Beatty v QBE Insurance (Australia) Limited
[2024] NSWPIC 695
•13 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Beatty v QBE Insurance (Australia) Limited [2024] NSWPIC 695 |
| CLAIMANT: | Fenton Beatty |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 13 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; motor vehicle accident; driver; claims assessment; damages for non-economic loss; damages for future economic loss; most likely future circumstances; sick leave; assessment of damages; then 54-year-old claimant sustained injury in a motor vehicle accident on 16 June 2018; injuries to cervical spine, right little finger; left shoulder, right shoulder, lumbar spine, left knee; pre-existing degenerative condition; multiple hospitalisations and surgery include surgery to right little finger; left shoulder supraspinatus repair and biceps tenodesis; cervical anterior C5-7 fusion and total disc replacement at C3/4; cervical posterior C5/6 fusion and nerve decompression; possibility of future surgery; extremely fit pre-accident; role as manager of tree services now largely supervisory; utilised sick leave for all absences to date; Held – claimant honest stoic man; life expectancy 24 years; no suggestion amelioration in cervical spine condition; possibility of future surgery; non-economic loss assessed at $375,000; no entitlement to value of sick leave where employer not prepared to reinstate sick leave if reimbursed; representation by insurer as to recredit of sick leave not create an estoppel; damages for loss of opportunity to receive performance-based salary increase assessed at $25,000; future economic loss assessed on basis claimant only able to work part-time three days a week deferred for three years for the remaining four years until retirement; buffer of $100,000 for possibility of early retirement, loss of chance sick leave will be adequate for future absences from work and for loss of opportunity to receive future performance based salary increases; total future economic loss assessed at $216,767.69; total damages assessed at $616,767.69; costs assessed in favour of claimant. |
| DETERMINATIONS MADE: | CERTIFICATE
|
REASONS FOR DECISION
INTRODUCTION
On 16 June 2018 Mr Fenton Beatty (the claimant) sustained injury in a serious motor vehicle accident (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 Mr Beatty.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Beatty under the MAI Act.
In a liability notice issued under s 6.20(1) of the MAI Act dated 10 August 2020 the insurer has admitted liability for the claim.
The claim was listed for assessment on 12 November 2024.
I am asked to assess damages in respect of the following:
(a) non-economic loss;
(b) past economic loss, and
(c) future economic loss.
THE EVIDENCE
The claimant is 60 years of age and was 54 years of age at the date of accident.
Mr Beatty has provided statements dated 19 May 2023 and 19 September 2024 and he gave oral evidence at the assessment conference.
Pre-accident health
Mr Beatty said he was extremely fit, attending the gym on average three to five times a week prior to the accident. He played tennis, swum and travelled overseas. His hobbies also included jogging, bike riding, skiing, mountain walking, bush walking and gardening. Indeed, Mr Beatty said prior to the accident he had less than 2% body fat.
Mr Beatty reported he was involved in a rear-end collision when an elderly man drove into the back of his car in about 2010. Mr Beatty stated he did not sustain any permanent injury or ongoing problems from this accident and did not make a claim. Medical records of Ramsay Street Medical Centre show Mr Beatty attended on 16 April 2010 when he reported his involvement in an accident the preceding day. He complained of pain to the left medial side of the knee, pain in the lower back region, neck pain and rigidity and bilateral jaw pain on opening mouth. Dr Vimalaratnam also recorded “had car accident 1 month ago recovering from neck injury”. Mr Beatty could not recall any involvement in an earlier accident.
There are no further reported attendances in respect of the 2010 accident.
He confirmed in the five years before the accident he attended upon his general practitioner (GP) Dr Kiang at Maroubra Medical Centre and Mr Stephen Esposito of Kingsford Chiropractic Clinic.
Mr Beatty reported he experienced muscle tension and pain from time to time which he stated was mostly due to ergonomics at work and exercise. Mr Beatty said in March 2018 new office desks and furniture were installed without ergonomic assessment. He mentioned to his GP he had developed a sore and tight neck and shoulder muscles and was encouraged by his GP to access free visits to a physiotherapist or chiropractor which he did. Mr Beatty thought he first saw Mr Esposito in about March 2018.
However, the records show on 4 January 2017 Dr Kiang reported Mr Beatty was suffering from neck pain which had bothered him for more than six months. Dr Kiang completed a GP Management Plan on 4 January 2017 when he referred Mr Beatty to Mr Esposito. A diagram dated 6 July 2017 indicated the areas of injury or discomfort to be the lower back on the left hand side and the cervical and thoracic spine, also on the left hand side. The records of Mr Esposito show treatment to the low back on 8 February 2017, headaches on 3 May 2017, treatment to the low back in July and August 2017, and treatment continuing in September, October and November to either the cervical, thoracic or lumbar spine. Treatment resumed in January 2019, with consultations on 3, 13 and 20 February 2018. When questioned at the assessment conference Mr Beatty did not recall those attendances stating his recollection was that he consulted Mr Esposito for treatment in March 2018.
On 5 March 2018 Dr Kiang’s consultation note refers to back spasms, insomnia and notes Mr Beatty was seeing a chiro.
Mr Beatty agreed he saw Mr Esposito on 14 June 2018 when it was reported he was tight and sore across the shoulders and he had cervical spine discomfort and restricted range of movement.
Mr Beatty said he changed chiropractors after the accident because Mr Esposito was not available. Mr Beatty did not recall that he saw Mr Esposito again on 31 December 2018 and 4 January 2019. His recollection was that Mr Esposito was teaching and unavailable.
Mr Beatty did not recall that as of January 2017 he had experienced neck pain for at least six months. He stated pre-accident he did not have neck problems to the extent he now has.
Pre-accident work history
Mr Beatty left school at the end of Year 10. He obtained a Green Keepers Certificate, a Certificate in Bush Regeneration, a Horticulturalist Certificate and a Business Management Certificate.
At the time of the accident Mr Beatty was employed as a Manager of Tree Services at Northern Beaches Council. He had been employed as a manager since 1886 or 1987 when it was Manly Council. Mr Beatty described his duties as follows:
(a) managing a team of nine arborists responsible for the trees in the Local Government Area (LGA), both on Council and private property;
(b) responsibility for trees in the LGA covering 255sq km of trees or approximately 12.5 million trees;
(c) undertaking hands on arboreal work with responsibility for tree maintenance, cyclic pruning, taking down trees and planting as required. He conducted physical site visits, issued tree permits, and ensured compliance for illegal tree works. He assessed development applications relating to trees, managed government grants and storms, and
(d) responsibility for customer service management, contract management, finance, budget and management.
Mr Beatty says at the time of the accident he worked approximately 35 hours per week with a gross fortnightly wage of $5,232.26 or $3,764.26 net per fortnight.
The accident
On 16 June 2018 Mr Beatty was the driver of a Hyundai Tucson. A vehicle on the left failed to stop at a stop sign and collided with the front left corner of Mr Beatty’s stationary vehicle. Mr Beatty states his vehicle then rotated and tipped onto two wheels before being pushed onto the other side of the road, mounting a kerb and colliding with a nearby street pole. All airbags activated and the claimant’s car was towed away before being written off. The claimant’s sister, a passenger in his vehicle, was more seriously injured and she was taken by ambulance to hospital. Even though he was injured Mr Beatty was taken home by police due to concern about his elderly mother.
Post- accident treatment
On 18 June 2018 Mr Beatty consulted Thomas Bunting, chiropractor. Mr Bunting recorded the claimant’s involvement in the accident and noted his complaints of pain in both shoulders, neurological symptoms from the left lower cervical spine, sharp pain below the left elbow in combination with pins and needles below the elbow to the wrist and the entire left hand. He noted Mr Beatty’s right fifth finger was visibly swollen and potentially displaced. He reported severe pain over the mid to upper thoracic spine, pain and discomfort over the left posterior pelvis and hip and pins and needles in the left buttock.
Mr Beatty subsequently consulted Dr Kiang on 18 June 2018. He noted the accident and reported whiplash injuries and bruising around the seatbelt area. He also reported nil headaches, seeing chiro, nil neck pain, and full ROM (range of motion). On 29 June 2018 Dr Kiang reported left foot, toe pain, right shoulder pain, left hip pain and neck pain. On 10 July 2018 Dr Kiang reported trauma to the fifth digit of the right hand.
On 26 July 2018 Dr Kiang reported reduced range of neck movement with pain but no sensory changes in the upper limbs. Mr Beatty also complained of pain persisting in the right little finger and in both feet.
Mr Beatty underwent massages and physiotherapy but noted that his shoulders, neck and right little finger continued to cause him problems.
A GP questionnaire completed by Dr Kiang on 1 November 2018 diagnosed pain, secondary to whiplash injury, cervical spondylosis, C5/6 and C6/7 bilateral foraminal narrowing with disc bulging and symptoms recorded as well as pain to the left foot and toes, right shoulder, left hip, neck, jaw pain, right foot and toes, 5th digit.
Mr Beatty underwent an MRI scan of the hip and cervical spine on 19 November 2018. Dr Lucas radiologist reported in respect of the cervical spine:
“There is degenerative cervical spondylosis with disc degeneration at C2/3, C3/4, C4/5 and C5/6 with posterior discophytic bulging and foraminal narrowing bilaterally at C5/6 and C6/7 particularly which potentially could irritate the exiting nerve roots at these levels.
There is minor canal narrowing at these levels but no compression on the cord or intrinsic change in the cord.
There is no paraspinal abnormality.
Impression: Cervical spondylosis with some foraminal narrowing at C5/6 and C6/7 bilaterally with disc bulging.”
In respect of the left hip Dr Lucas reported:
“There is no fracture.
Minor gluteal peritendonitis is noted with some trochanteric bursal hyperintensity and minor signal change in the tendons without a tear.
The hamstring origin also shows enthesopathy more prominent than the gluteal tendons with partial thickness tearing in both semimembranosus and the conjoint tendon and peritendonitis.
The left hip joint shows features of early arthrosis. There is tearing of the anterosuperior labrum, osteophytes and some early chondral wear.
There is no synovitis or focal lesion or fracture.
Similarly, there are some early degenerative changes at the hamstring enthesis on the right and the hip joint on the right. The sacroiliac joints and pubic symphysis appear normal.
Impression: Hamstring more than gluteal enthesopathy. Early hip joint arthrosis.
No fracture.”
Mr Beatty saw Dr Broe, orthopaedic surgeon on 22 January 2019 in respect of left sided lower back pain and pain arising from the posterior sacroiliac joint. Dr Broe noted a full range of motion of the left hip and tenderness over the left sacroiliac joint. He reviewed the MRI of the left hip and concluded the pain experienced by Mr Beatty was not coming from the hip joint itself but was likely from the lumbar spine or the sacroiliac region.
Mr Beatty consulted Dr Ralph Stanford, neurosurgeon on 1 February 2019. He concluded the MRI scan showed age-related degenerative changes in the mid to lower cervical spine with left sided C6/7 foraminal narrowing. Dr Stanford considered the best management was exercise and recommended physiotherapy.
On 13 February 2019 Dr Bernard Schick, orthopaedic surgeon inserted an intramedullary pin into the right little finger for management of a mallet finger deformity. The pin was removed three months later. On review on 21 February 2019 Dr Schick noted Mr Beatty remained pain free and happy with the finger.
On 4 July 2019 the claimant underwent an MRI scan of the left shoulder which disclosed a full thickness tear of the supraspinatus tendon with approximately 11mm of tendon retraction. There was also thickening in the subacromial bursa and a small partial thickness articular-sided tear of the distal posterior infraspinatus tendon. The long head of biceps was intact although it slightly extruded in its intraarticular portion.
Mr Beatty was reviewed by Dr Alan Dao, orthopaedic surgeon in respect of the injury to the left shoulder. On 15 August 2019 Dr Dao reported he considered the findings in the left shoulder MRI were “in keeping with a relatively fresh injury of the rotator cuff tendons”. Dr Dao recommended surgical repair but this did not occur until 20 July 2020 where the insurer disputed the treatment.
On 18 December 2019 Mr Beatty sustained a crush injury to his left PIP (proximal inter-phalangeal) joint. Mr Beatty says this occurred due to his accident related injuries because he was unable to look down and remove his hand quickly from a slamming gate. The injury largely settled with hand therapy.
On 20 July 2020 Dr Alan Dao performed a left shoulder supraspinatus repair and biceps tenodesis. Mr Beatty states this improved the range of movement and the strength in his shoulder.
Mr Beatty underwent a further MRI of the cervical spine on 9 December 2020. The report concluded:
“Multilevel degenerative disc and facet joint disease. Foraminal stenosis at C3/4 bilaterally, C4/5 on the right, C5/6 bilaterally and C6/7 bilaterally, with potential C4, C5, C6 or C7 nerve root impingement”.
Having regard to his ongoing pain Mr Beatty was referred to Dr Ralph Mobbs, neurosurgeon. On 17 March 2021 Dr Mobbs reported Mr Beatty complained of neck pain and radicular nerve pain down the arms which he rated at 8+ out of 10. Dr Mobbs noted restriction of neck extension and rotation and diminished upper limb reflexes. He noted bilateral foraminal stenosis at C5/6 and C6/7 levels. On 1 June 2021 he recommended total disc replacement at the C3/C4 level, an anterior discectomy and fusion at C5/6 and C6/7 levels. Whilst he noted this was a major intervention he considered it would address all the pain generators in one go. On 21 July 2021 Dr Mobbs noted the worsening radiculopathy down both arms with paraesthesia into the fingers and noted Mr Beatty episodically dropped objects. The insurer did not approve the surgery and Mr Beatty went on a public waiting list.
In a report dated 1 September 2021 Dr Mobbs concluded there was a link between the injury sustained in the accident and the claimant’s presentation with cervical spine issues. Whilst the accident was not the only factor he believed it was a significant contributing factor.
On 1 November 2022 Mr Beatty underwent a total disc replacement at C3/4 and an anterior cervical discectomy and fusion at C5/6 and C6/7performed by Dr Ralph Mobbs. Mr Beatty continued to have restriction of mobility in his neck and extreme nerve pain.
On 6 February 2023 Mr Beatty underwent a cortisone injection into the C6/7 nerve root because of ongoing pain down the left arm and in the shoulder.
On 27 April 2023 Mr Beatty underwent a second cortisone injection into the C6/7 nerve root. He states this injection did not help.
On 7 March 2024 Mr Beatty underwent a cervical posterior C5/6 fusion and nerve decompression performed by Dr Christopher Huang, neurosurgeon.
Following the 7 March 2024 surgery Mr Beatty developed a haematoma in the wound area and the stitches burst. He was readmitted to hospital on 18 March 29024 and underwent an emergency surgery to open and clean the wound.
Mr Beatty subsequently developed a fever and returned to hospital where he was treated for five days with intravenous antibiotics for a Staph infection from the earlier surgery.
After he returned home on a PIC line drip for six weeks with daily home care visits to change the drip canister and dress the wound a further infection developed in the wound. On 25 May 2024 Mr Beatty returned to hospital, Dr Huang debrided the wound site and removed remaining sutures from earlier procedures. Mr Beatty says he was informed this was an internal staph and sepsis infection which was life threatening. The wound closed and healed around July 2024 although Mr Beatty has been directed to take antibiotics, eight tablets per day for 12 months and undergo monthly blood tests.
In a report dated 4 November 2024 Dr Huang reported seven months after posterior neck surgery Mr Beatty was still experiencing ongoing neck pain in the midline and paramedian region as well as bilateral upper limb pain radiating to the second and third digits. Dr Huang reported the grinding in the neck and the tightness had improved but Mr Beatty still had symptoms in the arms as well as headaches. He had particular issues driving and sitting at a desk. Dr Huang reported the recent MRI scan showed no canal stenosis and satisfactory hardware placement with signs of fusion posteriorly although there remained foraminal stenosis at C3/4, C4/5 and C7/T1. Dr Huang recommended continued physiotherapy and further investigations.
Current position
In his recent statement Mr Beatty reported he continues to suffer from the following disabilities:
· pain, discomfort and restriction of movement in the neck and jaw area;
· extreme stiffness in the neck with spasms;
· pain, discomfort and restriction of movement in the right hand and right shoulder;
· pain, discomfort and restriction of movement in the left wrist and left shoulder;
· feelings of nerve pain, numbness and tingling sensations down the arms;
· inability to lift arms overhead or look down without pain and discomfort;
· pain, discomfort and restriction of movement in the left hip;
· pain, discomfort and restriction of movement in the low back, buttocks and sacroiliac joint area;
· pain, discomfort and restriction of movement in the left foot and toes;
· feelings of numbness and tingling sensations down the legs;
· pain and discomfort in the left knee;
· inability to kneel or squat without pain and discomfort;
· inability to walk for long periods without pain and discomfort;
· inability to sit for prolonged periods without pain and discomfort;
· pain and discomfort when walking up or down stairs or walking on uneven or textured surfaces;
· inability to drive for long distances without pain and discomfort;
· impotence;
· severe headaches;
· blurred vision.
· feelings of anxiety, especially around vehicles;
· feelings of constant stress;
· low moods, sadness and depression;
· panic attacks;
· difficulty falling asleep and staying asleep throughout the night;
· difficulty attending to household and domestic tasks, and
· stomach and gastrointestinal issues from the medications.
In his statement dated 19 September 2014 Mr Beatty reported he was undertaking the following treatment:
· consulting his GP three times a month;
· attending physiotherapy twice a week;
· attending chiropractic treatment once a week, and
· undertaking physiotherapy recommended exercises at the gym twice a week.
Mr Beatty described the physiotherapy and chiropractic treatment sessions as very painful.
Having regard to his ongoing neck symptoms Mr Beatty continues under the care of Dr Huang and is currently undergoing various investigations to determine the course of future treatment.
Mr Beatty said as a result of his injuries he has had to modify his role as a Manager of Tree Services into a more supervisory role. He now works in the office undertaking administrative work, budgeting, customer liaison and managerial duties. He stated he can no longer undertake duties which include arboreal work, attending building or construction sites to inspect trees or to deal with contractors. He also stated he has not been able to assist physically with storm management as he did pre-accident.
He currently works two days a week at home which is needed to break up the week from driving. He expressed concern about the possibility of a change in office policy with a push to get staff back in the office.
Mr Beatty said he did not think he could work another seven years, indeed, he stated if his doctor cannot fix his current pain he did not think he could work another 12 months. He stated Dr Huang had recommended further tests including nerve conduction studies, a CT bone scan with dye and suggested he may need another operation.
Mr Beatty became noticeably upset stating he did not know if he could cope with another operation. He described the operations as horrendous. He is no longer on Endone, but takes Panadol, Mersyndol and anti-inflammatory medication.
Mr Beatty said whilst he drives everyday he has some anxiety when driving. He also described feeling depressed. He stated he can no longer compete at work. Even though he was previously good at his job, he is no longer keeping up with changes and the workload. Mr Beatty said he has a new boss this year and he has been told he is not performing in line with the other managers. He said recently he worked some nine hour days and was also required to travel to and from work, an hour and a half each way. He said he was previously a very active person but now when he gets home he takes painkillers and goes to bed. He said he is no longer active on weekends. Indeed, recent weekends have been spent recovering in bed.
Mr Beatty said he is now back in the gym doing some moderate exercises, some walking and some swimming. Whilst prior to the accident he swum laps he now uses a snorkel so he does not need to turn his head and does breaststroke in a hydrotherapy pool. However, he is not doing anything socially at all.
Medico-legal reports
Dr Simon Journeaux, orthopaedic surgeon
Dr Journeaux undertook an assessment on the papers without examining the claimant. He provided a report dated 9 September 2019.
Dr Journeaux concluded the left shoulder had not been injured in the accident where he felt there was a lack of contemporaneous complaint of injury following the accident. Significantly Dr Journeaux made no reference to the severity of the collision and was apparently not briefed with the clinical notes of the treatment chiropractor to whom Mr Beatty complained of pain in both shoulders and whose examination revealed a potential rotator cuff tear noting an inability to abduct the arm. I do not find the opinion of Dr Journeaux to be persuasive.
Assoc Prof Shatwell, orthopaedic surgeon
Assoc Prof Shatwell examined the claimant at the request of the insurer and provided a report dated 27 July 2021.
He concluded the claimant’s neck pain was due to the widespread chronic degenerative disc disease in the neck, based on longstanding neck pain for many years. He noted Mr Beatty had a previous injury to his neck approximately 10 years earlier and chiropractic treatment for many years.
Assoc Prof Shatwell concluded Mr Beatty sustained soft tissue injures to the cervical and lumbar regions which were caused by the accident but which would have settled within a matter of weeks of the accident.
Assoc Prof Shatwell reported Mr Beatty had a reasonable result for the mallet finger injury with repair of the extensor tendon to the right little finger. He concluded this injury was probably related to the accident.
Assoc Prof Shatwell noted the lack of report relating to the left shoulder in Certificates of capacity issued by Dr Kiang and concluded the rotator cuff tear was not causally related to the accident noting such tears are common in males of Mr Beatty’s age.
He considered the other injuries were minor injuries and would have settled without specific treatment. He noted hip movement was symmetrical and considered it unlikely there was significant injury to the left hip joint. Assoc Prof Shatwell did not consider the injury to the left index finger of 18 December 2019 was a consequential injury but was merely happenstance.
He considered the accident caused soft tissue injury which had resolved and the need for surgery was due to the chronic degenerative and facet joint disease in the neck.
Assoc Prof Shatwell considered any change in Mr Beatty’s work and leisure activities was not due to the effects of the accident.
Dr James Bodel, orthopaedic surgeon
Dr Bodel initially saw the claimant on 1 March 2021 and provided a report. He diagnosed a soft tissue whiplash associated disorder of the cervical spine, a musculoskeletal injury to the lumbar spine, a rotator cuff pathology in both shoulders, a mallet joint finger deformity in the right little finger and a crush injury to the PIP joint of the left index finger. He reported Mr Beatty was coping reasonably well with his managerial role which he hoped he could continue until retirement.
Dr Bodel assessed the claimant on 17 June 2023 and provided a report dated 19 June 2023.
He reported Mr Beatty still had neck pain and headache, although he noted it had been relieved significantly by the surgery. He noted head down posture or use of the arms overhead aggravates the pain. He reported pain and stiffness in both shoulders, left worse than right, periscapular pain and intermittent left sided lower back pain. He also noted the mallet finger deformity of the right little finger.
On examination Dr Bodel noted reduced range of neck flexion, extension and rotation in all directions. He also reported a restricted range of shoulder movement in each shoulder. He noted tenderness over the rotator cuff and impingement in each shoulder. He reported no restriction of elbow, wrist or hand movement and normal grip strength. He reported clinical signs of persisting radiculopathy of the left upper limb.
Dr Bodel diagnosed a disc rupture at C3/4, C5/6 and C6/7 caused by the accident and rotator cuff pathology in both shoulders as well as persisting signs of radiculopathy.
On the basis further surgery was unlikely to proceed Dr Bodel was hopeful Mr Beatty could continue in his largely managerial role until retirement age.
In a report dated 27 June 2023 Dr Bodel assessed a 43% WPI.
Dr Andrew Porteous, occupational physician
Dr Porteous assessed the claimant at the request of his lawyers and provided a report dated 29 August 2024.
At the time of his assessment Dr Porteous reported Mr Beatty complained of chronic upper thoracic, neck and posterior shoulder pain more prominent on the left than the right. He also reported pain down the left arm and headaches at the end of a workday. He reported mild-to-moderate pain in the lumbar spine, through the left buttock and hip, numbness in the left foot and pain in both great toes of both feet. Mr Beatty reported trouble looking down and rotating his neck. Dr Porteous noted Mr Beatty reported a degree of low mood with his chronic pain and poor sleep.
Dr Porteous opined Mr Beatty is restricted from frequent or constant looking up or down and from constant or repetitive neck rotation. He is restricted from using arms about mid-chest height, from heavy lifting, pushing, pulling or carrying or from working at heights or in confined spaces.
Dr Porteous reported Mr Beatty was concerned about the security of his job given the presence of a new manager and a new Chief Executive Officer (CEO) and whether his employer will continue to support him given his restrictions. Dr Porteous reported by the end of the week Mr Beatty is in pain and spends the weekend recovering to return to work.
Dr Porteous opined that with a supportive employer and where his restrictions are accommodated Mr Beatty is only likely to maintain full time work for the next three to five years and thereafter will have to work part time. He concluded if his employer no longer supports Mr Beatty with his marked pain and restriction he would not be able to cope with able-bodied people in the open labour market and in all likelihood he would thereafter be off work.
Dr Porteous concluded Mr Beatty’s ability to lead a normal life has been significantly impaired by his injuries.
Dr Robin Mitchell, occupational physician
Dr Mitchell assessed the claimant for the insurer and provided a report dated 14 October 2024. Dr Mitchell reported Mr Beatty provided his history in a straightforward and reasonable manner with no indication of embellishment or exaggeration.
Dr Mitchell reported Mr Beatty had constant pain in the neck of approximately an 8/10 level. He has some shooting pains down the back of each arm. He also has pain in the left lower back at a level of approximately 6/10. He has ongoing pain and occasional swelling in the left knee. Any significant physical activity makes his pain symptoms more severe. He noted he is fully independent with respect to his personal activities of daily living.
Dr Mitchell concluded the claimant had widespread well-developed long-standing degenerative changes throughout the cervical spine present for a long time before the accident although he accepted those changes were aggravated by the accident. He also noted pain in the left lower back and left knee of an apparent soft tissue nature. Dr Mitchell noted the prognosis was guarded.
Medical Assessment Certificates
In a certificate dated 26 February 2020 Medical Assessor Drew Dixon certified that the left shoulder surgery repair recommended by Dr Dao and physiotherapy treatment to the left shoulder related to the injury caused by the accident having regard to the records of Mr Bunting of 18 June 2018.
In a certificate dated 27 November 2022 Medical Assessor Shane Moloney certified that radiology, namely a flexion/extension X-ray of the cervical spine and a bone scan were reasonable and necessary in the circumstances and related to the injury caused by the accident. Medical Assessor Moloney reported Mr Beatty had constant pain in the neck which increased shortly after the accident with referral of pain down his upper limbs. He considered the proposed investigations were necessary to determine the origin of the ongoing pain in the cervical spine region.
In a Certificate dated 28 November 2023 a Medical Review Panel determined that a consultation with Dr Mobbs, neurosurgeon on 21 July 2021 was related to the injury caused by the accident and was reasonable and necessary. The Panel found the claimant sustained injury to both shoulders and his cervical spine in the accident.
In a certificate dated 1 December 2023 a Medical Review Panel determined that total disc replacement (TDR) surgery at C3/4 and anterior cervical discectomy and fusion surgery (ACDF) at C5/6 and C6/7 related to the injury caused by the accident and was reasonable and necessary.
The Review Panel concluded the symptoms prior to the accident were minor in respect of the claimant’s neck and shoulders but following the accident there was a major change to those symptoms. Indeed, Medical Assessors Rosenthal and Stubbs concluded the cervical spine injury was initially masked by the left shoulder symptoms and became more prominent once the shoulder condition was addressed (surgery performed by Dr Dao).
THE RELIABILITY OF THE CLAIMANT’S EVIDENCE
I had the opportunity to assess Mr Beatty during the course of the assessment conference. He answered all questions in a straightforward manner with no attempt to embellish his evidence. I formed the view he was an honest, stoic man who has done his utmost to maintain his management role at Northern Beaches Council but who is currently struggling and is now despondent about his future.
THE INJURY SUSTAINED BY THE CLAIMANT
There is no dispute Mr Beatty sustained the following injuries in the accident:
· injury to the head;
· injury to the cervical spine;
· mallet fracture of the right little finger;
· injury to the left shoulder – full thickness tear of the supraspinatus and biceps brachii;
· injury to the right shoulder – cuff tendinosis with partial-thickness tearing and bursitis;
· soft tissue injury to the left wrist;
· injury to the sacroiliac joint;
· soft tissue injury to the lumbar spine;
· soft tissue injury to the left buttock;
· soft tissue injury to the left hip;
· soft tissue injury to the left foot;
· soft tissue injury to the left toe and right toe;
· soft tissue injury to the jaw, and
· surgical scarring to the left arm and shoulder, to the front of the neck and to the back of the neck.
Whilst Mr Beatty had degenerative disc disease in his cervical spine and shoulders and indeed, had undergone chiropractic treatment in the 18 months prior to the injury I accept the findings of the Medical Review Panel that his pre-accident symptoms were minor and the need for cervical spine surgery and surgery to the left shoulder was caused by the accident.
There is a dispute about causation of the crush injury sustained by the claimant to the left PIP joint on 18 December 2019. The insurer submits that slamming a finger in a gate is a commonplace injury and there is no evidence to support the claimant’s contention that it would not have happened if he had been able to move his neck more quickly. This injury is not significant in the scheme of this claim where it settled over a period of three months. However, having regard to my conclusions about the reliability of the claimant’s evidence I am satisfied that the movements of both his neck and shoulders at that time were impeded, meaning he would not have moved quickly to remove his hand, causing his finger to be jammed in the gate.
The insurer also disputes Mr Beatty has sustained post-traumatic stress disorder, depression and/or anxiety as a result of the accident. Whilst there is no diagnosis of a psychological injury from a medical practitioner or psychologist the insurer righty concedes Mr Beatty may have incurred some psychological sequalae. Notwithstanding the lack of formal diagnosis, I accept the evidence of Mr Beatty that he experiences anxiety associated with vehicles, and that he experiences low moods and depressive symptoms having regard to the impact of the accident on every aspect of his day-to-day life, having regard to his constant pain and the lack of significant improvement notwithstanding numerous surgical procedures.
THE ASSESSMENT OF DAMAGES
Non-economic loss
Section 1.4 of the MAI Act defines non-economic loss as including pain and suffering, loss of amenity of life, loss of expectation of life and disfigurement.
The current maximum payable for non-economic loss is $654,000.
The claimant submits an appropriate award of damages for non-economic loss is $400,000.
The insurer submits given the claimant’s age, his employment status, pre-accident medical history and injuries sustained in the accident an appropriate award for non-economic loss is $200,000.
When assessing non-economic loss, I note Mr Beatty has had to endure multiple hospitalisations and surgeries including the following:
· the insertion of an intermedullary pin into the right little finger;
· left shoulder supraspinatus repair and biceps tenodesis;
· cervical anterior C5-7 fusion and total disc replacement at C3/4;
· cervical posterior C5/6 fusion and nerve decompression;
· further surgery to open and clean the wound’
· a further hospital admission for a staph infection and surgery to wash out the wound, and
· a further hospital admission and surgery to debride the wound and remove sutures from earlier procedures;
Mr Beatty is facing the possibility of further surgery. He became noticeably emotional during the assessment conference when discussing the possibility of further surgery, describing the surgeries as horrendous.
Pre-accident he attended the gym three to five times a week, played tennis, enjoyed swimming laps, cycling, skiing, bush and mountain walking, paddleboarding, and travel. Noting he had less than 2% body fat it is clear he was extremely fit.
In his most recent statement Mr Beatty stated he no longer has any social life and finds he is largely confined to home due to his pain. Tellingly he states:
“My life and significant portion of my time has turned into multiple visits to the hospital, physiotherapy, undertaking blood tests, scans, and attending various specialist appointments…”.
Whilst Mr Beatty has been stoic and to date has been able to retain his role as a Manager with Northern Beaches Council I accept he no longer enjoys his employment. He states his role is now largely supervisory and not as satisfying, he can no longer conduct hands on arboreal work and he struggles to complete IT work having regard to the extreme pain he experiences in his neck and left shoulder. Because he finds it necessary to take multiple breaks due to his inability to sit for prolonged periods and because he has difficulty in looking down for prolonged periods even with a sit/stand work station Mr Beatty has difficulty in meeting deadlines at work and his productivity and drive have gone downhill.
In addition, Mr Beatty experiences both pain and anxiety when travelling to and from work, up to 90 minutes each way. On his own observation and having regard to comments from his supervisor he is aware that he is not performing in line with other Managers. Mr Beatty says he finds this degrading, where pre-accident he was known as one of the top performing managers.
Whilst he has not sought treatment for psychological symptoms I accept Mr Beatty has experienced psychological difficulty in coping with his ongoing pain and loss of functional capacity as a result of the accident.
Mr Beatty is now 60 years of age with a life expectancy of 24 years. He has maintained his employment against the odds, with very few absences from work other than those necessary for surgical reasons. Mr Beatty’s ongoing pain and functional restriction has significantly impaired his quality of life for in excess of six years. There is currently no suggestion of any likely amelioration in his cervical spine condition, and indeed, he faces the possibility of further surgical intervention. Notwithstanding his stoicism Mr Beatty’s functional and, in all likelihood his emotional, resilience is significantly impaired. I consider an appropriate award of damages for non-economic loss to be $375,000.
Past economic loss
The claim for past economic loss is on the basis Mr Beatty can no longer perform to his pre-accident standard and has required frequent absences from work by reason of his accident related disabilities.
The claim for economic loss is made in respect of his absences from work with Northern Beaches Council and for the loss of annual performance based salary increases.
Sick and annual leave
The evidence before me suggests that all absences from work have been covered by Mr Beatty’s leave entitlements from Northern Beaches Council.
The question is whether Mr Beatty has any entitlement to recover the value of leave he has utilised for his accident related injuries.
There is no dispute Mr Beatty was totally unfit for work due to his accident related injuries including surgery for the following periods:
(a) 16 June 2018 to 26 June 2018 (7 business days);
(b) 26 July 2020 to 30 October 2020 (69 business days);
(c) 14 November 2022 to 10 January 2023 (39 business days), and
(d) 7 March 2024 to 14 March 2024 (5 business days).
During the assessment conference on 12 November 2024, it became apparent that Mr Beatty had received paid sick leave for his absences from work to date. There was no evidence before me as to the value of the sick leave or confirmation from Northern Beaches Council, that if reimbursed the value of that sick leave, the Council will reinstate Mr Beatty’s sick leave.
I agreed to give the claimant’s legal representative an opportunity to obtain that evidence and for the insurer to provide a response. I made the following directions:
· on or before 26 November 2024 the claimant is to upload to the portal evidence from Northern Beaches Council as to sick leave paid to the claimant referable to the injuries sustained in the accident and confirmation that if reimbursed the value of that sick leave, the Council will reinstate Mr Beatty’s sick leave. The claimant is also given leave to upload to the portal any submissions, if necessary, relevant to that issue.
· On or before 3 December 2024 the insurer is to provide any submissions in response.
On 22 November 2024 the claimant uploaded correspondence from Northern Beaches Council dated 20 November 2024.
The records from Northern Beaches Council show Mr Beatty utilised sick leave during the period 18 June 2018 to 11 April 2024 in the sum of $75,752.65 gross for the following periods:
· 18 to 22 June 2018;
· 16 November 2018;
· 26 April 2019;
· 20 – 24, 27-31 July 2020;
· 3-7, 10 -14, 17-21, 24-28, 31 August 2020;
· 4, 7-11, 14-18 September 2020;
· 6 July 2022;
· 1-4, 7-11, 14-18, 21-15, 28-30 November 2022;
· 5-9, 12-16, 19-22, 28, 30 December 2022;
· 3-6, 9-13, 16-20, 23-25, 27 January 2023;
· 30 January – 1 February 2023;
· 7-10, 13-15 February 2023;
· 7-8, 11-15, 18-22, 25-29 March 2024, and
· 3-5, 8-11 April 2024.
In that correspondence the Council stated it was unable to reinstate leave previously taken by employees.
The Council also confirmed that Mr Beatty did not exhaust his sick leave entitlements each year from 6 June 2018 to date.
Notwithstanding my direction was limited to sick leave the claimant’s lawyers also asked Northern Beaches Council to document all annual leave taken by Mr Beatty from the date of accident to date. The claimant provided further submission dated 4 December 2024 in which it was suggested that annual leave taken by Mr Beatty in the period 18 June 2018 to 15 November 2024 in the sum of $55,951.59 gross was primarily due to accident related injuries and disabilities.
The claimant submitted it was not seriously contended by the insurer that the claimant’s sick and annual leave was not subsumed by reason of his accident related injuries and disabilities where the insurer did not suggest otherwise during cross examination of the claimant. However, the claimant submits the insurer’s position that the claimant having had “the benefit” of sick and annual leave and cannot recover it so he would be doubly compensated is wholly disingenuous.
The claimant submits the insurer is estopped from that contention having regard to the concession made by Meena Singh, Case Manager QBE Australia where she acknowledged the claimant’s leave during the period 20 July 2020 to 30 October 2020 “is related to the accident and to be reimbursed by QBE”. The claimant argues the insurer’s position should not be limited to the period 20 July 2020 to 30 October 2020 but should apply to the various period of sick and annual leave taken by the claimant due to his accident related injuries and disabilities.
The insurer submits the “promise” made by the insurer was clearly conditional on the claimant having the ability to repay his employer for the purpose of obtaining a credit of the accident related sick leave taken. The insurer submits where the employer has confirmed reinstatement of sick leave is not possible there is no agreement which can be honoured. I am not convinced the representation made by Ms Singh was so nuanced where she stated:
“We agree to reimburse the sick leave payment to your client and for your client to, down the track repay his employer directly to obtain a credit of the sick leave taken”.
It seems to me that Ms Singh did not realise reimbursement and re-crediting of sick leave could only occur with the consent of the employer.
Arguably the basis of the claimant’s contention is that the email from Ms Singh created an estoppel by representation. In Kramer v Stone the Court of Appeal cited with approval the statement by Hodgson JA in Sullivan v Sullivan [2006] NSWCA 312 at [85] that:
“Generally, a promise or representation will be sufficiently certain to support an estoppel if it was reasonable for the representee to interpret the representation or promise in a particular way and to act in reliance on that interpretation, thereby suffering detriment if the representor departs from what was represented or promised. Generally, if there is a grey area in what is represented or promised, but it was reasonable for the representee to interpret it as extending at least to the lower limit of the grey area and to act in reliance on it as so understood, I see no reason why the Court should not regard the representation or promise as sufficiently certain up to this lower limit.”[1]
[1] Kramer v Stone [2023] NSWCA 270.
There is no evidence before me to establish that Mr Beatty acted in reliance of the representation made by Ms Singh. Mr Beatty utilised sick leave for his accident related injuries both before and after the period 20 July 2020 to 30 October 2020. In other words, his decision to access his sick leave was not dependent on the representation made by Ms Singh. I am not satisfied the representation made by Ms Singh constitutes an estoppel.
In an alternative to the “estoppel” submission the claimant relies upon the decision of Taylor DCJ in Ghassani v Napier [2017] NSWDC 130 to submit an appropriate buffer be applied to reflect an allowance of $15,000 to $20,000 per annum for the loss of leave.
In Ghassani at [29] Taylor DCJ stated
“…Mr Ghassani gave evidence that this period of work was covered by his sick leave and annual leave. There was no evidence which indicated how much of each type of leave was used, and as there was no evidence that sick leave would be paid out as cash when he left his employment in October 2012, the using up of his sick leave does not result in him suffering any economic loss. I would give Mr Ghassani full credit for any annual leave taken to cover periods of sickness”.
The insurer submits the decision in Ghassani is analogous to the current circumstances where there is no evidence the claimant would be paid out his sick leave or would have it reinstated on payment of the value of that leave. Indeed, the insurer submits on the evidence the opposite would occur.
In Graham v Baker, the High Court held it is necessary for a claimant to prove that the diminution of earning capacity is or may be productive of financial loss.[2] Further the court held there must be set off against a claim for loss of earning capacity any payments received as ordinary wages pursuant to a contractual right such as the right to payment of sick leave.
[2] Graham v Baker (1961) 106 CLR 340; [1962] ALR 331.
Mr Beatty was paid sick leave by his employer for those absences from work and where the Northern Beaches Council is not prepared to reinstate his leave entitlements if paid the value of that sick leave there is no entitlement to recover damages for those absences from work noting they were not productive of financial loss.
In relation to the claim for reimbursement of annual leave the insurer submits there is no evidence the claimant has taken annual leave for any accident related injuries or treatment. Furthermore, this contention was not referenced in the claimant’s schedule of damages dated 3 October 2024 or in the evidence relied upon by the claimant.
There is authority for the proposition that annual leave taken to cover periods of incapacity caused by injury can be the subject of an award of damages. In Jackson v Mazzafero the Court of Appeal held where a claimant with no sick leave left uses annual leave to cover a period of incapacity due to injury the wages paid must be ignored and damages awarded on the assumption that no wages were paid during the period of annual leave.[3] This is on the basis that the sum paid by way of leave was not money paid to the appellant as a result of the accident but because of employment entitlements generally.
[3] Jackson v Mazzafero [2012] NSWCA 170 at [34].
However, I do not accept annual leave taken by Mr Beatty in the period 18 June 2018 to 15 November 2024 was primarily due to his accident related injury where he had not exhausted his sick leave each year. There is no evidence before me to suggest that Mr Beatty utilised annual leave for his accident related injuries rather than for rest and recreation. If Mr Beatty found it necessary to take annual leave by reason of his accident related injuries he would have first exhausted his sick leave entitlements. I do not propose to take into account any claim for annual leave taken since the accident.
Loss of annual performance based salary increases
Mr Beatty claims, whilst he has received award salary increases, he has not received additional annual salary increases rewarded for high performance where as a result of his injuries his work performance has not been in line with the other managers.
The claimant submits his income increased 11.94% in the financial year ended 2018 which included a performance based increase. Noting the accident occurred on 16 June 2018 this was the financial year which bookended the accident. The claimant submits an additional allowance of 6% per annum of the claimant’s annual income should be allowed to take into account the subsequent loss of the performance based increase. The claimant has calculated the loss of the 6% annual increase to be the sum of $80,245.39.
The insurer submits the claim for an additional 6% each year is unsubstantiated and should not be allowed.
The claimant’s salary with Northern Beaches Council is governed by the Local Government (State) Award 2023 and its previous iterations (2017 and 2020).
There is no dispute that in the year ended 30 June 2018 the claimant received a salary increase of 11.94% even though the Local Government (State) Award 2917 only prescribed an increase of 2.35%.
The insurer helpfully provided the following table showing the claimant’s gross annual salary and relevant increases from Northern Beaches Council since the accident:
Financial year ended 30 June
Gross Income
Rate of increase from previous financial year
Rate of increase prescribed by Award
2017
$107,411
2018
$120,240
+11.94%
+2.35%
2019
$125,436
+4.32%
+2.50%
2020
$128,823
+2.70%
+2.50%
2021
$130,681
+1.44%
+1.50%
2022
$133,331
+2.03%
+2.00%
2023
$135,936
+1.95%
+2.00%
2024
$142,707.09
+4.98%
+4.50%
2025
$147,701.84
+3.50%
+3.50%
The claimant has provided a document titled “Performance Development Guideline” dated July 2024 which outlines the performance outcomes designed to identify high performance making an employee eligible for a salary increase. It is apparent that the first iteration of this document was created on 1 September 2018. Where Mr Beatty received a performance based increase in the financial year ended 2018 it is apparent a similar program also existed prior to that date.
The insurer submits in the absence of any evidence from comparable employees showing an ongoing 6% salary rise each year the claimant’s wages should be assessed in accordance with the rate prescribed by the Award.
Whilst it is true there are no comparable wage records to verify payment of the performance based increase to other managers there is evidence to show that the claimant received an over award salary increase in the financial year ended 2018. I also accept the evidence of the claimant that he can no longer undertake all facets of his role, he is not keeping up with changes and is not performing in line with other managers.
Where there is no evidence of an over award payment in any year other the financial year ended 2018 and in the absence of evidence from the Council to verify if any payments were made to other managers, and if so, how much, I do not consider it appropriate to award damages by reference to a 6% loss of annual income. However, where I accept the evidence of the claimant as to the difficulties he has experienced in the workplace since the accident I propose to assess damages for the loss of opportunity to receive a performance based increase over the last six years in the sum of $25,000.
I assess damages for past economic loss in the sum of $25,000.
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.
The claim for future wage loss is defined as follows:
(a) that the claimant whilst able to continue his fulltime employment for the next two years will continue to lose the performance based salary increase calculated on a 6% increase in earnings annually;
(b) that after two years the claimant will be required to reduce his employment to two days a week resulting in a 60% loss of his 2026 expected weekly earnings (including the claimed 6% annual increase each year);
(c) that at about age 65 years Mr Beatty will be unable to continue employment by reason of his injuries, and
(d) that the claimant is concerned for the future of his current position having regard to a recent re-structure and newfound pressure on his performance. In the event, he cannot maintain his current employment he will struggle to obtain employment on the open labour market given his age and his injury related disability.
The insurer submits the claimant’s most likely future circumstances is continued employment in his current role with Northern Beaches Council with his salary governed by the Award. The insurer submits there is no evidence to establish that the claimant will continue to achieve salary increases in excess of the Award or that any failure to achieve above award salary increases is related to the injuries sustained in the accident.
The insurer suggested the high point of the claimant’s claim for future loss would be the sum of $105,196.12 on the basis the claimant is only able to work full time for the next three years and thereafter work 21 hours per week for the remaining four years based on the opinion of Dr Porteous. The insurer submits there should be no allowance for early retirement where there appeared to be agreement between Dr Porteous and Dr Mitchell that the claimant can continue to work until age 67.
However, the insurer submitted there be no allowance for future economic loss but in the interest of compromise suggested a buffer of $50,000 inclusive of loss of superannuation would be appropriate.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR and Husher v Husher (1999) 197 CLR 138, the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in his earning capacity and, if so, whether that loss or diminution will result in economic loss.
I find uninjured Mr Beatty would have continued to work full time as a high performing manager with Northern Beaches Council undertaking all facets of his role including hands on work as an Arborist.
I find that the accident has caused a change in his most likely future circumstances where he will not be able maintain his full time employment as a manager until retirement age. I am satisfied Mr Beatty has sustained a loss or diminution in his earning capacity which will be productive of economic loss.
In his report dated 29 August 2024 Dr Porteous concluded Mr Beatty was only likely to maintain full time work for the next three to five years and thereafter will have to work part time. This prognosis was predicated on a supportive employer.
Dr Porteous also stated:
“It is most likely that if his employer is intolerant with his ongoing marked pain and restriction that he will have difficulty finding work in the work he does and competing in the open labour marked with able bodied persons for jobs and will more likely than not therefore at that point be off work for the foreseeable future through until expected retirement age of 67”.
At the time of his assessment on 10 October 2024 Dr Mitchell considered Mr Beatty had a current capacity for suitable administrative work on a full time basis subject to the following restrictions:
· manage all physical activities below mid chest height and close to the body trunk;
· frequent manual handling actions be limited to 3kg in force with respect to lifting, carrying, pushing and pulling, and
· fixed and awkward head and neck spinal postures should be avoided and frequent posture movement should take place throughout the day.
In a supplementary report dated 5 November 2024 Dr Mitchell expressed the opinion that there was no medical indication that Mr Beatty’s condition will significantly deteriorate such that he would need to reduce his working hours to part time at any point before retirement at age 67.
I also propose to have regard to the recent report of the treating surgeon Dr Huang. On 4 November 2024 he noted Mr Beatty had ongoing neck pain radiating to both upper limbs as well as headaches. Whilst he did not express an opinion as to the claimant’s capacity for work he noted the ongoing symptoms were causing Mr Beatty issues with driving and sitting at a desk. He recommended further investigations. Mr Beatty himself described his difficulties in keeping up at work, his inability to perform in line with the other managers and his concerns about the security of his employment given he has a new boss and there is a proposed change to the work from home policy.
Having regard to the evidence of the claimant I prefer the opinion of Dr Porteous to that of Dr Mitchell. I accept the claimant will at most and subject to the ongoing support of his employer only be able to maintain full time employment for the next three years and thereafter I consider he will be limited to working three days a week.
The claim for past economic loss is made to age 70 years. However, there is no evidence to establish any likelihood of retirement other than at the usual age of 67 years.
The claimant’s current annual salary is $147,701.85 which equates to $2,091.53 net per week.
Noting Mr Beatty is now 60 years of age I assess damages for two days loss of income per week between the ages of 63 and 67 years.
Working three days a week the claimant’s pro-rata salary will be $88,621 gross per annum or $1,336.04 net per week. On these calculations he will sustain a loss of $755.49 net per week for his two days absence from work.
I calculate damages for two days loss of wages per week for four years deferred for three years as follows:
$755.49 x 189.6 (multiplier for 4 years on 5% tables) x 0.864 (multiplier for 3 years on the 5% deferred tables) less 15% for vicissitudes in the sum of $105,196.12.
I assess damages for past loss of superannuation benefits calculated at 11% (as claimed) of the net past wage loss in the sum of $11,571.57.
Additional claims
In Penrith City Council v Parks the Court of Appeal concluded it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine.[4]
[4] Penrith City Council v Parks [2004] NSWCA 201.
I consider it appropriate to award an additional sum of money by way of buffer to compensate Mr Beatty in respect of his sick leave entitlements, the loss of opportunity to receive performance based salary increases and the possibility of early retirement.
Sick leave entitlements
I have found Mr Beatty is not entitled to recover damages for those absences from work where he has received paid sick leave by his employer. However, there may be an entitlement to some damages for using up an entitlement to sick leave.[5] Where it is not alleged Mr Beatty would have an entitlement “to cash” any unused sick leave on termination of his employment he may have an entitlement to recover damages for the loss arising from the chance that he might fall ill in the future and be compelled to take leave without pay.[6]
[5] Graham v Baker (1961) 106 CLR 340; [1962] ALR 331.
[6] Luntz, Assessment of Damages for Personal Injury and Death (LexisNexis, 5th ed, 2021), p 767.
Mr Beatty is currently 60 years of age and at most has a future working life of seven years although it is submitted by the claimant that he is likely to retire early by reason of his accident related disabilities. I note from the correspondence received from Northern Beaches Council that Mr Beatty is entitled to receive sick leave of three weeks or 105 hours per annum and that his sick leave accrues. As of 20 November 2024, Mr Beatty’s sick leave entitlement stood at 2.5 hours, although he will be entitled to receive his yearly entitlement of 105 hours on 5 January 2025.
I note Mr Beatty has utilised sick leave of 154 hours during the period 6 January 2024 to 20 November 2024. Whilst he will be entitled to have his sick leave entitlements topped up as of 5 January 2025, the records provided by Northern Beaches Council suggest since the accident Mr Beatty’s sick leave entitlement is at its lowest level ever, reflective of his absence from work in the current calendar year and his worsening condition.
Accordingly, I consider any buffer should also compensate Mr Beatty for the value of the chance that his sick leave will be inadequate for his future absences from work by reason of his accident related injuries or for the possibility he may be compelled to take leave without pay in the event he suffers a future non-related accident or illness.
Performance based salary increase
I have already concluded I did not consider it appropriate to award damages by reference to a 6% loss of annual income based on high performance. However, accepting the evidence of the claimant as to the difficulties he continues to experience in the workplace due to his accident related injuries I propose to take into account the loss of opportunity to receive future performance based increases when assessing the amount of an additional buffer for economic loss to be awarded in Mr Beatty’s favour.
Early retirement
When assessing the amount of an appropriate buffer I also propose to compensate the claimant for the possibility that he will not be able to maintain employment either with Northern Beaches Council or on the open labour market until age 67. Dr Porteous concluded the claimant would only be able to work until age 67 if his employer is supportive.
It is clear from the evidence of Dr Huang that the claimant has had a less than optimum outcome from his most recent surgery. Critical to his ability to maintain his employment is Mr Beatty’s ability to sit at a desk and to drive, both of which have become increasingly difficult for him. I found the evidence of Mr Beatty to be compelling as to the difficulties he is experiencing in maintaining his current employment. Whilst he has demonstrated his stoic nature and he has had a long tenure with Northern Beaches Council I am satisfied there is a very real likelihood that Mr Beatty will not be able to maintain his employment, particularly if he is placed under pressure by his employer for his failure to keep pace with other managers or is required to attend the office in person more than three days a week.
In assessing the amount of an appropriate buffer, I am mindful of the fact that Mr Beatty currently earns an annual salary exceeding $147,000.
I consider an appropriate buffer to be the sum of $100,000 to take into account the likelihood of early retirement, to compensate Mr Beatty for the loss of chance that his sick leave will be inadequate for his future absences from work by reason of injury or ill-health and for the loss of opportunity to receive future performance based salary increases.
I assess total damages for future loss of earnings including superannuation in the sum of $216,767.69.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the findings set out above:
Non-economic loss $375,000
Past loss of earnings $25,000
Future loss of earnings $216,767.69
TOTAL DAMAGES ASSESSED $616,767.69
COSTS AND DISBURSEMENTS
I refer to the claimant’s schedule of costs and disbursements. I note the costs calculator relied upon by the claimant suggests the hourly rate for both the assessment conference after the first two hours and for conferences is $359.88. However, I note the current rate is only $338 per hour.
Whilst the insurer provided submissions dated 7 November 2024 I note the amounts allowed were subject to indexation on 1 October 2024. Where relevant I propose to allow the current fee.
The insurer conceded an entitlement to six hours of conferences related to the assessment of the claim at $359.88 per hour. I propose to allow six hours of conferences at the current hourly rate of $338 plus GST.
In relation to the cost of representation at the assessment conference I propose to allow an additional hour at $338 plus GST.
The insurer disputed the claim for reimbursement of a report fee paid to Dr Joel Champion of Sydney Spine and Pain dated 24 July 2023 in the sum of $1,375 including GST where the report has not been served or relied upon by the claimant. I do not allow this disbursement.
The insurer disputed the claim for reimbursement of a report fee paid to Mr Dirk Crafford of Kingsford Chiropractic Clinic dated 18 July 2023 in the sum of $154 including GST where the report has not been served or relied upon by the claimant. I do not allow this disbursement.
In relation to medico legal reports, I allow $1660 plus GST for the report of Dr Bodel dated 1 March 2021, $1,800 plus GST for the report of Dr Bodel dated 19 June 2023 and $1,919 plus GST for the report of Dr Porteous dated 29 August 2024 in the total sum of $5,379 plus GST. This is the sum agreed by the insurer.
The insurer notes the claimant has not provided the tax invoice showing payment of the report of Dr Mobbs in the sum of $1,250 inclusive of GST but has only provided a letter dated 30 August 2023 advising the fee payable. Assuming proof of payment of this report is provided the insurer allows a total of $1,965 inclusive of GST for treating specialist reports (comprising the two reports of Dr Mobbs). Whilst I note the insurer’s concern I am satisfied having regard to the letter advising of the fee and the presence of the report that the fee was paid or is payable. Accordingly, I propose to allow the sum of $1,250 for the report of Dr Mobbs dated 19 September 2023.
The insurer accepts the claim of $1,929.56 plus GST for the costs of clinical records.
I otherwise assess the claimant’s costs and disbursements in accordance with the attached Damages and Costs Calculator in the sum of $58,328.51.
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