Antoniazzo v AAI Limited t/as AAMI

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Antoniazzo v AAI Limited t/as AAMI [2022] NSWPIC 458
Claimant:	Gino Antoniazzo
insurer:	AAI Limited t/as AAMI
Member:	Stephen Boyd-Boland
DATE OF DECISION:	11 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - Claim for economic loss; consideration of case law on balance of probabilities; Sdrolias v Allianz Australia Insurance Ltd considered; no precise evidence of relevant earning rates; consideration of case law on economic loss: Mead v Kerney, Nominal Defendant v Livaja, Medlin v State Government Insurance Commission, IAG Ltd t/as NRMA Insurance v Damian Mares, Dal v Chol and Allianz Australia Insurance Ltd v Kerr considered; section 126 of the Motor Accidents Compensation Act 1999 assumptions; section 4.7 Motor Accidents Injuries Act 2017.
determinations made:	1. Under sub-sections 7.36(3) and 7.36(4) of the Motor Accident Injuries Act2017 (the MAI Act),I specify the amount of damages for this claim as $175,000. 2. The amount of the Claimant’s costs, is yet to be determined.

STATEMENT OF REASONS

introduction

The Assessment Conference took place on 30 May 2022.
The Claimant gave evidence and was questioned by Counsel for the Insurer.
Early in the Assessment Conference I raised with both parties two issues in relation to economic loss, including a degree of uncertainty about the claimants’ earnings when he ceased work and uncertainty in relation to the future.
At the Assessment Conference, I made directions as follows:
a.On or before 10 June 2022 the Claimant to provide submissions in relation to the evidence of the claimant, the calculation of pre-accident earnings and the basis of the calculation of both past and future economic loss;
b.On or before 21 June 2022 the Insurer to provide submissions in relation to the evidence of the claimant, the calculation of pre-accident earnings and the basis of the calculation of both past and future economic loss.
Subsequently I was provided with this material, most recently from the Insurer on 21 June 2022.
I am asked to assess the Claimant's entitlement to damages arising out of injury sustained in a motor vehicle accident on 17 July 2018.
The Insurer has admitted liability.
The Claimant concedes he is not entitled to non-economic loss.
I am asked to assess damages in respect of the following:
a.Past economic loss;
b.Future economic loss;

Documents Considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.
The Claimant provided a “Tender bundle” consisting or 1321 pages.
The Insurer provided a “Tender bundle” consisting or 104 pages.

Submissions

The Claimant provided its final submissions dated 8 June 2022. There were to be read incorporating earlier submissions.
The Insurer provided its final submissions dated 21 June 2022 April 2021, it also sought to rely on the earlier submissions dated 23 March 2021 and 20 May 2022.

Reasons

The Claimant was born on 21 February 1963 and was 55 years of age at the time of the accident on 17 July 2018 and 59 at the time of the assessment conference.
At the time of the accident, he was not employed.
He was last employed by Costal Distributors in May 2018.
There was no dispute that the Claimant had worked for Costal Distributors and ceased work in or about May 2018, that the Claimants son, Khy, sustained significant injuries in a motor accident on 5 May 2018 and that the Claimant had ceased work following the motor accident involving his son, in order to assist him.
Medical Evidence
Dr T Clark assessed the claimant on 23 June 2020 and provided a report dated 24 June 2020. Dr Clark diagnosed the claimant as suffering from a post-traumatic stress disorder and assessed a 17% WPI.
Dr Clark recorded that before the accident the claimant was “a vigorous and healthy man”. He had been prosperous working in semiskilled labouring jobs. He confirmed that he has always been a labourer. Dr Clark reach the conclusion that he was presently not employable and was unlikely to get back to any heavy work noting that he did not have any office-based skills.
In relation to the claimant’s capacity for employment, Dr Clark concluded that “He has lost his capacity to work due to his physical and psychiatric injuries. A rehabilitation physician could provide expert advice”.
Dr Drew Dixon, Orthopaedic Surgeon, assessed the claimant on 8 July 2020 at the request of his solicitors an provided a report dated 20 July 2020.
Dr Dixon noted that the claimant was not working at the time of the accident. He described him as acting as the carer for his son noting that he received a carer's benefit. Dr Dixon recorded a detailed past medical history including gout in June 2013, back pain and reported erectile dysfunction and a motorbike accident 30 years ago and vascular stenting to both legs.
In terms of his fitness for work Dr Dixon noted that he was not working at the time of the accident but has been acting as the carer for his son. Dr Dixon did note that the claimant had intended to return to work as a storeman or alternately manual labouring type tasks “as he does not have any office-based skills or qualifications”.
Dr Dixon assessed the claimant as suffering from a 20% whole person impairment as a result of the injuries to his neck, right shoulder, left shoulder, thoracic spine and lumbar spine.
Dr Ian Barrett, orthopaedic surgeon provided a report dated 9 September 2020 noting “There were inconsistencies present with evidence of pain behaviour”. Dr Barrett noted that the claimant had not worked since May 2017 (should be 2018) and that he was now his son’s carer. He commented that it was difficult to obtain an accurate history from the claimant.
Dr Chris Rikard-Bell, psychiatrist in his report dated 16 December 2020 He was hoping to return to work, however his employer reneged on his employment due to his motor vehicle claim. Mr Antoniazzo said he wants to work and he was very disappointed he could not return to his job. He believes he would be able to work in his pre- injury duties.
Dr Doran Samuell, Psychiatrist assessed the claimant on 23 September 2021 and provided a certificate dated 5 October 2021. Dr Samuell found that the claimant had an adjustment disorder with mixed disturbance of mood as a result of the subject accident and assessed the claimant as suffering from a 5% whole person impairment.
Dr Samuell noted the claimant was on a carers pension for his son, helps him with feeding, laundry and activities of daily living. He provides respite care for four of his grandchildren.
Assessor Thomas Rosenthal assessed the claimant on 8 December 2021 and provided a certificate dated 13 December 2021. Assessor Rosenthal found the claimant had sustained soft tissue injuries to the cervical spine, thoracic spine, lumbar spine, right and left shoulder caused by the motor accident.
Assessor Rosenthal noted the claimant had a number of medical conditions including heart problems and had had two valves replaced. He had vascular surgery into his legs. He gets shortness of breath easily because of his cardiac condition. He noted that he was the carer for his son who had a brain injury from a motor vehicle accident in 2017. He is still a carer for his son. He helps him shower and dress and some of his personal activities. He is currently not working. He gets the carers pension. He had to return to hospital in October 2018 because he was having a vascular issue with his legs. He had poor recollection of his actual treatment.
Assessor Rosenthal found a whole person impairment as a result of injuries to his left and right shoulder of 4%.
Assessor Thomas Rosenthal accepted that the claimant had suffered soft tissue injuries to his cervical, thoracic and lumbar spine as well as both shoulders. He also noted that the claimant had suffered rib fractures, but these had since resolved.
The claimant relied on the opinion of Dr Mastroianni, contained in a report dated 3 March 2022, who diagnosed soft tissue cervical and lumbar spine injuries, along with rotator cuff pathology in the shoulders and depression.
Dr Mastroianni notes the claimant stated his intention was to return to work once his son was discharged from hospital and he arranged carers for him. This intention was to start work in early 2019. He reported that because of the accident and injuries, he has not been able to find work. He states that when employers find out that he had a motor vehicle accident and sustained injuries they showed no interest in him. Presently he is on a carer's pension.
Dr Mastroianni also noted that the claimant had suffered a heart attack but provided no further information in relation to that. Under the section headed “examination” he noted that the claimant was “a difficult historian”.
In relation to the physical injuries, I accepted the opinion of Assessor Rosenthal and accepted that the claimant had sustained soft tissue injuries to the cervical spine, thoracic spine, lumbar spine, right and left shoulder caused by the motor accident.
In relation to the psychiatric injuries, I accepted the opinion of Dr Samuell and accepted that the claimant had an adjustment disorder with mixed disturbance of mood as a result of the subject accident.
Making finding in relation to the capacity of the claimant was very difficult.
Assessment of damages
The Claimants submissions included that Claimant was an impressive witness who made concessions where appropriate and gave his evidence in a forthright manner. It is submitted that the Member would have no difficulty in accepting the claimant as a witness of truth.
I do not accept that. The Claimant was not an impressive witness, and I will set out a number of issues in relation to the evidence of the Claimant that support that conclusion.
Pre-accident employment
The Claimants Statement of February 2022 includes “… I have always worked with my hands or with machinery. I have never worked in an office …” (paragraph 6 Statement of February 2022).
Dr Thomas Oldtree Clark, psychiatrist in his report dated 24 June 2020 took a history that the claimant “has always been a labourer”.
When questioned by Counsel for the Insurer the Claimant gave a history of the ownership of a number of Tattoo business over s significant period. In addition, it was confirmed that he had bought and sold a number of Tattoo businesses.
The evidence that the Claimant gave was to confirm this involvement but to seek to limit the extent of his skills in owning and operating those businesses.

Pre-accident earnings

The Claimants Solicitors provided particulars by letter dated 20 July 2020.
At point 2 the particulars provided that the gross earning of the claimant reduced from Tax year ending on 30 June 2016 ($61,273) to Tax year ending on 30 June 2017 ($52,839) to Tax year ending on 30 June 2018 ($51,096).
In its submissions the Claimant it is asserted:
There is seemingly a dispute between the insurers position on the claimant’s pre- accident earnings and the claimant’s position. The claimant’s revised position, as noted in the schedule of the claimant’s earnings based on tax returns is an average figure over a period of four years showing an earning capacity of $890 net per week. The insurer suggestion of a figure of $739 per week is not explained. It is the claimant’s submission that an average over a period of four years before the accident if anything underestimates the claimant’s earning capacity in the past ..” Paragraph 35.
Counsel for the Insurer questioned the Claimant about some medical issues in respect of the left leg that were noted to have been present for one year prior to October 2018. The Claimant maintained that it had not impacted his ability to undertake work.
At page 673 (of the PDF but numbered 672) of the Claimants bundle of documents there is a reference to an incident at work. The Claimant was not questioned about this.
The pre-accident earning revealed a decline in earnings over the three years prior to ceasing work. The reason for this reduction was not explained.
The insurer submits that the average earnings over the tax year immediately before the accident of $876 net per week should be adopted as representing the claimant’s earning capacity at the time of the subject accident. Whilst the claimant contends for increases in line with the CPI, there is no evidence that he had enjoyed such increases during his periods of employment.
The Claimant did not accept the figure proposed by the Insurer and in circumstances of the steady decline in earnings combined with evidence of other medical issues at the time it is hard to make a confident assessment of the claimants earning capacity at the time of the accident.
Did the Claimant seek work after the accident?
The Insurer provided some documents from Centrelink.
The Centrelink records show, under the Heading “Taxation Details”
01/07/2018 – 20/06/2019 Newstart, Pension
Under the Heading Type of Centrelink Payments
Newstart Allowance
Current 17/05/2018
Cancelled 15/11/2018
Carer Payment
Current 15/11/2018
The Claimants Solicitors provided particulars by letter dated 20 July 2020 provides at point 3 that the Claimant was not employed at the time of the accident and has not sought post-accident employment. These also provide that it was the Claimants intention once his son’s medical condition stabilised and he was able to return from January 2019 onwards to resume employment as a storeman.
The Claimants Statement of February 2022 incudes:
“Had I not been injured … I would have been fit and well and I would have returned to work with Costal Distributors or in similar employment during January 2019 …” (paragraph 11 Statement of February 2022);
“Were it not for the subject accident … I would have returned to work in during January 2019 …” (paragraph 27 Statement of February 2022).
The Claimants Statement of February 2022 does not assert that he sought employment.
The Claimants Statement of May 2022 includes:
“But for the injuries sustained in the subject accident … I would have in January to February 2019 looked for and, in my view, obtained, employment “(paragraph 10 Statement of 27 May 2022)
“… had I not been involved in the subject accident … I would since at least January or February 2019 been involved in full time employment … “(paragraph 11 Statement of 27 May 2022)
The Claimants Statement of May 2022 does not assert that he sought employment.
The evidence that the Claimant gave was that:
“ … so they referred me to work, to a job employment place and they sent me on a few interviews …”
Then when questioned by Counsel for the Insurer:
“The job agency there recommended to me, all they done for me was help me with resumes and they printed a few out for me and then without Centrelink’s help or the job agency I went around giving out references …”.
One version includes a number of “interviews” and the other simply “giving out references”.
The evidence of the Claimant was that this seeking work occurred in or about January 2019.
The Claimant evidence generally
In his report of 3 March 2022 Dr Mastroianni notes “He is a difficult historian”.
Counsel for the Insurer questioned the Claimant about some medical issues in respect of the left leg that were noted to have been present for one year prior to October 2018. The claimant’s answers were often non-responsive or unclear.
Counsel for the Insurer questioned the Claimant about some feelings of anger, not coping and feeling overwhelmed. The claimant was reluctant to accept the content of the medical records.
Counsel for the Insurer questioned the Claimant about the treatment and surgery in relation to the leg issues.
Counsel for the Insurer questioned the Claimant:
“… you’d accept that at the time of this motor vehicle you had a number of health complaints?”
The Claimant responded “No”.
The evidence was then interrupted; however, the Claimant was reluctant to accept the extent of the medical issues set out in some detail in the Claimants own bundle of documents.
Evaluation of the evidence
In Sdrolias v Allianz Australia Insurance Ltd[2022] NSWCA 20, the Court of Appeal gave some guidance as to how a court determines issues involving the balance of probabilities. McCallum JA [16] referred to what McDougall J (with whom McColl and Bell JJA agreed) said as to findings on the balance of probabilities:
“... for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact ...
... two schools of thought had been propounded as to the proof of facts, referred to as “the objective probability school” and the “belief school”:
“The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such-and-such has taken place or will do so’ ...”
103. McCallum J continued [17]:
“McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches ...”
104. Her Honour referred at [17] to Hodgson J:
“... the two approaches could be combined ... ‘if ... the tribunal ... believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.”
The submission in relation to Economic Loss
The Claimants submission refereed to the decision of the NSW Court of Appeal in Mead v Kerney (2012) NSWCA 215, where his Honour Justice MacFarlan, with whom Justices Sackville and McColl agreed, referred to and approved an extract from Luntz, Assessment of Damages for Personal Injury & Death (4th Edition) wherein it was said
“It is necessary for a Plaintiff to prove the loss for which compensation is claimed. However, conversely, it is not incumbent upon the injured Plaintiff to prove what employment he or she is not incapacitated from performing. It is for a Defendant who contends the Plaintiff has a residual earning capacity to adduce evidence of what the Plaintiff is capable of doing and what jobs are open to such a person.”
Their Honours also referred to and approved the “proper approach” identified in Nominal Defendant v Livaja [2011] NSWCA 121 as follows;
“Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled, or semi-skilled occupation, which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation.”
The Insurer maintained that the principles articulated in Mead v Kearney (2012) NSWCA 215 are well known and not in contention. However, the insurer contends that the claimant has not proven the loss for which compensation is claimed. In those circumstances, the requirement of the insurer to establish what jobs the claimant can do does not arise.
The insurer contended that Mead involved a plaintiff who was found to have a capacity to work of three hours a day and had demonstrated that in the four years leading up to the hearing that he had attempted to find employment but had been unsuccessful.
The Insurer noted that the court in Nominal Defendant v Livaja [2011] NSWCA 121 at [65] observed as follows:
… When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation…

In Livaja the evidence established that whilst the plaintiff could theoretically work 3 hours per day, five days per week in a supportive environment, following a vocational assessment he was not suitable for vocational retraining.
I did not accept the claimant’s submission on this issue, in my view this was not a situation where there was such clarity about the incapacity.
Legal issues relevant to Economic Loss
In Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 where the Court by a majority of Deane, Dawson, Toohey, Gaudron and McHugh JJ stated the principle in the following terms:
‘2. A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct, but related requirements are satisfied. The first ... is ... that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second ... is (that) ‘the diminution of ... earning capacity is or may be productive of financial loss’ (referring to Graham v. Baker [1961] HCA 48)’
In IAG Ltd t/as NRMA Insurance v Damian Mares[2016] NSWSC 1792, Hall J said this with respect to the correct assessment of future economic loss:
(a) s 126 does not prevent the award of a cushion or buffer for future economic loss [para 68];
(b) the following formulation, which was approved by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61, applies [para 69]:
(1) Assess the “most likely” of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);
(2) Assess the claimant’s economic prospects as a consequence of the accident;
(3) Compensate the claimant for the difference between (1) and (2), including, where appropriate, through the use of a buffer;
(4) Adjust (3) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (1) even had the accident not occurred;
(5) Include a statement of the assumptions made as the claimant’s most likely future circumstances and the appropriate percentage adjustment as to the above formulation see also Leslie & Britts, Motor Vehicle Law New South Wales, at [MAC.126.40].
173. In Dal v Chol[2018] NSWCA 219, White JA said [at 24]:
“... Indeed, an award for future economic loss based on an assessment of the difference between the respondent’s likely earnings as a qualified motor mechanic and his actual earnings at the time of trial ($217 per week) applied to his likely working life, discounted for vicissitudes and applying the five per cent discount rate to calculate the net present value of the loss over that period, would have been unexceptionable.”
174. In Allianz Australia Insurance Ltd v Kerr [2012] 83 NSWCA 13 Basten JA stated at [24]:
“The applicant's submissions focused on the language of s 126, but identification of the specific non-conformity relied upon would have illustrated the insufficiency of that approach. Section 126 does not purport to codify legal principles relevant to assessment of loss of earning capacity. It does not identify factors to be taken into account in making an assessment. Nor does it appear to depart from or vary the general law principle that the compensable loss is not a loss of income but the loss of capacity to earn income which "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; 106 CLR 340 at 347; State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71] (Heydon JA); State of New South Wales (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [86] (Beazley JA; Allsop P and Macfarlan JA agreeing). Income earned prior to the accident may well be the best evidential basis to assess the earning capacity of the claimant, but for the injury, subject to adjustment for the passage of time since that income was last earned. Income earned between the accident and the trial may be (but often is not) a good indicator of current capacity. The latter may be capable of extrapolation into the future, but it will usually be necessary to consider whether, and to what extent, both pre-accident capacity and post-accident capacity might have been and might be expected to vary in the future.”
175. His Honour continued at [26]:
“In Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638, three members of the Court (Deane, Gaudron and McHugh JJ) referred to the exercise in respect of hypothetical events, stating that "the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability": at 643. It has been submitted (though not determined) that s 126 replicates that approach: State of New South Wales (NSW Police) at [88]. If so, it appears to disregard the remarks of Brennan and Dawson JJ at 640:
"Although we agree with the general thrust of the reasoning on this point in the judgment of Deane, Gaudron and McHugh JJ, we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation."
176. His Honour then summarised the comprehensive review of the principles to be found in this area quoting from Heydon JA in Moss.
177. His Honour also reproduced the assumptions about future earning capacity at [31] and other events as noted in Nominal Defendant v Livaja [2011] NSWCA 121 at [41]:
…..
S 126 of MACA
178. S 126 of MACA provides:
1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court 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) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
These cases all deal with the prior legislation, for an award of damages to be made s 4.7 of the MAI Act must be satisfied. The legislation is in similar term to the prior legislation. I accept, that s 4.7 does not prevent a buffer being awarded for future economic loss in appropriate cases: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. Where a buffer is awarded, the adjustment referred to in s 4.7(2) is nil.
A combination of sub-ss 4.7(1) and (3) require the identification and statement of the assumptions about future earning capacity or other events on which the award is based. Matters to be taken into account commonly include:
(a) identification of the skills, training and experience of the injured person, as at the date of the accident;
(b) the work he was undertaking immediately prior to the accident;
(c) the likelihood that he would have continued in such employment, but for the accident;
(d) the possibility that she might have obtained promotion or other benefits, but for the accident;
(e) the age to which she was likely to have worked in that employment, and
(f) the possibility that the employment would not have been continuous.
In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (8 August 2012) Basten J noted at 35 and 36:
35 The conventional approach to such an exercise is to assess the earning capacity of the claimant in monetary terms prior to the accident (usually on the basis of net weekly or annual earnings) and, where there is evidence of unemployment or employment at a reduced income thereafter, to assess the quantum of the difference up to the date of hearing (past economic loss) and to project the calculation into the future (future economic loss). The latter exercise will, again conventionally, be discounted by 15% on account of vicissitudes.
36 Such calculations produce precise figures, often resulting in awards expressed in dollars and cents. However, such precision is fallacious. Varying degrees of uncertainty will attend the hypothetical aspects of the calculation, rendering any degree of precision misleading.
Then further at 52
52 The matter was also the subject of discussion by this Court (Hoeben J) in Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098. His Honour, at [213], referred to the judgment of the Court of Appeal in State of New South Wales v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 at [65] and [87]. In Moss, supra, Heydon JA, at [87], with whom Mason P and Handley JA agreed, said:
"[87] In short, 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 the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. Statements to the contrary such as those made in Allen v Loadsman [1975] 2 NSWLR 787 at 792 are not correct: Baird v Roberts [1977] 2 NSWLR 389 at 397-8 per Mahoney JA; J K Keally v Jones [1979] 1 NSWLR 723 at 732-735 per Moffitt P; Yammine v Kalwy [1979] 2 NSWLR 151 at 154-5 and 156-7 per Reynolds JA and Mahoney JA; Thiess Properties Pty Ltd v Page [1980] FCA 101; (1980) 31 ALR 430; see also Radakovic v R G Cram & Sons Pty Ltd [1975] 2 NSWLR 751 at 761 where Samuels JA criticised the 'meagre facts' provided but did not say it was not open to the jury to find a substantial sum for diminished earning capacity by the 'application of their own knowledge and experience'. The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility. The trial judge in substance explained these aspects of the jury's task satisfactorily."

Economic Loss

I do not accept that the claimant’s pre-accident earnings were $997 as proposed by the Claimant.
The evidence was to the effect that over the last few years prior to him ceasing work that his earnings had declined.
The claimant had a number of medical conditions many of which are referred to in the treating records provided but also are mentioned to an extent in the report from Dr Dixon.
No clear explanation was provided as to why the claimant's earnings in that period had consistently reduced.
The insurers submissions suggested a figure of $876 net per week described as being the average earnings over the tax year immediately before the accident. This was not accepted by the Claimant.
As I have outlined above, there were a number of issues in relation to the evidence of the Claimant.
Insofar as the skills, training and experience of the plaintiff as at the date of accident are concerned, the information available suggests that for a significant period of time the claimant was the owner of various tattoo businesses. Over this period the claimant had bought and sold various tattoo businesses.
The claimant's evidence in relation to this was that the businesses were run with subcontractors. His evidence was to the effect that he had no significant knowledge or ability in relation to the operation of a business.
I did not accept the claimant's evidence in relation to that.
I accept that for a significant period of time the claimant was capable of running and operating the business of a tattoo parlours. It was clear that in addition to that the claimant had also undertaken a variety of semi-skilled of skilled, worked as a forklift driver and semi-skilled labouring and/or physical work.
It is noted that immediately prior to the accident the claimant was not working. Sometime before the accident he had been undertaking work as a Storeman. This involved forklift driving and some other manual labouring activities.
It was also difficult to make an assessment of the likelihood that the claimant would have continued in such employment but for the accident.
In respect of the possibility that he might have obtained promotion or other benefits but for the accident this was a possibility. Whilst it was a possibility, again the evidence of a reduction in earnings in the years prior to him ceasing work suggested that such a possibility may have been relatively small.
In terms of the age to which the plaintiff that the claimant was likely to have continued in that employment the claim advanced was for future economic loss to the age of 70. However again, the claimant had a number of medical issues, he had worked for that employer for a relatively short period of time and again in the years leading up to him ceasing work his earnings had reduced.
In terms of the possibility that the employment would not have been continuous it was noted that after the motor vehicle accident the plaintiff the claimant had required some treatment including surgery in relation to a leg compliant and had subsequently suffered a heart attack. There was a possibility that the employment would not have been continuous, and this possibility seemed to be quite realistic.
In my view the extent of the plaintiff's evidence in relation to what he intended to do was not sufficiently clear or certain as contemplated by the court in Sdrolias, I did not feel an actual persuasion of the existence of that fact, the intention to return to work. Nor in my view was there a probability in excess of 50% of this intention to return to work.
The nature of the evidence in relation to the claimants’ actual attempts to return to work were also unclear and inconsistent. There was a suggestion that he was returning to his prior employer and that this employer had reneged on the deal. That contention was not made by the claimant in his evidence. There was the suggestion that the claimant had attended a number of interviews for work, however, again that was not consistent. There was the suggestion that the claimant had provided references, possibly resumes, to a number of employers without success, again, that was uncertain.
As a consequence of this I did not accept that the claimant had sought work since the accident.
The various doctors all provided differing views as to the ongoing consequences of the injuries, the limitations and restrictions of the claimant and the nature and extent of his incapacity. Much of this was based upon the history obtained from the claimant and to an extent based on the history provided by the claimant and an acceptance of his presentation at examination.
Having accepted the injuries found I accept that the claimant's earning capacity has been reduced.
The circumstances fall squarely within the comments of the court of appeal in Moss, I accept that the claimant's earning capacity has been reduced, however, given the evidence before me, in my view it is exceedingly difficult to seek to assess the extent of that reduced capacity.
In my view, the uncertainties in relation to the Claimants evidence leaves me in a position where the most likely future circumstances were that for some period of time the claimant would have continue to assist his son. I accept that at some point in the future the claimant may have sought further work. I consider that it is more likely than not that at some point in the future the claimant would have sought further work. When this would have occurred was uncertain. The evidence was to the effect that the claimant had not displayed any particular urgency in looking for work. The nature of this work was more likely to have been skilled or semi-skilled manual work. Whether the work would have been full time or part time is also uncertain.

Past Economic Loss

In terms of Medlin, I accept that there is evidence to the effect that the plaintiff's earning capacity has been diminished. As to the second issue I am not satisfied that there is evidence that this diminished earning capacity has been productive of any financial loss.
I do not accept that the claimant had intended to return to work or that the claimant had sought employment.
In these circumstances I make no award for past economic loss.

Future economic loss

Again, the issues as to the uncertainty as to the most likely future circumstances that I have set out above remain.
The claimant has sought to use the figure of $1,000 per week to calculate such a loss. That figure includes amounts for inflation and is based upon pre-accident earnings that do not reflect the claimant's actual earnings at the date he ceased work.
I have considerable difficulty accepting the figure proposed by the claimant’s solicitors for the reasons previously explained.
Again, as the court noted in Moss despite this level of difficulty it is not open to me to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.
The claimant's assessment based upon total incapacity working on a future working life of 11 years to age 70 at the rate of $1,000 nett per week amounted to the sum of $377,495. A claim for superannuation was also advanced in the sum of $51,526. A combined total of approximately $425,000.
As a result of the various reasons, I have set out above I do not accept that calculation.
The Insurer suggested a figure of $876 such a calculation (on the basis outlined by the claimant) would amount to a total of approximately $375,000 including superannuation.
Having considered all of the circumstances and the difficulties in terms of these most likely future circumstances, I assess future economic loss in the sum of $175,000 inclusive of superannuation.
I accept the figure lacks precision, however, I am of the view that for the reasons outlined and in all of the circumstances it is the best I can do and amounts to a fair estimate of the loss.

Costs

The Claimant has made submissions on costs, they are in the submissions and at page 1320 of the Tender Bundle.
I will allow the Insurer time to make submission on costs, should they not be agreed.

[2022] NSWPIC 458

11 July 2022