Agustin v AAI Limited t/as GIO
[2023] NSWPIC 198
•2 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Agustin v AAI Limited t/as GIO [2023] NSWPIC 198 |
| Claimant: | Melanie Agustin |
| insurer: | AAI Limited t/as GIO |
| Member: | Shana Radnan |
| DATE OF DECISION: | 2 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages under Division 7.6, subdivision 2; non-economic loss $200,000; claimant suffered injury to neck, right shoulder, back, right arm and elbow; aggravation of degenerative changes; past loss and future economic loss; most likely future circumstances but for the accident; reliance on comparable employee’s earning capacity; Held – damages assessed according to sub-sections 7.36(3) and 7.36(4). |
| determinations made: | CERTIFICATE OF DETERMINATION 1. On the issue of liability for the claim GIO’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-ss 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017 (the Act), I specify the amount of damages for this claim as $466,724.35. 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $45,630.20 inclusive of GST. 4. The insurer is to have credit for weekly statutory payments pursuant to s 3.40 in the sum of $36,245.01. |
REASONS FOR DECISION
BACKGROUND
Melanie Agustin (the claimant) was driving home from work when the insured ran a red light and collided with her vehicle. Damage was reported to the right side of the vehicle and the claimant reported her right shoulder made contact with the door. No airbags were deployed and she was able to self-extricate from the vehicle.
Police attended the scene. No ambulance was called. The claimant drove home. She attended her general practitioner (GP) Dr Lagaida two days later complaining of right shoulder pain, neck and back pain and difficulty breathing. Over subsequent weeks her condition did not improve and physiotherapy was undertaken. Specialist opinion was obtained wherein Dr Huang recommended conservative treatment.
A claim for personal injury benefits was made on 18 July 2019. Liability was wholly admitted by the insurer. An application for common law benefits was lodged on 18 December 2021. The application for assessment of Damages was lodged with the Personal Injury Commission (the Commission) on 29 September 2022.
The insurer conceded that the claimant’s whole person impairment exceeded 10% on 22 August 2022.
Assessment Conference was conducted in this matter by video-link on 3 February 2023 with further directions to produce written submissions and additional information post-assessment as it related to schedules of damage, comparable wages and final submissions. A further post assessment teleconference was held on 16 March 2023 with the parties seeking to address final submissions and 3.40 payments made.
The matters requiring assessment are limited to the amount of non-economic loss, past and future economic loss the claimant should receive.
At the assessment the claimant gave evidence and was also questioned by the insurer’s counsel. Final submissions were delayed until the insurer had an opportunity to address the late information produced at the assessment by the claimant as it related to comparable employees.
The additional information and submissions were contained and uploaded as documents AD14 dated 6 March 2023, AD16 dated 21 March 2023 and AD17 dated 11 April 2023.
The position of the parties as to quantum of damages at the conclusion of the Assessment Conference.
Head of Damage
Claimant
Insurer
Non-economic loss
$200,000
$ 145,000 -175,000
Past economic loss inclusive of superannuation
$201,273
$62,769.03
Future economic loss inclusive of superannuation
$70,950.87
$16,580
Total
$472,223.87
$224,349.03 – 254,349.03
The claimant’s prior medical history
The claimant in 1996 experienced back pain whilst working as a housekeeper. She reported this resolved within a few months.
There is a history of hyperparathyroidism and a parathyroid adenoma was removed.
The claimant’s claimed injuries in the subject accident
The claimant contends she sustained the following injuries and disabilities:
(a) headaches;
(b) injury to cervical spine;
(c) injury to right shoulder;
(d) injury to thoracic spine;
(e) injury to lower back;
(f) injury to right arm, and
(g) psychological trauma.
As a consequence of the injuries sustained in the motor vehicle accident the claimant contends that she suffers the following ongoing disabilities:
(a) pain and tenderness to neck;
(b) pain, tenderness and restriction of movement of right shoulder;
(c) shooting pain to right hand when straightening right elbow;
(d) radiation of pain from right shoulder into chest;
(e) intermittent paraesthesia down right arm;
(f) tingling sensation to right thumb and index finger;
(g) intermittent back pain, particularly after sitting for prolonged periods;
(h) pain and tenderness to right elbow;
(i) pain in shoulder blade;
(j) difficulty sleeping on right side shoulder;
(k) shooting pain to lower back;
(l) shooting pain to right leg to big toe;
(m) ongoing headaches;
(n) difficulty lifting more than 2kg with right arm, and
(o) intermittent bouts of dizziness, trembling and nausea.
Medical information
Claimant’s reports
Her GP Dr Lagaida confirmed ongoing right shoulder pain in his report dated 4 January 2020. Later reports indicated that her right shoulder pain, shoulder blade, neck and arm pain was not improving. On 17 February 2021 he reported an MRI of the right shoulder show tears of the right rotator cuff, 10mm longitudinal tear of the long head of bicep tendon.
Dr Ng confirmed mild oedema in the rotator interval -post traumatic capsulitis.
Physiotherapy notes of Justin Graham reported pain levels fluctuating and were activity dependent. Neck movements cause increased neck, shoulder and arm pain.
Dr Huang her treating orthopaedic surgeon found scapulothoracic dyskinesia and recommended physiotherapy. He considered injection into the shoulder to monitor management options. Despite two cortisone injections the pain worsened.
Dr Hunjan reviewing an MRI of the right shoulder dated 6 February 2021 commented “persistent cuff tendinopathy, subacromial bursitis, MR features highly suggestive of frozen shoulder.”
A medico-legal opinion was sought from Dr Woo on 22 March 2021. The claimant complained of ongoing right shoulder pain which extends to the right upper chest as well as the right scapula and right axilla. She reported difficulty sleeping on her right side, right sided neck pain, tingling in the thumb and index finger of her right hand. Back pain was triggered on sitting for more than one hour and right elbow pain had been triggered within three months of the accident. Dr Woo opined she sustained a traction injury to her right shoulder as well as soft tissue injuries to her neck and back. Features of adhesive capsulitis/frozen shoulder were noted in all MRI scans but no evidence of discrete real adhesive capsulitis. The presence of a partial or complete tear of a tendon constituted a “non-minor injury”. (Claimant’s Bundle “CB” pp 47 of 184)
In his follow up report dated 21 February 2022, Dr Woo recorded the ongoing complaints of:
(a) right shoulder pain;
(b) right elbow pain;
(c) increasing neck pain;
(d) tingling in right arm involving three fingers, and
(e) low back pain on sitting for more than two hours.
Dr Woo confirmed her injuries sustained in the accident were
(a) right shoulder traction injury causing tear of the long head biceps tendon;
(b) cervical spine soft tissue injury;
(c) lumbar spine soft tissue injury;
(d) right elbow soft tissue injury;
(e) C6 radiculopathy, and
(f) restricted movement in the right shoulder.
Dr Woo opined that”
“…as a result of her ongoing disabilities, Ms Agustin is unfit to return to her pre-injury duties. Her neck and right shoulder injuries have stabilised, She had developed chronic pain which will persist into the foreseeable future. Her prognosis of full recovery is unlikely.. Her back injury has not stabilised. The prognosis is uncertain at this point in time.” (CB p126 of 184)
Dr Gray found the claimant sustained C6 radiculopathy with bilateral C6-C7 forminal stenosis and right C5-C6 foraminal stenosis. This radiculopathy, “which seems to have been aggravated by the motor vehicle accident”.
Insurer’s reports
The insurer relied upon the opinion of Dr Doig who provided a report dated 1 July 2022. His diagnosis was:
(a) A soft-tissue injury to the cervical spine on a background of pre-existing degeneration, particularly at the C5/6 level, which most likely has been aggravated.
(b) A soft tissue injury to the lower back, again with aggravation of facet-joint degeneration.
(c) A soft tissue injury to the right shoulder with ongoing pain and restricted movement, most likely as a result of a trapezius-muscle injury.
His determination of whole person impairment was 15%.
Dr Doig also noted restrictions when commenting on domestic assistance. These were also applied to work related tasks:
“Ms Agustin will have a less than 10kgs lifting pushing pulling restriction with limited bending and twisting through the spine. She will require breaks from prolonged sitting and driving. She should avoid lifting pushing and pulling more than 5kgs at or below waist height with the dominant right arm. She has difficulty using the right arm overhead and certainly not be lifting weight overhead. All activities exceeding these restrictions should be avoided.” (Insurer’s bundle “IB” p135 of 184)
Medical assessment services
Medical Assessor Wijetunga assessed the claimant’s shoulder injury on 15 July 2020. At that time, the assessor relying on the available ultrasound and MRI findings certified that her right shoulder injury satisfied the definition of a “minor injury”.
In his further assessment undertaken on 27 October 2021 his determination changed. He determined that the right shoulder – biceps tendon tear was not a minor injury for the purposes of the Motor accident Injuries Act 2017 “the Act”. At the time of this second assessment the claimant reported the following symptoms:
(a) constant neck pain extending to temporal region of the skull;
(b) pectoralis muscle pain;
(c) pain extending to dorsal aspect of first and second finger with weakness of right hand, and
(d) right shoulder pain radiating from neck.
Claimant’s submission on injury
On seven occasions relied upon by the insurer where the claimant made complaints to her GP between 6 March 2013 and 17 August 2018 only represents a small percentage of the consultations when the claimant saw her doctor during this period. She attended on 42 occasions. The complaints appear to have resolved within a short space of time as they are not referred to in subsequent consultations.
There is nothing to indicate the claimant took time off work in respect of any condition she suffered before the accident. There is no indicate that any claim was made in relation to a slip at work and pay records reveal only one day sick leave taken for 18 August 2018.
Whilst the insurer has made reference to each occasion a compliant was made to Dr Lagaida, the lack of recollection of such complaints does not lead to a conclusion that the claimant was untruthful because she did not recollect such events spanning over a six year period before the subject accident.
The claimant relies on the medical evidence produced in the matter that supports her claimed injuries to right shoulder, neck and back.
Insurer’s submission on injury
The insurer provided submissions on injury as follows:
“8. The Member is respectfully referred to the following:
(a) Neck symptoms:
(i)Contained within the clinical records of her local medical officer, Dr Lagaida,there was reference to neck pain on 3 November 2015 in the context of her employment.
(ii) The claimant first saw Dr Lagaida after the accident on 8 July 2019. On that occasion he recorded
‘CNS: Headache. ain in rgith shoulder, stiff in right shoulder,
Examination: ROM – neck full, tedner right trapezius, right arm.’ (sic)
(iii) The next reference to her neck occurred some 6 months later on 4 January 2020 in context of the pain from her right shoulder radiating into the right side of her neck.
(iv) A further 6 months later on 28 July 2020 he recorded:
‘History: Still has pain in right shoulder, neck, right arm, forearm hand,
ain is worse, lwyer request repeat MRI.’[sic]
(v)On 19 November 2020 symptoms in her neck were referred to although again in the context of emanating in the right shoulder. It was in August 2021 a CT scan was requested in respect of the neck.
(b) Back Pain
(i) In relation to back pain, again the Member would observe references to same prior to the motor vehicle accident. In particular, on 6 March 2013 he recorded:
‘History: At work lifting, too much back pain. Letter. Work at present
job 1 ½ years unable to tolerate the pain. Letter for Centrelink.’
(ii) There was also reference to back pain in context of her employment on 3 November 2015.
(iii) On 2 August 2018 he recorded:
‘History: Yesterday sprain, upper back, generalised body aches.’(sic)
(iv) When seen after the accident on 16 July 2019 he recorded:
‘History: Still sore in back, unable to work yet., work is lifting.’
(v) There was no further reference to back pain in his clinical records.
(vi) When the claimant initially saw Dr Huang on 3 December 2019 whilst he was told of persistent right shoulder and neck pain since the accident, no reference was made to any low back problems.
(vii) A report from Dr Lagaida dated 23 March 2020 referred to right shoulder, shoulder blade, neck and arm pain but no reference was made to her back problems.
(viii) The certificates of capacity completed by her local medical officer refer to her injuries from the accident as:
‘Right rotator cuff tear, partial.’
(c) No reference was made to either neck or back problems.
(d) The Allied Health recovery request diagnosed the claimant’s injuries as a whiplash associated disorder grade 2. In the first request the physiotherapist observed:
‘Patient reports mild tenderness in the right neck. Pain varies –
intermittent relief from Mobic and use of topical analgesia. Currently
off work. Some difficulty checking blind spots.’
(e)In the AHRR number 4 dated 17 February 2020 the diagnosis at section 2 was amended to include supraspinatus tendon partial tear and subacromial bursitis/impingement. In relation to symptoms the physiotherapist observed ongoing pain in the right neck, shoulder and arm. No reference was made to any low back problems.
(f) When examined by Dr Smith at the request of the insurer on 27 February 2020, no mention was made by the claimant of any back problems.
(g) Document A28 in the claimant’s bundle was a report from Dr Woo dated 21 February 2022. The Member would note that he had previously seen the claimant and provided a report dated 22 March 2021. A copy of that report has not been provided by the claimant and the insurer would respectfully suggest the earlier report should be provided to enable the Member to have a full understanding of Dr Woo’s assessment. At the top of page 3, he recorded that the claimant saw her local medical officer:
‘…on 8 June 2019. She complained of neck pain, back pain and right shoulder pain as well as pain in the right shoulder blade. She was prescribed pain killers.’
(Note: the claimant subsequently addressed the error of the insurer’s submission in that the report of Dr Woo dated 21 March 2021 was produced in the claimant’s bundle at pages 42 to 47.)
(h) Whilst the date of June may well be a typographical error, as noted above, no complaint of back pain was made when she first saw her GP after the accident. Dr Woo recorded her complaint of low back pain. During examination he noted her complaints of slight tenderness although ‘spine movement was normal’.
9. The insurer has conceded the claimant has an entitlement to non-economic loss. In determining suitable damages, the Member is able to form their own view as to the injuries sustained in the motor vehicle accident and in that regard might have some concerns about the nature and extent of the claimant’s allegations of low back symptoms bearing in mind the time which elapsed between the accident and recorded difficulties from the claimant. The insurer does acknowledge the early references to her back however the Member may well have some doubts as to the relationship between the current symptoms and the motor vehicle accident. Whilst it is noted that Drs Woo and Doig appear to have accepted that relationship, it also would seem that was based upon the allegation of immediate and deteriorating symptoms from the time of the accident.”
Findings on injury
Upon review of the submissions and medical records I am satisfied that the claimant sustained injury and has ongoing problems with her:
(a) right shoulder;
(b) neck;
(c) back;
(d) right arm;
(e) right elbow;
(f) right hand, and
(g) psychological sequelae as a consequence of the motor accident.
Non-economic loss
The claimant submitted that non-economic loss ought to be allowed in the sum of $200,000. At the assessment conference the insurer suggested a figure between $145,000 if I accepted the submission that there was no ongoing back injury and $175,000 in the event I accepted back symptoms were accident related.
I have regard to the evidence before me and the clinical records produced which verify the claimant continues to report the ongoing symptoms of neck and right shoulder pain with pain radiating to right arm and hand. She regularly has headaches associated with neck pain.
The claimant is currently aged 65 years and continues to suffer ongoing intermittent pain and restriction of movements.
She continues to suffer ongoing restrictions in her level of activity she is able to undertake without aggravating her symptoms of pain.
In the circumstances, the claimant continues to suffer and will for the remainder of her life. Taking into account to pain and suffering I assess non-economic loss in the sum of $200,000.
Past economic loss
The claimant’s position
The claimant was working at Cormack as a packer. She worked on a roster of 12 hour shifts. Her duties involved manual handling, attending to moulding and assembly machines packing of boxes, monitoring the running of machine some 30 between four staff, filling lifting and weighing boxes, operating controls as well as other tasks requiring lifting bending and carrying at the time of the accident.
Whilst there was a period to 24 November 2019 where the claimant performed some duties between 7.6 hours and 15.2 hours, the period thereafter where the symptoms continued to deteriorate, the claimant was unable to return to employment and her position was terminated in March 2020. She has not worked since.
Due to the nature of her injuries in particular the right shoulder and right hand, she is unable to perform her pre-accident work related tasks. She reported in her statement dated 31 August 2022 at paragraph 40:
“…since the accident when I have attempted to carry objects in my right hand I have occasionally felt bouts of dizziness and nausea. I find I begin to tremble first then this turns into dizziness and sometimes vomiting. I will then experience a severe headache.”
The records of the employer (CB p142 of 184) note the overview of tasks required from a Level 3 operator. These duties were described as:
· attend moulding and assembly machines;
· lifting up to circa 12kg;
· standing, ambulating about the worksite and lifting cartons of finished product and components;
· monitor the running of machines;
· fill lift and weight boxes;
· close seal and label boxes;
· lift box and place onto a pallet;
· manually place caps in machines and visually observe;
· light machine maintenance;
· prolonged standing and walking;
· lifting and carrying boxes;
· pushing buttons on control panels;
· manual dexterity;
· pushing and pulling (approx. 5-10kg for trolley);
· finger, wrist, elbows, shoulder flexion/extension;
· housekeeping, cleaning, packing;
· removing large and heavy reels of materials and replacing;
· waist to shoulder lifting;
· forward reaching;
· bending, and
· grasping.
The nature of the claimant’s restrictions rendered her unfit to return to her pre-accident employment. She had no fitness for manual handling duties required in her pre-accident position. Her position was terminated on 9 March 2020. No suitable positions were available.
The claimant relied upon her payslip which showed her gross weekly amount for the week ending 7 July 2019 was $1,334.04. Pay from week to week varied dependent upon overtime. A calculation was made over the 2019 financial year which included the claimant’s salary sacrifice in the sum of $5,000. This component required reversal when assessing weekly net pay.
The claimant relied upon the earning of a comparable employee Raymond Xie. The claimant says that he had worked at the same level as the claimant with the same job description, doing the same work at the same rate of pay. He worked in rotational shifts for 12 hour periods per shift including weekends and public holidays, as did the claimant. There were records of two others Violeta Cineta and Mark Hughes produced but later excluded by the claimant as their rosters were not the same 12 hour shifts and weekend overtime, as was the case for the claimant and Mr Xie.
The claimant relied upon the employer’s production of payslips for the comparable employee Mr Xie as evidence of her loss as they were on the same roster system and pay scale.
The net income of the claimant based on her taxation return for the 2019 financial year was calculated as $58,689 less tax $7,721.25 less Medicare levy of $1,073.78 = $49,893.97 net per annum amounting to a sum of $959.50 net per week.
Relying on the comparable figure of Raymond Xie, both the claimant and this worker were working on a pay scale as at July 2019 of:
(a) $28.9855 for 24/7 day shift, and
(b) $22.1517 x 1.5 or $22.1517 x 2 for overtime. (R20 Cormack payslip IB 243 and 283.)
The rate of pay as at September 2022, relying on the comparable wage of Mr Xie was $30.6993 for 24/7 day shift and $23.4814 x 1.5 or $23.814 x 2 for overtime” (R20 IB 303)
The claimant undertook some work between 7.6 hours and 15.2 hours up to 24 November 2019, thereafter no further work was undertaken. The claimant conceded the earnings to 24 November 2019 should be deducted from the total sum claimed as this sum had not been deducted previously.
The figure calculated by the insurer was $10,475 after tax and this figure was updated in final submission as $13,445 after tax. The claimant argued that the lesser figure should prevail.
The amount claimed for past economic loss was adjusted from $190,811 to a total of $180,336 for the period to 16 February 2023.
The insurer’s position
The claimant’s reliance on the comparable earnings of Mr Xie was advanced after two other employees Violeta Cineta and Mark Hughes were excluded as not working similar shifts.
The insurer disputed that Mr Xie represented a comparable employee as there was no pre-accident records produced to evidence he worked similar shifts. The lack of pre-injury evidence cannot corroborate the hours and income would mirror the claimant’s earning capacity.
The earnings of Mr Xie were consistently higher than the claimant’s and no evidence has been offered as to why her income would have increased to his level immediately after the accident. Relying upon the comparable data the insurer came to a different view of the claimant’s earning capacity and that of Mr Xie. In submissions dated 27 January 2023 the insurer submitted that the claimant’s net weekly earnings at the time of the accident for the 2019 tax year was $859.48.
The review of Mr Xie’s records revealed that his weekly net income for the year ending 30 June 2020 was $505.89. The year ending 30 June 2021 was $447.58 and the period 1 July 2022 to 16 October 2022 was $821.68 net.
A similar reveal of records of Ms Dineta revealed net weekly income of $389.60 for 2020, $390.31 for 2021 and $566.38 for 2022.
Reviewing Mr Hughes the figures were $540.85, $657.50 for 2022 year.
The claimant has merely chosen the highest earning colleague post-accident and held him out to be a comparable employee. There is no contemporaneous or objective evidence to support the claimant’s self-serving contentions, they should be rejected.
Noting the claimant’s pre-accident earnings were $859.14 and relying upon a medical certificate of her treating doctor dated 9 July 2019 certifying fitness to work 20 hours per week, the insurer submitted that the sum allowed noting the amount of earnings of $13,445 to 24 November 2019 should be deducted from any loss claimed.
Assessment of past economic loss
The claimant at the time of the accident was employed by Cormack Packaging and had been in a full-time role since 30 May 2016. She was a level 3 process worker/machine operator.
Her employment was terminated by the employer on 9 March 2020 as she was unable to return to work with suitable duties and no other duties were available.
The injuries sustained in the accident were such that the claimant was unable to return to her pre-injury employment and she sustained economic loss as a result. I find that the claimant’s injuries have impacted on her earning capacity that she has been unable to return to any form of employment. The medical evidence before me supports the position that the claimant has lost her ability to perform manual positions which involved lifting and carrying and above shoulder activities.
I accept that the restrictions placed upon her by the injuries to her neck, right shoulder and back rendered her unable to perform the required tasks of a level 3 process worker or any other manual labour position. She still suffers ongoing pain and activity exacerbates her symptoms. She has not and will not be able to return to work with her ongoing injuries and disabilities.
Whilst the insurer sought to rely on a medical certificate dated 9 July 2019 certifying a 20 hour fitness for employment, the deterioration of the claimant’s condition as evidenced in the clinical records of treatment and the opinions of Dr Doig and Dr Woo satisfy me that the claimant continues to be unable to return to employment and does not have the residual earning capacity of 20 hours weekly as submitted by the insurer. The medical certificate issued is not accurate.
Relying upon the claimant 2019 tax return, her pre-injury net weekly earnings after reversal of salary sacrifice was $959.50 net.
There is no need to rely on a comparable wage when the claimant’s own pay records evidence her pre-injury earning capacity. I find that the use of the claimant’s own records sufficient to calculate past economic loss. The reliance upon Mr Xie’s records for a one week overlap was indicative of the pay scales applied to the level 3 operators on 24/7 shifts and overtime rates.
The claimant calculated her past economic loss as 156 weeks to 26 June 2022 and relied upon an increase commencing September 2022, based upon the rates noted in Mr Xie’s pay slips indicating a pay increase.
I make the calculation as follows:
(a)The calculation when using the claimant’s pre-accident net weekly sum of $959.50 for 165 weeks to 1 September 2022 amounts to $158,317.50.
(b)From 2 September 2022 for the further period of 34 weeks to 27 April 2023, I accept that the employer increased rates as noted in the pay slip of Mr Xie who was on the same pay scale. After September 2022, the hourly rate increased to $30.6993 for 24/7 day shift and $23.4814 x 1.5 or $23.814 x 2 for overtime. (R20 Payslip IB 303.) The net weekly loss is $1,107.92 net weekly x 34 weeks = $37,669.28.
(c)Total past loss $ 195,986.78 less $10,455 (payments received to November 2019) = $185,531.78
(d)Superannuation at the rate of 9.5% on $185,531.78 = $17,625.52
(e)S4.5(1)(d) damages amounted to $6,266.00
I assess past economic loss in the total sum of $209,423.30.
Future economic loss
The claimant’s position
The claimant would have worked in her employed role until age 67 years. She is turning 67 years on 26 May 2024.
The claim made is the comparable earnings of Mr Xie amounting to $1,107.92 for a further 1 year and a vicissitude of 10% used rather than the usual 15%. The basis submitted for this was:
“..the applicant claims that the vicissitudes for the future should only be reduced by 10% having regard to the fact that she had been in secure employment with this organisation for over 5 years at the date of injury and it was expected that her employment would continue and further, that in terms of her future claim she only had a short period of 1 year until age 67, the date of which damages are restricted by virtue of the legislation. By reason of these factors it is submitted that vicissitudes should be 10% rather than 15%.”
Superannuation on the future economic loss was calculated at the rate of $12.9% in the sum of $8,107.
The insurer’s position
The insurer considered that the claimant had a residual earning capacity of 20 hours weekly.
Relying upon the observations of Benchmark Rehab. The claimant was not willing to undertake any work which was not the same as she had performed at Cormack. She had not attempted to return to any work and failed to mitigate her losses by pursuing alternative employment opportunities.
The insurer argued that failure to mitigate should increase vicissitudes and a deduction of $35% should be applied.
A concession of $16,580 was made to reflect a loss of $25,508 ($859.14/2 x 59.38) in addition the sum of $1,823.82 for superannuation.
Assessment of future economic losses
The Act provides at section 4.7 the following:
“Future economic loss—claimant’s prospects and adjustments
(1) Damages may not be awarded for future economic loss unless the claimant first satisfies the court or claims assessor that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If an award for future economic loss is made, the court or claims assessor is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
I take into consideration the provision of s 4.7 of the Act. The most likely circumstances but for the accident is that the claimant would retire at the age of 67 years and would have remained in employment to the date of her retirement. Whilst the insurer relied upon records of disciplinary reviews, this evidence did not indicate that the claimant was likely to be terminated for poor performance.
The claimant has ongoing symptoms and the nature of restrictions as referred to by Dr Woo and accepted by Dr Doig that impact on the claimant’s ability to return to employment. Having regard to her restrictions she is unlikely to obtain employment on the open labour market noting her employment history and the manual type positions available to her skill set and language barrier.
The impact on the claimant’s future economic loss will continue for the remainder of her working life, just over twelve months from now. On the open labour market, the claimant is at a disadvantage due to her restrictions on securing employment. With her ongoing restrictions on bending, lifting, carrying she is unable to return to work.
I am not convinced by the insurer’s submission that the claimant has a residual earning capacity amounting to 20 hours weekly. The claimant suffers an inability to perform physical tasks due to her neck and right shoulder injuries. There is no evidence before me to establish any employment suited to the claimant with her ongoing restrictions. She is restricted in performing manual tasks, which she is experienced in. She does not have transferable skills. Her age is a disadvantage on the open labour market.
Noting the restrictions as detailed in paragraph 26 of my reasons, which continue to impact on the claimant’s earning capacity and noting the proximity to retirement, I consider it unlikely that the claimant has any residual earning capacity.
Relying on the claimant’s ongoing net weekly loss of $1,107.92, using the multiplier for one year, amounts to a loss of the sum of $56,393.12. The submission of the claimant that vicissitudes should be reduced from 15% should be reduced to 10% noting the proximity to retirement and that the claimant was in secure employment for over five years at the date of the injury, is persuasive. I accept that the sum should be reduced by 10% = $5,639.31.
The insurer made reference to a number of performance issues recorded in the claimant’s personnel file. The oral questioning of the claimant and her description of the quality control procedures, I am satisfied that the claimant’s position with the employer but for the accident would have been that she remained in their employment to retirement.
I assess future economic loss as calculated by the claimant in the sum of $50,753.81 plus $6,547.24 for future superannuation losses (12.9%).
Future economic losses are assessed in the sum total of $57,301.05.
Assessment of damages summary
I assess the claim as follows on the findings set out above:
Non-Economic Loss $200,000.00
Economic losses
·Past loss of earnings (incl. superannuation) $209,423.30
·Future loss of earnings (incl. superannuation) $57,301.05
Total of economic losses and non-economic loss $466,724.35
Total Damages Assessed $466,724.35
Costs and disbursements
Following the claimant’s costs submission received on 27 April 2023, I received the insurer’s submissions on costs on 2 May 2023. The insurer conceded the disbursements and recalculated the stage 3 and 4 costs to avoid duplication.
I assess the claimant’s legal costs and disbursements in accordance with Part 8 of the Act and the Motor Accident Injuries Regulation 2017, in accordance with the attached sheet in the amount of $45,630.20.
CONCLUSION
91.On the issue of liability for the claim GIO’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty.
92.Under sub-ss 7.36 (3) and 7.36 (4) of the Act, I specify the amount of damages for this claim as $466,724.35.
93.The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $45,630.20 inclusive of GST.
94.The insurer is to have credit for weekly statutory payments pursuant to s 3.40 in the sum of $36,245.01.
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