[24], the claimant adduced further evidence that was relevant to the assessment of economic loss at the part-heard assessment on 15 June 2023.
[24] Documents A43 – A45 in the joint bundle.
I accept the insurer’s submission that it was not in a position to revise the offer as it did not know the claim it was meeting until closing submissions and further evidence was tendered. I find that s 137(4)(a)(ii) is not engaged.
As to s 137(4)(a)(iv), the insurer disputes that its highest offer was unreasonable having regard to the information available. Having regard to the evidence that was available to the insurer, and the evidential flaws in the claimant’s case, as set out at [30] of its submissions, the insurer argues that its highest written offer was entirely reasonable.
The offer was inclusive of costs. The claimant’s submissions at [11] – [13] provide bases upon which a determination may be made with respect to whether the award of damages is more than 20% higher than the offer. The insurer’s submissions acknowledge at [28] that the damages awarded are 20% more than the highest amount it offered, once the claimant’s costs and disbursements are taken into account. I am satisfied that that element of s 137(4)(a)(iv) has been established.
In Najdovski, it was held at [26] that:
“ …Ultimately reasonableness depends upon an objective assessment of the circumstances and, where the material before the Court does not materially differ from that available to the defendant at the relevant time, the judgment of the Court must be treated as, subject to recognition that no precise figure is necessarily correct, a baseline for determining the reasonableness of the offer.”
I find that the material before me when I assessed damages did materially differ from that available to the insurer when it made the offer. The bases upon which the claim was formulated were changed after the offer was made, including with respect to the claim for economic loss. In this regard, I note the additional submissions lodged by the claimant after the assessment on 30 November 2023, including submissions addressing the claim for economic loss. Further, evidence of the salary paid to the replacement chef was tendered at the part-heard assessment on 15 June 2023. I find that when the offer was made, the insurer was not able to make a reasonable assessment of the claimant’s full entitlement to all damages of any kind.
I am not satisfied that the offer was unreasonable having regard to the information available to the insurer when the offer was made. I find that the claimant is not entitled to interest on the past economic loss assessed.

COSTS

Costs and disbursements have been agreed between the parties, as set out in the schedule of agreed costs and disbursements lodged with the Commission on 20 July 2023. The costs award in the certificate reflects that agreement.

[2023] NSWPIC 375

21 July 2023