Allianz Australia Insurance Limited v Waters
[2025] NSWPIC 177
•30 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Waters [2025] NSWPIC 177 |
| CLAIMANT: | Mathew Waters |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 30 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; damages claim; assessment required of non-economic loss; impact of surveillance of the claimant; inconsistency demonstrated in claimant’s condition; lumbar fusion and displacement; employer payments and payment reimbursement; unenforceable arrangement for repayment of wages; reduction of value of services; likely future circumstances now diminished; reduced capacity to perform work tasks; intermittent periods off work; Held – damages assessed pursuant to sub-sections 94(3) and 94(4). |
| DETERMINATIONS MADE: | ASSESSMENT CONFERENCE REPORT CERTIFICATE Issued under s 94 (5) of the Motor Accidents Compensation Act1999 Assessment of Claim for Damages made in accordance with s 94 of the Act 1. Under sub-sections 94(3) and 94(4) of the Motor Accidents Compensation Act1999 (the Act),I specify the amount of damages for this claim as $1,129.284. 2. 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 $52,215.38 inclusive of GST. 3. Attached to this certificate are reasons for my assessment. |
BACKGROUND
Mathew Waters (the claimant) is a 47 year old man who was injured in a motor vehicle accident which occurred on 27 October 2015. He was a front seat passenger in a work motor vehicle which was stationary when it was hit from behind by the insured’s vehicle. The insurer has admitted breach of duty of care on the part of its insured driver without any allegation of contributory negligence on the part of the claimant.
The parties have agreed that past treatment expenses which have been paid by the workers compensation insurer, Medicare and this insurer totals $249,464.06. The s 83 payments total $179.70. The claimant was employed in a family operated company, Gosford Signs, and was working three days per week and earning $800 net per week at the time of the accident.
The parties have agreed that the appropriate rate for future commercial care is $45 per hour. Noting these agreements it remains to assess the claimant’s entitlement to non-economic loss, past and future economic loss, past and future domestic assistance and future treatment expenses.
The insurer submits that the material, particularly the surveillance of the claimant, raises issues of credit and credibility of the claimant which ought to be considered when evaluating the remaining heads of damage to be assessed. Further the medical material suggests very divergent degrees of incapacity which, in turn, will affect the calculations of treatment, care and loss of earning capacity caused by the subject motor vehicle accident.
Noting these matters it is appropriate to deal with the material as it relates to the claimant, particularly the surveillance material and the medical material relevant to the claimant’s accident related disabilities.
The claimant
The claimant has provided four statements with the material relied upon in this matter. Further, the claimant was cross-examined extensively at the assessment conference. The claimant can fairly be described as having been active and outdoor type of person before the accident. He worked in the family business being Gosford Signs. He had previously operated a car wrecking yard. He had been an active boat operator and fisherman and enjoyed repairing and maintaining vintage motor cycles with his father. He had been active in surfing, camping and hiking prior to the accident and had been generally in good health.
Following the accident he took some time off work before attempting to return to work with limited success. He states, and I accept, “over the past 9 years I have been on reduced duties and have had to take significant time off work”. In this statements he says that he cannot bend over in the shower to wash himself below the knees. He states he cannot do home duties, washing, cleaning, mowing lawns, washing cars, etc. He cannot lift more than a few kilograms. When he walks he favours his left leg.
The insurer obtained a significant amount of surveillance footage of the claimant in 2024. This footage contradicts the claimant quite emphatically. In particular the claimant was seen wallking and moving without a walking stick notwithstanding the claimant’s contention to his medical practitioners that he requires a walking stick. The surveillance showed the claimant bending down to a low shelf at Repco without a walking stick and seemingly without restriction. The claimant’s statement of 10 December 2024 addresses this surveillance footage. The film does show that the claimant has a capacity which is greater than that which his statements indicated he possesses. I accept the insurer’s contention that the inconsistency demonstrates that the claimant’s condition is not so debilitating as to have greatly reduced his working capacity, nor prevent him from undertaking most day to day domestic activities.
The cross-examination of the claimant supported the insurer’s submission that the claimant is not so incapacitated as he has stated. Evidence was given of various long drives the claimant has undertaken with work both to Uralla and Wagga and the like. The claimant presented as being somewhat evasive and non-responsive to the questions put to him by the insurer. He stated that he had sold the family boat “as it was too hard for just my wife and kids to handle by themselves”. But it was noted that he did in fact buy the boat in February 2024 and it has now been sold.
It was noted in the report of Dawn Piebenga dated 10 September 2024 that the claimant has problems bending and uses a walking stick. The video footage shows the claimant bending and walking without using a stick in contrast to his reported disabilities.
In general I found the claimant overstated the degree of disability he suffered as a consequence of the motor vehicle accident.
Medical material
Following the accident the claimant was taken by ambulance to Gosford Hospital. He was complaining of significant neck pain following the accident. The claimant outlines injuries to his cervical spine, lumbar spine, injuries to both shoulders and the right bicep injury. In general the medical material supports the claimant’s outline of injuries. The report of
Dr Fitzsimons dated 25 July 2022 confirms a lumbar spinal injury and noting that the claimant underwent an L5/S1 anterior fusion and an L4/5 disc replacement. She goes on to note, in her report dated 28 October 2024, that:“His ability to engage in his pre-accident employment of signwriting ladder climbing is clearly curtailed.”
She opines that:
“He appears to be able to work in an administrative capacity only in his family business.”
The report of Dr Shatwell dated 22 June 2022 provides a diagnosis of sprain or strain to the left shoulder, strain or sprain to the cervical spine and a rupture of the anulus of the L5/S1 disc and sprain or strain of the lumbar spine. He goes on to note that:
“The claimant is not fit for his full time duties, climbing ladders and handing heavy signs.”
The report of Dr Porteous is somewhat more pessimistic and he states:
“He has also had consequential falls because of his lumbar pain and associated leg symptoms.”
He notes the claimant has ongoing chronic cervical pain and lumbar pain, left elbow pain following a fall, right knee pain following a fall, ongoing disturbed sleep, generally minimal improvement since the February 2021 anterior L4/5 disc replacement and L5/S1 discectomy and fusion. The report of Dr Porteous notes the claimant:
“The claimant is restricted from lifting, pushing, pulling, carrying, frequent and constant bending and constant sustianed sitting, standing and walking.”
Whilst there was some marked differences between what the surveillance footage shown and the claimant stated impairments, the medical material clearly identifies a cervical and lumbar spinal injuries. The lumbar spinal injury, following his surgery of February 2021, has left the claimant somewhat unstable, prone to falls and signficantly incapacitated in respect to his day to day activities. I accept the general nature of the medical material and note the effects of the accident related injuries and disabilities on the claimant. He states that he suffers:
“sharp crippling pain in the lower back that stops me from walking, sleeping, driving and sitting.”
Whilst I do not accept the totality of the disabilities alleged by the claimaned and detailed in some of the medical material I do accept that the claimant has significant ongoing disabilities consequent on the motor vehicle accident.
I accept these matters have an adverse effect on the claimant’s mental well being. I accept they have had an adverse effect on his capacity to undertake day to day activities and continue to do so.
Non-economic loss
The insurer submitted the claimant ought to be allowed non-economic loss of $200,000. The claimant submitted non-economic loss be allowed in the sum of $375,000.
Taking into account the significant injuries sustained by the claimant and their adverse effect on his capacity to engage in pre-accident social, sporting, domestic and recreational activities and I assess non-economic loss in the sum of $300,000.
Past economic loss
At the time of the accident the claimant has stated that he was working for the family business, Monrona Pty Ltd trading as Gosford Signs “on a permanent basis as a sign installer for 3 days per week”. The claimant’s most recent statement dated
10 December 2024 states: “I currently still work four hours per day (20 hours per week) on restricted duties.” He goes on to say: “I find my role as a General Manager is becoming too difficult. It requires me to drive around a lot and inspect work in the workshop.” At the assessment conference the claimant submitted that past economic loss be allowed in the sum of $404,556. The insurer submitted that past economic loss ought to be allowed in the sum of $42,349.41. The claimant stated that he currently receives $1,300 net per week. It was noted that workers compensation payments were only made for three days and currently the company “tops up his pay”. The insurer noted that at the time of his accident he was in receipt of earnings of about $796 net per week. Following the accident his tax returns indicate earnings of about $678 per week in the financial year ending 30 June 2016. Thereafter, he has been in receipt of earnings increasing from about $1,000 per week to his current stated earnings of $1,300 per week net.The claimant submitted that past economic loss ought to be calculated by adding the income of Dane Best, who was employed after the claimant sustained his injury, to that of the claimant to compensate the claimant for work which, but for the injuries sustained in the accident, he would have performed. The claimant’s submissions dated 13 February 2025 state that Mr Best’s net income 2017 to 2025 - $404,556 – “is a reasonable measure of the claimant’s loss of earnng capacity over the last nine and a half years”. The claimant had submitted the lion’s share of Dane Best’s salary is attributed to the claimant’s loss and does not take into account periods of total incapacity in the past.
As the insurer points out there are a number of factual difficulties with this quote. Firstly, Brian Waters (the claimant’s father, Manager of Gosford Signs) states that “I retired at the end of June 2016.” Thereafter the claimant took over. The claimant’s submissions would seem to indicate that the claimant can perform his current role and work reduced hours but would also have been able to perform the work tasks which Dane Best was hired to perform. Secondly, as the claimant stated he was working part-time at the business prior to his accident and noted that his father, Brian Waters, “owned the business but was looking to retire so I was also starting to undertake some of the business management work.”
I am not satisfied that the material bears out that, following the retirement of Brian Waters, that there would not have been the need to employ a further person to perform the tasks which the claimant was performing, albeit on a part-time basis, as the claimant was to assume management of the business. What is more logical is that Mr Best would have been employed by Gosford Signs in any event noting the claimant’s promotion.This suggests that, but for his injuries, the claimant would have managed the business and performed the tasks of Mr Best. The claimant’s employment, noting it was intended that he would assume management of the family business, was not dramatically altered as a consequence of his post-accident disabilities.
Whilst the insurer’s calculation for past-economic loss is reflective of a loss of net weekly pay of some $296 for the periods in which he was recovering from the multiple surgical procedures he has undergone since the accident. It does bear out some relationship with the actual losses sustained by the claimant. That said, I accept that the claimant is working in a reduced capacity and, albeit that he is being paid his “full wage”. That is, the company is topping up his pay so he does not suffer financial stress pending the resolution of this matter.
Both the claimant and his father have indicated that his pay being topped up is being viewed as a “loan” and there is an expectation that at the completion of this matter he will reimburse the additional payments. Indeed the submissions state that the claimant receiving the money “is conditional on his obligation to repay those monies from his third party claim”. I am not satisfied that the claimant must necessarily be allowed a significantly higher allowance for past economic loss because his employer has seemingly paid him additional money with an expectation of return. I note the following:
· There are no specific calculations as to what amount is to be repaid. The calculations in respect to the past economic loss for this claim are on a net basis. The additional payments being made to the claimant would seem to be made on a gross payment. There is no legal obligation on the claimant to repay these monies. There is nothing in the material that deals with increased pay now the claimant is assuming a more significant management role. The material does not bear out what the reduction in claimant’s hours are and accordingly no precise basis to work out what repayment, if it were to be made, would be appropriate.
· The claimant’s father and business owner, states that there was “an arrangement that any wages paid by us over the wages paid by the insurance company would be treated as a loan and reimbursed by Mathew back to the company when his matter had been finalised”. There are no documents to support this contention. There was no precise method of calculation. There are no details as to workers compensation insurance payments have been nor has any figure ben identified as being the recovery which would be sought by the workers compensation insurer pursuant to s 151 of the Workers Compensation Act 1987. Indeed at the assessment conference the claimant confirmed that workers compensation had only been paid for three days so presumably any payment to the workers compensation insurer would be very very small in any event.
· It is for the claimant to establish economic loss. In my view there is significant uncertainty in respect to the claimant’s current duties and earnings. The material does not disclose what earnings the claimant would be receiving for managing the business. In my view it is not appropriate to compel an insurer to repay to a company, or presumably the owners of the company, largesse shown to a family member.
Further complicating any calculation of economic loss is the existence of the Chrichton Waters Family Trust, as the insurer has submitted, there is no material addressing the structure of the trust nor the beneficiaries, there is no documentation which exists in respect to any loan. There is no material in respect to payment of monies to any trust beneficiaries.
In the circumstances, I accept the insurer’s figure but allow further buffer, loosely reflective of losses in the order of $100 per week since the date of the accident to compensate the claimant for the ongoing restrictions in his employment capacity. This figure, when employer superannuation contributions is added, give rise to a figure of in the order of some $55,000. I note the insurer’s calculations as to the time off which has also been added to the losses suffered by the claimant consequent on his inability to work in unrestricted duties and a greater number of hours per week since the accident. This gives rise in the order of $100,000 inclusive of past loss of superannuation.
Future economic loss
The claimant submitted the future economic loss ought be calculated in an amount of $1,000 per week for 25 years with a reduction of 15% for vicissitudes, that is to age 72.
This calculation seemingly based on the salary paid to Dane Best "to assist the business to make up for the loss of personal services of the claimant together with the claimant’s earnings with a deduction for residual earning capacity.”
The insured submitted that a buffer of $100,000 would be allowed noting the claimant’s role is office based and involves arranging quotes over the phone, liaising with customers, bookkeeping duties and responding to emails.
As I have outlined above, I do not consider that the wage paid to Dane Best is paid solely on the basis that appears a replacement for the claimant for work he would have performed but for his injuries.
The claimant is in a managerial role. It was always intended that he would move to a managerial role and accordingly it is likely that the company would have required someone to perform the tasks which the claimant previously performed. This is particularly so noting that the claimant’s father was intending to retire about the time of the accident and the claimant would have assumed the tasks he had performed. Further the claimant was working only three days per week at the time of the accident and consequently it is not appropriate to make an allowance for his replacement to be a paid full-time employee in any event.
The claimant currently receives $1,300 net per week which are his highest earnings and significantly higher than his pre-accident earnings. The insurer submitted that the claimant’s most likely future circumstances, but for the accident, are precisely that he would be currently performing as the business manager as the claimant's father stated:
"We had been planning for Matthew to take over my role as general manager the following July (2016) when I plan to retire from the everyday running of the business due to my ongoing health issues. After Matthew's accident he took over my role immediately. I retired at the end of June 2016.”
The claimant continues to work although there is some uncertainty about the ongoing viability of the business. As the claimant stated "the business has not been going well and recorded a loss last financial year of $50,000. My father proposes to sell the business as it cannot be kept running at a loss".
This does put the claimant’s ongoing employment at some risk. As I have outlined above the claimant does have some ongoing disabilities particularly in respect to physical activities associated with operating a signage business.
Accordingly, the claimant has suffered a reduction of the value of his services and labour on the open labour market which, in turn, would have an adverse impact on his ability to earn and consequently give rise to a legitimate claim for future economic loss. That is his most likely future circumstances are now diminished to that which existed prior to the accident.
I concur with the insurer’s submission that it is appropriate to award a buffer for future economic loss. There is uncertainty as to the claimant’s ongoing employment noting the concerns expressed with the viability of the claimant’s current employer. There is a reduced capacity for the claimant to perform work which, in turn, may see him taking intermittent periods off work or leaving the workforce earlier than would otherwise have been the case.
In my view, the overall reduction in the value of the claimant’s employment services, and consequent loss suffered by the claimant is loosely reflective of about 40% reduction of the claimant’s current net salary whilst he is currently in full-time employment. This is more likely to be a more significant reduction in the future than his current high earnings. This is also reflective of a reduction in the claimant’s residual earning capacity.
I accept the claimant is working for a family company and accordingly has some current flexibility in respect to his working arrangements. I accept that but for the accident he is more likely to have been able to continue full-time employment and bring a greater work capacity to prospective employers than that which he currently can as a consequence of the injuries he sustained in the motor vehicle accident. I consider it appropriate to calculate future economic loss to about age 72 with a loss reflective of a 40% reduction in his earning capacity from which there will be a reduction fortitude and added to which would be an allowance for loss of employer superannuation contributions.
In all the circumstances I assess the claimant’s future economic loss, including loss of superannuation benefits, in the sum of $350,000.
Past domestic care
The claimant submitted that past domestic assistance would be allowed in the amount of $80,811 being an amount for lawnmowing services, car servicing and domestic assistance.
The insurer submitted that there would be no allowance made for past domestic assistance. In this regard I know the claimant's wife moved to Australia after the motor vehicle accident. Accordingly, immediately following the accident no assistance was provided to the claimant by the claimant’s wife or her children.
The claimant's wife gave evidence at the assessment conference. When I asked about the statement she had prepared, she replied that the question is one which ought to be directed to her husband and children. When asked about housework, she replied that whilst the housework was her responsibility, she had two children who helped her. Whilst she observed disabilities displayed by the claimant, she was unable to identify what tasks he performed around the house prior of the accident as she was not in Australia at that time.
Miss Walsh Waters also suffers from Graves' disease. When I asked at the assessment conference what the effect of this disease has been on her she was evasive in her replies, but, she stated:
“I get very fatigued and very tired. I don't think I can keep doing all the work around the home for Matthew in the future.”
I note there were no statements by any other care providers. There was no distinction drawn between tasks which would have been performed for the claimant as he can as a consequence of his disabilities and those tasks which would have been performed by Miss Waters or her children in any event. I am not satisfied that the claimant has established that domestic assistance has been provided, as a consequence of the injury sustained in the accident, by his wife. Accordingly, I set past domestic assistance at Nil.
Future domestic assistance
The claimant submitted that an allowance would be made for future commercial assistance for three hours per week for the remainder of the claimant’s life expectancy. The insurer, relying on the report of Miss Piebenga dated 10 September 2024, submitted that allowance would be made for a little under one hour per week giving rise to a figure of $37,340.
As I have outlined above the extent of the claimant’s capacity is somewhat uncertain and difficult to gauge. The reports of Professor Shatwell dated 22 June 2022 and 5 August 2024 outline significant problems with day-to-day activities which is somewhat contradicted by the surveillance footage taken of the claimant.
The claimant states:
"I depend on my wife and children to undertake domestic tasks that I use to perform, outside work that I use to perform and others for any property maintenance that is needed.”
While this is suggestive of a claim for future domestic assistance based on the voluntary work provided by members ordinarily of the claimant’s household and friends I accept the insurer’s submission, noting that this has been addressed by the insurer, that such domestic assistance ought to be calculated on the provision of commercial assistance.
The claimant previously resided in a two-bedroom unit but now in a four-bedroom home with a garden. This means there is a requirement not only for internal cleaning tasks and the like but also for gardening tasks including mowing, weeding and maintenance of the gardens and its environment.
There are significant uncertainties when we can calculate the provision of future commercial care. There are times when more assistance is required than other times. Mowing needs to be done in summer more than in winter. Spring is a traditional time for significant gardening tasks to be undertaken. There are fewer tasks required to be performed in winter. I note the parties’ agreement of an hourly rate at $45 per hour as the appropriate figure to base calculations on.
Whilst the claimant submits that such assistance would be allowed for the remainder of his life expectancy there are, quite logically, circumstances as one enters old age in which they may have the effect of reducing a person’s capacity to engage in heavier domestic tasks in any event. That is for reasons of disabilities unrelated to any suffered in this motor vehicle accident.
In my view the most appropriate manner to assess the claim for future commercial assistance is to allow a buffer loosely based on an allowance of an average of two hours commercial assistance per week at the agreed hourly rate of $45 per hour. An allowance ought to be made, albeit a very slight one, to take into consideration likelihood of either the claimant's domestic circumstances changing, some age related or non-accident-related difficulties interfering with his capacity to undertake heavier domestic tasks in any event or the occasions when, through vacation or travel, such tasks may not be required in any event.
Noting these matters, I assess future commercial care in the sum of $80,000.
Past treatment expenses
I note the parties have agreed past treatment expenses total $249,284 which includes s 89 payments of $179.70.
Future treatment expenses
The claimant submitted that future treatment expenses ought to be allowed in the sum of $69,148 together with an allowance for equipment of $12,734. The insurer submitted that an allowance of $20,000 would be made for future out-of-pocket expenses.
There seems common ground that the claimant will require ongoing management including reviews from his GPs and specialist, analgesic medication as well as intermittent physiotherapy and other forms of allied health treatment. Further, the claimant has been provided with some equipment to assist him in his mobility and activities of daily living addressed in the medical material which is somewhat contradictory. They are somewhat complicated by the claimant insisting that he requires a use of a walking stick which is contradicted by the surveillance film candidate in this matter.
That said, requirement for treatment is likely to increase rather than diminish as he ages I consider it appropriate to calculate the buffer for future treatment expenses loosely based on an allowance of an average of $50 per week for the remainder of his life expectancy. To this ought to be added an allowance for medical equipment which, while she is currently being provided with, will need replacing in the future.
Such calculations do not give themselves to precision. It is unknown how long equipment he has will last and accordingly what deferral reduction ought to be made for it. Additionally, whilst it can reasonably be said that he has had most of the invasive treatment which he would require, noting that he underwent spinal surgery some four and a half years ago, it may well be that ongoing treatment will be, as the insurer suggests, conservative by nature Coms Stants that assess the treatment needs in the sum of $50,000.
Assessment of damages summary
Under sub-section 94(1)(b) of the Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
· non-economic loss $300,000
· past economic loss (incl. superannuation) $100,000
· future loss of earnings (incl. superannuation) $350,000
· past treatment $249,284
· future treatment $50,000
· past domestic care Nil
· future domestic assistance $80,000
total damages assessed $1,129.284
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
· s 83 payments $174.70
Costs and disbursements
I assess the claimant’s legal costs and disbursements in accordance with ss 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet in the sum of $52,215.38.
CONCLUSION
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 $1,129.284.
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 $52,215.38 inclusive of GST.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
• Motor Accidents Compensation Act 1999, and
• Motor Accidents Compensation Regulation 2015.
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