Aranui v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 105
•14 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Aranui v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 105 |
| Claimant: | Mana Aranui |
| insurer: | Insurance Australia Limited trading as NRMA Insurance |
| Member: | Susan McTegg |
DATE OF DECISION: | 14 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages; the claimant was riding a motor bike when he alleged the insured vehicle suddenly and without warning changed lanes into the lane in which the claimant was travelling and stopped, resulting in the claimant colliding with the left hand corner of the insured vehicle; insurer alleged contributory negligence of 25% on the basis the insured vehicle had moved into lane 2 and was stationary when the claimant failed to stop and collided with her car; the claimant sustained a compound fracture/dislocation of the right foot; no dispute as to injury; medical experts agreed claimant unfit for pre-injury employment as a scaffolder or any work requiring prolonged walking or standing, climbing ladders, negotiating stairs or negotiating slopes or uneven surfaces; Held – claimant honest witness;the insured driver suddenly swerved into the middle lane without keeping a proper lookout for vehicle travelling in that lane, in this case the claimant’s bike; no departure from the standard of care of the reasonable person; no finding of contributory negligence; past economic loss assessed on basis all absences from work causally related to the accident; future loss of earnings assessed on basis of $125 per week for one year, with no discounts for vicissitudes, on basis claimant unlikely to maintain current employment as a scaffolder and thereafter at $750 net per week until age 67 years; total damages assessed in sum of $834,501; costs assessed in favour of the claimant. |
| determinations made: | Certificate Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of Claim for Damages made in accordance with s 7.36 of the Act 1. On the issue of liability for the claim, the NRMA’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 ss 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 $834,501. 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 MAI Act is $61,475.05 inclusive of GST. |
REASONS FOR DECISION
Issued under s 7.36(1) of the Motor Accident Injuries Act2017
INTRODUCTION
Mana Aranui (the claimant) sustained injury in a motor vehicle accident on 6 August 2019 (the accident). There is a dispute about the circumstances of the accident.
I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of the injury sustained by the claimant.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
Mr Aranui lodged a common law claim for damages dated 10 May 2021.
In a liability notice issued under s 6.20(1) of the MAI Act dated 6 August 2021 the insurer denied liability for the claim.
The claim was listed for assessment on 9 March 2023. Mr Aranui was represented by
Mr Nicolaous Ghabar of counsel instructed by Mr Simon Meigan of Taylor & Scott Lawyers. Ms Justine Potaka, the claimant’s partner was also present. The insurer was represented by Mr Marco Nesbeth of counsel instructed by Ms Bree Cohen of Hall & Wilcox Lawyers and Mr Liam Hart from the insurer.At the outset of the assessment conference, I was informed the insurer had issued an updated liability notice dated 8 March 2023. The insurer admitted liability but alleged contributory negligence assessed at 25%.
The parties agreed the claimant’s earnings at the date of accident was $1,757 net per week.
The parties agreed payments made to the claimant pursuant to s 3.40 of the MAI Act total $56,398.77.
The parties also agreed that there was no entitlement for the claimant to recover damages in respect of taxation payments referrable to the s 3.40 statutory payments.
The parties agreed past loss of superannuation should be assessed at 11% of the claimant’s past wage loss and further loss of superannuation should be assessed at 14.5% of the claimant’s future wage loss.
The issues in dispute are the following:
· whether there was any contributory negligence by the claimant, and
· the assessment of damages.
I am asked to assess damages in respect of the following:
· past economic loss, and
· future economic loss.
TRANSITION OF EXISTING DISPUTES TO THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) commenced operation on 1 March 2021. The former Dispute Resolution Service was abolished by cl 3 of division 2 of part 2 of Schedule 1 to the Personal Injury Commission Act2020 (the PIC Act). The PIC Act and Regulation establishing the Commission provide that a new decision-maker may determine pre-existing disputes in accordance with the previously applying legislation.
Clause 14B(4)(c) of Schedule 1 of the Personal Injury Commission Regulation 2020 provides that the provisions of any Act, statutory rule or other law that would have applied to determine the proceedings, had the PIC Act not been enacted, continue to apply.
THE RELIABILITY OF THE CLAIMANT’S EVIDENCE
Mr Aranui was questioned at the assessment conference about the circumstances of the accident. I formed the view Mr Aranui was an unsophisticated claimant who gave his evidence honestly to the best of his ability. Whilst he took time to answer it was apparent that he did not always understand the questions posed by Mr Nesbeth.
In concluding that Mr Aranui was a reliable witness I also note Dr Powell found there was no suggestion of overaction or exaggeration, concluding Mr Aranui had demonstrated an admirable ability to return to the workforce whilst Mr Henricks stated
“his actions seem entirely consistent with those of an individual who had made his best efforts to return to remunerative work as soon as possible and make the best of his circumstances.”
CONTRIBUTORY NEGLIGENCE
The accident occurred on Victoria Road, Denistone West. The road had three lanes in each direction including a bus lane on the kerbside lane (lane one) heading east. The accident occurred about 10m west of Moira Avenue in the middle lane (lane two).
The road was sealed bitumen in good condition, it was straight and flat and the relevant speed limit was 70km per hour.
The weather conditions were described as fine and the road dry.
The accident occurred at about 6.15am and whilst the sun was just coming up his headlights were on and the roadway was well lit by streetlights. Both Mr Aranui and Ms Gong described visibility as good.
The claimant’s evidence
Application for personal injury benefits
The Application for personal injury benefits was completed by the claimant on
29 August 2019. He described the accident as follows:“I was travelling east bound along Victoria Road, Denistone West, in the middle lane (one lane over from the bus lane). The other vehicle (Miss Xiaoyi Gong) was also travelling east bound but on the inside lane.
Miss Xiaoyi Gong pulled out of her lane and across into the lane I was in without warning or her indicators on. As soon as Miss Xiaoyi Gong was in my lane, she abruptly slammed on her brakes.
I tried to manoeuvre into the bus lane to avoid Miss Xiaoyi Gong's vehicle but unfortunately hit the back left corner of her vehicle which resulted in the accident.”
Statement of the claimant dated 22 October 2019
Mr Aranui provided a statement to an investigator appointed by the insurer on
22 October 2019. At that time, he was 30 years of age and said he had been driving and riding since he was 17 years of age.At the time of the accident, he was driving a 2003 black Harley Davidson 1130cc motorcycle which he had owned since December 2018.
On 6 August 2019 Mr Aranui was travelling from home to his work site in the Sydney CBD. He described the weather conditions as fine and the road dry.
Mr Aranui was riding his motorcycle wearing an open face motorcycle helmet, a riding jacket, gloves, riding pants and work boots.
He described the traffic density as moderate to heavy with “many vehicles ahead of me in lane three of three but lanes one and two were both fairly clear”.
Adopting the paragraph numbering of the claimant’s statement he described the circumstances of the accident as follows:
“35. I travelled in an eastern direction along Victoria Road in the centre of my lane and I was looking forward at all times. I was in lane 2 of 3 and my lane was clear up ahead. I was travelling around 55 - 60 kph as I was being cautious as I could see traffic bunching up further ahead in the right lane about 100 metres up ahead. I intended to follow Victoria Road towards the Sydney CBD.
36. I approached towards Moira Ave side street and saw traffic up ahead in the right lane was congested. There was no traffic as far as I could see in my lane up ahead.
37. I continued coasting along at 55 - 60 kph and when I was about 10 metres west of Moira Ave side street, the vehicle at fault pulled out in front of me from the right lane.
38. The Mazda had been fully stationary in the right lane 3 of 3 in traffic. There were about 3 cars also stationary in traffic behind the Mazda. It was apparent that the driver of the Mazda got impatient and wanted to save a few seconds so she pulled out of lane 3 of 3 into my lane 2 of 3.
39. The driver of the Mazda didn't indicate before pulling out. I was about 10 metres west of the Mazda when the Mazda pulled out in front of me. Obviously, the driver of the Mazda didn't see me. I don't think she even looked.
40. The Mazda pulled out completely into my lane and I had nowhere to go. It zoomed out into my lane very quickly and straightened up the car. It looked like the driver noticed me at the last second and she slammed on her brakes and came to a stop directly in front of me. It all happened within a split second.
41. I tried to swerve to the left towards the bus lane but I had no time to avoid the impact. I believe I would have missed her if she was an extra 10 metres further east or if she kept driving without stopping in my lane.
42. I swerved to the left but it was too late. I locked my wheels up and skidded about 5 metres or so. The front right side of my bike impacted onto the rear passenger side of the car. I believe my right pedal and foot collided with the rear passenger corner of the car. I felt the hard impact on my right foot and ankle and I knew something was wrong.
43. I let my bike go right as I impacted on the car. I fell over the handlebars of the bike.
44. I landed within a metre or so of the bike and car and I landed in the bus lane.
45. I believe my speed at the point of impact was about 40 kph after I shed off some speed. The Mazda was completely stationary.
46. I would rate the force of the impact on a scale of 1-10 as about 7 or 8 out of 10. There was a loud screech and a loud bang. I don't believe her car got pushed. I don't think airbags went off in the car.
47. I was really worried about getting off the road before getting run over.”
Mr Aranui also stated he saw two people get out of the car, the driver Xiaoyi Gong and a male passenger. Another bike rider stopped behind Mr Aranui and put his hazard lights on to block traffic and another man used his car as a barrier. An off-duty paramedic assisted Mr Aranui until an ambulance arrived. Mr Aranui stated he had sustained damage to his right foot and was in pain. He also recalled Ms Gong coming over to talk to him but noted she had limited English and said she didn’t really say anything. He stated he was in shock and focused on his leg and foot at the time. Within 10 to 15 minutes an ambulance arrived and Mr Aranui was transported to Ryde Hospital.
Mr Aranui described the damage to his bike on the front ride side, the plastic radiator casing had come off and the frame was bent and cracked. The bike was written off.
Mr Aranui stated police attended the hospital on the day of the accident and spoke to him but he was on strong painkillers and hardly remembers what was said. He did not give a signed statement to police and understood they would be in touch. Mr Aranui subsequently followed up the police but was advised by the officer in charge that she had not really looked at the incident and was not taking any action.
Statement of the claimant dated 9 August 2022
Mr Aranui provided a statement in support of his claim for damages. Adopting the numbering used in the statement he described the circumstances of the accident as follows:
“15. There were three lanes of traffic in each direction and I was riding in the middle lane. The lane to the left of me, closest to the kerb, was a bus lane.
16. I recall that there was traffic in the lane to the right of me. However, my lane was relatively clear of traffic.
17. All of a sudden, a vehicle in the lane to the right of me merged into my lane, approximately ten to fifteen metres in front of me. The vehicle was a red Mazda 3 sedan (the vehicle) with a registration number of CRN22R. The driver of the vehicle was Xianyi Gong.
18. The vehicle had been stationary, stopped in traffic and there were several cars stopped behind said vehicle. The driver of the vehicle did not indicate before veering suddenly in front of me in the middle lane.
19. As the vehicle veered into the middle lane, the driver slammed on the brakes and the vehicle came to a stop in front of me.
20. I attempted to swerve into the bus lane to the left of me in order to avoid crashing into the rear of the vehicle. However, I did not have enough time or space to avoid the impact. The front right side of my motorbike crashed into the passenger side of the rear of the vehicle and my right pedal and foot collided with the rear passenger corner of the car. I felt the hard impact on my right foot and ankle. I subsequently fell over the handlebars of my motorbike and landed in the bus lane.”
Oral evidence of Mr Aranui
Mr Aranui confirmed he was riding his bike in the middle lane (lane two). He said the traffic was backed up in the right-hand lane (lane three). He did not know why the traffic was backed up in lane three. He said the road was clear ahead of him in lane two for at least 100m, noting the road comes to a peak 130m ahead. He stated there were no cars in the bus lane (lane one).
He stated the accident occurred at about 6.15am prior to the peak hour and it was not busy. He said there were at least five cars in lane three which were stationary. Mr Aranui said when he first saw the insured vehicle (the car) it was in the row of five cars in lane three, the third car from the front. He stated he saw the car when he was roughly 10 to 15m away travelling between 55 and 60 kmph. He stated the car pulled sharply into lane two.
Mr Aranui also stated in response to Mr Nesbeth that when he first saw the car, the front left-hand corner of the car to the middle of the car, was in lane two. However, I was not convinced Mr Aranui understood he was being asked about when he first saw the insured vehicle as opposed to when he first saw the insured vehicle in lane two. Mr Aranui was unable to say whether he noticed the direction of the wheels when the car started to turn into lane two. He also stated when he collided with the insured vehicle it was not entirely in lane two.
Mr Aranui asked for the opportunity to draw a diagram showing the position of the vehicles on the road at the time of the collision. His diagram showed his bike travelling close to the dividing line and the collision occurring close to that dividing line as the car moved from lane three into lane two. When he was asked about the proximity of his bike to the dividing line
Mr Aranui drew another dividing line a little further to the left. Mr Aranui also stated that to avoid buffeting the safest place to ride is close to the dividing line.Mr Nesbeth asked Mr Aranui why Ms Gong stopped when she moved her car into lane one if the roadway ahead was clear, suggesting there was no reason for her to stop. Mr Aranui agreed there was no reason to stop but suggested she saw his bike and froze. When asked if he sounded his horn he said no, there was no time. Mr Aranui used the word “clipped” when referring to the collision with the car.
Mr Nesbeth read to the claimant the ambulance report. He said he was not sure what he told the ambulance officers but said he did not tell them he was travelling at 65 kmph. Mr Aranui was also asked about the hospital entry which reads “car stopped suddenly and he rear ended it”. He said he had no recollection of talking about the accident, he remembered being in pain, on painkillers and being alone.
Statement of Xiaoyi Gong dated 22 October 2019
Ms Gong is the insurer driver. At the time of the accident, she was travelling from her home to work at Chatswood. Ms Gong had been driving for about 13 years and generally drove on average 10 hours per week.
Ms Gong was the driver of a red automatic 2014 Mazda 3 hatchback. She described the traffic density as heavy, with many vehicles in front, behind and on her right side. She noted there were no parked cars on the left-hand side of the road where there was a bus lane (lane one).
Ms Gong stated she was alone in the car with no passengers.
Adopting the paragraph numbers used by Ms Gong she described the circumstances of the accident as follows:
“33. I travelled in an eastern direction along Victoria Road. I was initially in lane 3 of 3 and I recall from memory I merged into the left lane 2 of 3. It was a long time ago so I don't recall why I changed lanes as both lanes had congested traffic. I indicated left for a safe amount of time but I don't recall exactly how long. I checked my blind spot and checked my mirrors before merging left. I saw no traffic approaching from behind in the left lane before merging so it was clear and safe to merge. I didn't see the motorcycle before merging.
34. I recall the traffic in both lanes was fairly heavy but it was not bumper to bumper. It was flowing around 50 kph maximum but it was somewhat going slow then fast as it was quite congested.
35. I merged into lane 2 of 3 safely. I continued eastbound in the middle of that lane. I recall driving eastbound in lane 2 of 3 for at least 1 minute minimum before the collision occurred.
36. I merged well before the Moira Ave side street but I cannot recall exactly where I merged.
37. When I was about 10 metres west of Moira Avenue, the traffic ahead of my lane came to a sudden stop. I stopped suddenly and abruptly due to traffic in front. I then felt and heard the impact with the motorcycle immediately after stopping. I was in shock that the collision had occurred.
38. I was stationary at the time of the accident. I don't know how fast the motorcycle was travelling. I don't know where the bike came from as I never saw it approach. I am not sure if the impact pushed my car forward on the road but maybe a little. I don't recall hearing any screeching from the bike before the impact. I heard a loud bang from the impact. I would rate the force of the impact on a scale of 1-10 as maybe 6 out of 10.
39. I was unable to take any evasive action as I didn't know the collision would occur.
40. After the collision, I was in shock and I remained in my car where the impact occurred for about 30 seconds. I got out of the car and I saw the motorcycle and rider lying on the road near the passenger side of my car in the bus lane.”
Record of interview with Leading Senior Constable (LSC) Emma Holland
LSC Holland participated in a record of interview with Investigator David O’Neill on14 October 2019.
LSC Holland reported the job (the accident) was broadcast at 6.12am but she did not arrive at the scene until 6.50am. By that time only the tow truck and the motorbike remained at the scene. The motorbike had been moved to a driveway.
LSC Holland then went to Ryde Hospital and spoke to Mr Aranui who gave her the details of the insured driver. She did not otherwise obtain a statement from Mr Aranui. LSC Holland spoke to Ms Gong on the telephone who confirmed she had exchanged details with the claimant.
LSC Holland concluded both vehicles were travelling east on Victoria Road in stop, start traffic when the claimant did not stop in time and collided with the side of the insured’s car.
Police report – Event Ref No. 74921653
The police report states:
“About 6.30 am on Tuesday 6th August 2019, rider one (Mr Aranui) was travelling east upon Victoria Road, West Ryde behind driver two (Ms Gong) when he has failed to notice driver two slowing due to traffic and has collided with the rear of driver two.”
NSW Ambulance Service report
The report states inter alia:
“0/E PT STATES THAT HE WAS TRAVELLING AT 65KM/H WHEN VEHICLE STOPPED SUDDENLY IN FRONT OF HIM. PT STATES HE APPLIED BREAKS AND HIT BACK CORNER OF CAR AT ESTIMATED 45LLM/H, BIKE HAS FALLEN ON RHS AND FALLEN ON PTS ANKLE. PT STATES HE IMMEDIATELEY REMOVED ANKLE AWAY FROM UNDER BIKE. NIL LOC, ABLE TO RECALL FULL EVENT. 0/E PTS OBS BETWEEN THE FLAGS.PT IN SEVERE PAIN. NIL C SPINE PAIN, NIL HEADACHE, NO NAUSEA OR VOMITING. PT WEARING HELMET AND PROTECTIVE BIKE GEAR, ALL SELF REMOVED. TWO DEEP LACERATIONS, ONE 5CM MEDIALMETATARSAL, SECOND 5CM R MEDIAL MALEOLOUS. BOTH WOUNDS OOZING, DARK RED BLOOD.”
Ryde Hospital
On his admission to Ryde Hospital the history was recorded as
“- Riding motorbike on way to work this morning approx. 40 kph
- Car in front stopped suddenly and he rear ended it
- Right foot trapped between foot peg and ground as he fell to ground.
- …”
Various medico-legal specialists including Dr Giblin, Dr Porteous, Dr Powell, Mr Bryden-Brown of the Vocational Capacity Centre (VCC) and Medical Assessor Truskett reported the rear end collision occurred when Mr Aranui hit the rear of a car which had suddenly changed lanes and stopped.
Was the claimant contributorily negligent
I do not propose to place any weight upon the Record of Interview of LSC Holland or the opinion as to causation in the Police Report where LSC Holland did not inspect either vehicle, did not take photographs of the scene of the collision, did not obtain a version of how the accident occurred or obtain a signed statement from either Mr Aranui or Ms Gong. Whilst LSC Holland spoke to Mr Aranui at the hospital, she was not aware of the injury he sustained. No investigations were undertaken in respect of the accident and the evidence does not support the conclusion contained in the Police Report.
Mr Ghabar submitted, except for the diagram, the oral evidence of Mr Aranui was consistent with the contemporaneous statement he provided to the investigator on 22 October 2019, 11 weeks after the accident. That is:
· he was riding at a speed of 55 to 60 kmph;
· he was riding in lane two which was clear ahead;
· traffic in lane three was congested;
· the car was stationary in lane three;
· the car pulled out in front of him from the right lane when he was about 10m away;
· the insured driver zoomed into his lane quickly and then slammed on her brakes, and
· he tried to swerve to the left but it was too late and the front ride side of the bike impacted with the rear of the car.
Mr Ghabar also noted Mr Aranui was not challenged on the assertion that Ms Gong did not indicate before pulling out.
Mr Nesbeth argued the diagram drawn by Mr Aranui during the assessment conference was provided to show the relative position of the vehicles on the road. He submitted not only did the claimant position the vehicles close to the dividing line he also used the word “clipped” when referring to the collision. In relation to the diagram Mr Ghabar submitted I would prefer the signed diagram Mr Aranui provided to the investigator on 22 October 2019 which shows the car had moved further into lane two and had started to straighten up when the claimant’s bike collided with the rear left hand corner of the car. The diagram drawn by Mr Aranui during the assessment conference is clearly a rough diagram with little accuracy as to the width of each lane or the shape or position of the vehicles. I prefer the diagram provided to the investigator some 11 weeks after the accident on the basis it is a more contemporaneous record of what occurred. Moreover, I do not consider the use of the word “clipped” is significant where the collision was sufficient to cause the claimant to sustain serious injury to his right foot and ankle.
In relation to the history recorded in the ambulance report and the hospital records, Mr Ghabar referred to the warnings given by Basten JA in Container Terminals Australia Ltd v Huseyin[1] and Mason v Demasi[2] where he cautioned that clinical notes:
· are usually taken in furtherance of a purpose different to that for which they are used in proceedings;
· do not contain the questions of the health professional that elucidated the patient’s reply;
· are likely to be only a summary rather than a verbatim recording, and
· are affected by a range of factors, including fluency of language and the patient’s understanding of the purpose of the questioning.
[1] Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8].
[2] Mason v Demasi [2009} NSWCA 227 at [2].
Mr Ghabar also submitted that the ambulance report and the entry in the hospital notes are not inconsistent with the claimant’s evidence where the car had stopped and the claimant’s bike did hit the rear of the car. Mr Nesbeth submitted that if the claimant felt he had been cut off by the car he would have said so early in the piece.
I do not propose to draw any conclusion adverse to the claimant arising out of either the ambulance report or the entry in the hospital notes, keeping in mind the comments of Basten JA in Huseyin and Demasi and where the reports, whilst not a complete version of what the claimant alleges occurred, are not inconsistent with the claimant’s version of events. It is also significant that at the time these histories were obtained the claimant was in pain and concerned about the injury to his foot and ankle.
The other contemporaneous record consistent with the claimant’s version of events is the Application for personal injury benefits dated 29 August 2019 where the claimant reports Ms Gong pulled out of her lane and into his lane without warning before abruptly slamming on her brakes.
In Podrebersek v Australian Iron and Steel (1985) 59 ALR 529 (Podrebersek) the High Court at [10] stated:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage …and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.”
Where the applicable speed limit was 70 kmph and the claimant was travelling at 55 to 60 kmph with no vehicles travelling directly ahead of him I am not satisfied he drove at a speed excessive in the circumstances, or that he failed to keep a proper lookout or that he failed to maintain a safe distance. I find the insured driver departed from the standard of care of the reasonable person in suddenly swerving into the middle lane without keeping a proper lookout for vehicles travelling in that lane, in this case, the claimant’s vehicle.
In accordance with Podrebersek I am not satisfied that there was any departure by the claimant from the standard of the reasonable person in the circumstances which would result in a finding of contributory negligence.
THE ASSESSMENT OF DAMAGES
The evidence
The claimant provided a statement dated 9 August 2022, a supplementary statement dated 23 February 2023 and oral evidence at the assessment conference.
He is now 33 years of age. He was born in New Zealand and migrated to Australia in 2012. He resides with his partner and has five dependent children.
Mr Aranui left school at age 16 years and worked in various roles, namely, commercial fencer, landscaper, garbage collector, work at a fun park, as a water proofing roofer and in the clean-up in Christchurch following the earthquake.
On arrival in Australia Mr Aranui worked in abattoirs, as a scaffolder in Queensland and on or about 2016 he commenced working with DB Scaffolding & Rigging Pty Ltd (DB) as a scaffolder. This was the claimant’s employer at the time of the accident.
At the time of the accident the claimant considered himself to be fit and healthy. He had a history of mild asthma. On 17 October 2017 he complained of lower back pain, he sustained a right ankle strain on 9 November 2017 and on 4 May 2018 was diagnosed with gout. The claimant states he fully recovered from the right ankle strain and following a period of light duties returned to his pre-injury duties. He also refers to a minor injury to the right knee and to the neck but cannot recall when they occurred, simply that he took one or two days off work on each occasion.
Following the accident on 6 August 2019 the claimant was transported to Ryde Hospital where he was an inpatient until 12 August 2019.
At Ryde Hospital Mr Aranui came under the care of Dr Papadimitriou. An X-ray showed a Chopart fracture dislocation, a dislocation of the mid tarsal joint of the foot that separates the hind foot from the mid foot. A CT scan of the right foot on 7 August 2019 demonstrated fractures through the anterior calcaneus, lateral navicular, and the base of the second metatarsal.
On 6 August 2019 he underwent a right foot debridement and application of an external fixator as well as a washout. He underwent a second operation on 9 August 2019 which was an open reduction and internal fixation of the navicular and a repeat washout. He was discharged non-weight bearing on crutches with his leg in an external fixator for 12 weeks. He returned to hospital on 23 September 2019 to have the external fixator removed. Mr Aranui remained in a CAM boot for approximately three months and was partial weight bearing with crutches for approximately eight months in total.
He consulted his general practitioner Dr Alsaad and underwent treatment with Jarryd Chippendale at Parramatta Physiotherapy for about 18 months.
Mr Aranui was certified unfit for work. He continued to experience pain, stiffness and numbness in his right foot and ankle. He also stated he was severely restricted in his ability to move his right foot and ankle.
In November 2020 Mr Aranui consulted Dr Alsaad and informed him he wanted to try a return to work as a rigger. He found walking very painful and after two days he returned to see
Dr Alsaad informing him he could not bear the pain. He was again certified unfit for work. He ceased working after the third day.On 11 April 2021 Mr Aranui consulted Dr Alsaad. He certified him fit to try to go back to work. On 12 April 2021 Mr Aranui returned to work with DB. Whilst Mr Aranui did the work for about two months, he described struggling every day. He had pins and needles in his ankle, and pain and discomfort in the right foot with swelling. Every day after work he found it necessary to elevate his right foot, use an ice bath and at lunch time he applied Deep Heat.
During this two-month period Mr Aranui arose at 4.30am to get public transport to work. He started work at 7am. However, he allowed an hour to walk the 100m from Circular Quay to the building site. By 3pm each day he was fully limping.
Mr Aranui stated he could not do the work of an average scaffolder. He could not build scaffold, he could not bring it down, he could not walk on the scaffold and he could not go from one level to another. At the end of the two-month period work began to slow down and even though Mr Aranui had worked for DB for four and a half years he was let go, although other workers were retained.
Whilst he was off work Mr Aranui obtained additional tickets, so he could operate a forklift, a crane and a telehandler. He also completed a short course to become a lift hoist operator.
After his employment with DB ceased Mr Aranui obtained work with labour hire companies.
The claimant states in the financial year ended 30 June 2022 he performed the following roles on a casual basis:
· 2XM Recruit Pty Ltd as a telehandler operator;
· Action James Pty Ltd as a labourer;
· Buildability Services Pty Ltd as a telehandler operator;
· DCR Newcastle Pty Ltd as a labourer;
· D Shapiro and Shapiro Family Trust as the trustee for the Whiteside Family Trust and SD Whiteside as a labourer;
· University HR Services Pty Ltd as a labourer;
· Euroform Pty Ltd as a forklift operator, and
· Regal Recruitment Pty Ltd as a forklift operator.
On 23 January 2023 Mr Aranui started a new job on a casual basis as a scaffolder with Nexus Access Pty Ltd (Nexus) on an annual salary of $87,360. He stated he was financially struggling and he decided to try and return to scaffolding. He is finding the job difficult and he finds himself in some pain. During the day he removes his boot and his ankle brace, performs stretches and applies Deep Heat. Every night he uses an ice bucket and his wife massages his foot to ease the pain and reduce the swelling. He said he tries to work through the pain. He does not go on the scaffolding in the afternoon but finds other tasks to do. This is permitted by his employer. Notwithstanding the difficulties he experiences Mr Aranui said he would work overtime if it was offered.
Mr Aranui states he continues to experience constant aching and stiffness in his right foot and ankle. He describes the pain radiating into the right leg, right calf, right knee, right buttock and right side of the lumbar spine. His sleep can be disturbed and he also experiences numbness in his right foot and several toes. He walks with a limp favouring the right foot and finds it difficult to negotiate slopes and uneven surfaces. The scarring to the right foot is tender, discoloured and becomes irritated when he wears tight footwear. Mr Aranui takes no regular medication but uses Nurofen if necessary. He now wears well-padded supportive lace up boots with an orthotic in the right shoe.
THE MEDICAL EVIDENCE
Dr Dimitri Papadimitriou, orthopaedic surgeon
The clinical notes of Dr Papadimitriou include reports documenting the progress of treatment in the acute phase of Mr Aranui’s injury including the surgical procedures.
Dr Andrew Porteous, occupational physician
Dr Porteous assessed the claimant by videoconference on 31 August 2021 and provided a report dated 7 September 2021. He reported:
“Currently Mr Aranui has chronic right foot pain rated 5/10 to 8/10 on a pain scale. At the end of the standing and walking on it the pain can be 8/10 in the foot. As soon as he sits down it locks and spasms. He has got constant numbness in the medial right foot through into the dorsal aspect of the big toe and second toe. He gets tingling and pins and needles in the arch after 10 minutes of sitting and has to stretch it before it goes. He has trouble stepping off steps or ladders. He also with the injury appears to have lost balance and proprioception and has difficulty on uneven surfaces.”
He reported constantly disturbed sleep. Mr Aranui said he is frustrated but does not have depression or anxiety. Dr Porteous considered the prognosis very guarded.
Dr Peter Giblin, orthopaedic surgeon
Dr Giblin assessed Mr Aranui on 22 September 2021. He noted Mr Aranui had a slightly short-stepped gait because of the obvious deformity of his right foot. He diagnosed a compound fracture/dislocation involving the right foot and noted he was permanently unfit to use his right leg for repetitious impact activities, prolonged standing, walking, stair or ladder climbing or working at heights.
He considered the claimant was fit for his current role as a machine operator operating forklifts and scissor lifts but considered eventually he will require a more sedentary work environment. He also considered Mr Aranui will require further surgery, namely, a pantalar arthrodesis.
Dr Richard Powell, orthopaedic surgeon
Dr Powell assessed the claimant at the request of the insurer and provided a report dated 17 February 2022. He reported Mr Aranui had completed an appropriate rehabilitation programme with a good result but he remained symptomatic with ongoing pain, swelling, stiffness and restriction in range of movement. He stated:
“He has sustained a significant injury to the right midfoot. He now has ongoing symptoms in relation to the ankle, midfoot and subtalar joint. The natural history is for continued deterioration over time and these areas will remain a source of ongoing symptoms and functional limitations into the future. As such, he will not be able to resume his full pre-injury activities.”
Dr Powell stated further treatment may include fusion of the midfoot and possibly the subtalar joint.
Certificate of Medical Assessor Truskett
Medical Assessor Truskett issued a certificate dated 23 October 2022. He concluded as a result of the accident Mr Aranui sustained a mid-foot dislocation requiring open reduction and internal fixation resulting in limitation of dorsi and plantar flexion together with significant scarring. He found no evidence of exaggeration and reported the claimant was consistent throughout the presentation. He reported Mr Aranui had a very positive attitude to work. He assessed an 8% whole personal impairment.
THE INJURY SUSTAINED BY THE CLAIMANT
There is no dispute Mr Aranui sustained a compound fracture/dislocation of the right foot. It is agreed he is unfit for prolonged walking or standing, for climbing ladders, negotiating slopes or uneven surfaces. The prognosis is poor with the likelihood of continued deterioration and the very real possibility he may require an arthrodesis.
THE ASSESSMENT OF DAMAGES
Past economic loss
It is agreed at the date of accident, the claimant was employed as a scaffolder earning the sum of $1,757 net per week.
The insurer submits I would allow $1,757 net per week for 26 weeks, $250 net per week for the following 154 weeks and $100 net per week thereafter.
The claimant submits I would allow $1,757 net per week until 12 April 2021 (88 weeks), $250 net per week from 13 April 2021 until 30 June 2021 (when the claimant returned to work with DB) and from 1 July 2021 to 23 January 2023 about $800 net per week. Thereafter, during the claimant’s current employment with Nexus it is submitted a small loss should be allowed.
I am satisfied that the claimant is a stoic, hardworking man who is determined to maximise his earnings to provide for his family. I am satisfied that all absences from work since the accident have been as a result of the accident-related injuries.
Period 6 August 2019 to 12 April 2021
I see no reason to limit the first period of loss to 26 weeks having regard to the evidence and I propose to allow $1,757 net per week from 6 August 2019 to 12 April 2021 (88 weeks) in the total sum of $154,616.
Period 13 April 2021 to 30 June 2021
I am not satisfied the claimant sustained any loss during his return to employment with DB between 13 April 2021 and 30 June 2021. Whilst I note his tax return shows gross earnings of $22,213 and tax withheld of $9758, the tax payable was adjusted to $2,563 when Mr Aranui submitted his tax return. Accordingly, his net weekly earnings for that period averaged $1,786.
Period 1 July 2021 to 22 January 2023
Whilst I note Mr Aranui was not the only employee whose employment was terminated by DB in June 2021, I am satisfied, noting he had been employed with DB for four and a half years prior to the accident, that he was included in that cohort because his injury meant he was not able to complete all the duties required of a scaffolder.
I propose to have regard to the claimant’s taxation assessment for the financial year ended 30 June 2022. His taxable income was $62,401 and tax payable was $10,747 giving a net income of $51,654 or $993 net per week.
Mr Aranui has demonstrated a capacity to earn the sum of $1,757 net per week uninjured and indeed if he had been able to maintain his employment with DB the sum of $1,786 net per week.
Accordingly, I propose to assess past wage loss for the period 1 July 2021 to
22 January 2023 (81 weeks) in the sum of $750 net per week in the total sum of $60,750.
Period 23 January 2023 to date
Payslips from Nexus show an annual salary of $87,360 based on an hourly rate of $42. The payslips show the claimant commenced employment on 23 January 2023 and earnt the following:
Pay period
Net earnings
23 January 2023 – 29 January 2023
$1,568
30 January 2023 – 5 February 2023
$1,718
6 February 2023 – 12 February 2023
$1,623
13 February 2023 – 19 February 2023
$1,623
20 February 2023 – 26 February 2023
$1,623
27 February 2023 – 5 March 2023
$1,637
Having regard to those payslips I assess the claimant’s current average weekly earnings with Nexus at $1,632 net. I allow past wage loss for the period 23 January to date (7 weeks) in the sum of $125 net per week in the total sum of $875.
I assess damages for past wage loss in the total sum of $216,241.
I assess damages for past loss of superannuation benefits calculated at 11% of the net past wage loss in the sum of $23,786.
Future economic loss
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances.
Having regard to his current earnings with Nexus the insurer submits there is a disconnect between what the medical experts say about the claimant’s limitations and what he is in fact doing. Mr Nesbeth submitted that based on the claimant’s earnings with Nexus and the possibility the claimant can earn similar amounts in other roles, such as forklift driver, future economic loss should be calculated at $100 net per week.
The claimant submits that the claimant’s most likely earnings uninjured as a scaffolder would be the sum of $1,800 net per week having regard to Consumer Price Index increases. The claimant submits that the best measure of his capacity for the future is his performance over the last 18 months to two years since his return to work. Notably in the only full year since his return to work, the 2022 financial year, the claimant earnt $993 net per week. During this financial year the claimant undertook various labour hire roles having acquired additional qualifications during his period of convalescence. The claimant submits his most likely future circumstances should be reflected in the difference between what he could earn as a scaffolder and his average earnings in the 2022 financial year a loss of approximately $800 net per week.
Whilst Mr Aranui has returned to work as a scaffolder the evidence suggests this employment will be short lived having regard to the extent of his disability and where he is only able to maintain that employment due to the benevolence of his employer.
The expert medical opinion is unanimous in concluding that Mr Aranui is unfit for his pre-injury work as a scaffolder. Dr Giblin concluded Mr Aranui will have permanent physical limitations, the prospect of post-traumatic arthritis and future surgical consideration. He stated he was permanently unfit to use his right leg for repetitious impact activities, prolonged periods of standing, walking, stair or ladder climbing or working at heights.
Dr Porteous concluded Mr Aranui was restricted from constant walking and standing, from climbing ladders or slopes. He also is restricted from heavy lifting, pushing, pulling or carrying and from frequent or constant walking on rough or uneven ground. Dr Porteous concluded Mr Aranui was unfit for the majority of his pre-accident jobs and for scaffolding. He opined the claimant will have difficulty competing on the open labour market with able bodied persons for jobs concluding:
“With his ongoing accident-related substantial right foot pain and restrictions, it is more likely than not that he is going to have more time without work, more time in lesser work or lesser jobs and ongoing restricted duties.”
Dr Powell’s concluded Mr Aranui’s prognosis was guarded. He concluded in the long term he was better suited to work of a sedentary nature that does not involve prolonged standing or walking. He stated:
“Mr Aranui has demonstrated an admirable ability to return to the workforce
through a labour hire company, though I suspect he will have increasing
difficulty undertaking physically demanding work that involves prolonged
periods of standing and walking and negotiating uneven ground.
Unfortunately, much of his work to date has been in that area including work
as a scaffolder, roofer, abattoir worker and labourer.”
Both Dr Giblin and Dr Powell concluded Mr Aranui may require future fusion surgery.
Mr Bryden-Brown, physiotherapist undertook a functional assessment on behalf of the VCC. He concluded Mr Aranui was not physically capable of returning to his pre-injury employment as a scaffolder. He further stated:
“Although he demonstrated the manual handling capacity for roles with medium to heavy levels of physical demands, given his antalgic gait, frequent left sided weight shift and ongoing right ankle dysfunction, he is best suited to roles with sedentary to light physical work demands. In selected alternate roles, Mr Aranui is currently physically capable of full-time work.”
Even though Mr Aranui is highly motivated to continue employment in the construction industry, as evidenced by the additional tickets he obtained, I note those alternative roles such as forklift operator, hoist operator, crane operator or telehandler would still require
Mr Aranui to climb up steps to enter and exit a vehicle cab and to negotiate rough or uneven ground such as that found on construction sites. Mr Aranui informed the vocational assessor Mr Henricks that he had “very poor” computer skills, had difficulty using the internet browser on the computer and required assistance from his wife in drafting and formatting his curriculum vitae.Mr Aranui has only ever worked in manual labour roles and according to Mr Henricks would require additional technical and computer skills training to secure employment in other vocational areas such as stock clerk, warehouse administrator, sales representative, inquiry clerk or teacher’s aide. It is difficult to be confident Mr Aranui has the capacity to transfer to any of these roles but certainly the evidence is clear that he will have difficulty maintaining employment in the construction industry.
In any event in Mr Aranui’s age group there is a difference of approximately $1,000 gross per week between the market wages he could achieve in work as a scaffolder and in those alternative roles proposed by Mr Henricks.
I am satisfied Mr Aranui has sustained a significant impairment of his future earning capacity. I consider he is unlikely to maintain his current employment for longer than 12 months. Thereafter I consider he will become unfit for work as a scaffolder but will continue to attempt to undertake other less demanding roles in the construction industry although long term I am of the view he will become unfit for work in that industry and will be forced to find light sedentary work.
I consider not only the claimant’s earnings during the 2022 financial year but also the wages nominated by Mr Henrick as payable for those alternative roles to be a measure of the claimant’s future earning capacity and I assess that loss to be the sum of $750 net per week.
I propose to allow future loss of wages calculated at $125 net per week for the next 12 months on the basis the claimant will attempt to maintain his current employment in the short term. Thereafter, I propose to assess damages for the future impairment of the claimant’s earning capacity in the sum of $750 net per week. In undertaking that assessment, I also take into consideration that Mr Aranui will be disadvantaged on the open labour market, may have periods of unemployment, and may also have a period of incapacity for work if he requires future surgery.
Accordingly, I assess damages for future wage loss as follows:
(a) 15 March 2023 to 15 March 2024 in the sum of $125 net per week. The multiplier for 1 year on the 5% tables is 50.9. I do not propose to make any discount for vicissitudes having regard to the short time frame. I calculate $125 x 50.9 in the sum of $6,362.
(b) 15 March 2024 until retirement at age 67 years (32 years) in the sum of $750 net per week. The multiplier for 32 years is 845.0 and the multiplier for 1 year on the 5% deferred tables is 0.952. I propose to apply the usual discount of 15% for the vicissitudes of life. I calculate $750 x 845.0 x 0.952 x 0.85 in the sum of $512,830.
I assess damages for future wage loss in the sum of $519,192.
I assess damages for future loss of superannuation benefits calculated at 14.5% of the claimant’s net future wage loss in the sum of $75,282.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the findings set out above:
Past loss of earnings (incl superannuation) $240,027.00
Future loss of earnings (incl superannuation) $594,474.00
TOTAL DAMAGES ASSESSED $834,501.00
The claimant’s economic losses are to be reduced by and the insurer is to have credit for statutory payments made pursuant to s 3.40 of the MAI Act.
COSTS AND DISBURSEMENTS
I refer to the claimant’s schedule of costs and disbursements. There was no dispute raised by the insurer. However, I have adjusted the figures claimed for representation at the assessment conference and for the four conferences to reflect t
Accordingly, I assess the claimant’s costs and disbursements in accordance with the attached Damages and Costs Calculator.
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