BHZ v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 523
•20 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | BHZ v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 523 |
| CLAIMANT: | BHZ |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 20 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages; liability admitted; claimant suffered significant psychological and physical injuries including scarring; insurer conceded entitlement to non-economic loss; claim made for past and future economic loss including loss of bonus; insurer disputed any entitlement to economic loss after claimant returned to work; dispute about reasons claimant changed employment; claimant had a loss of capacity to earn that was productive of financial loss as a consequence of his injuries; claimant did not have the capacity to undertake pre-accident work; claimant changed employment as a result of his injuries; Held – psychological injuries materially contributed to termination of employment by one employer; awards made for past and future economic loss including loss of bonus as well as non-economic loss. |
| DETERMINATIONS MADE: | CERTIFICATE 1. Liability for the claim is admitted. 2. In accordance with s 7.36 of the Motor Accident Injuries Act 2017 I assess the amount of damages for this claim as $996,200.61. 3. The insurer is to pay the claimant’s costs and disbursements assessed in the amount of $68,992.28 inclusive of GST. 4. Attached to this certificate are reasons for my assessment. |
STATEMENT OF REASONS
BACKGROUND
BHZ (claimant) was injured in a motor accident at Cremorne on 22 January 2021 (accident). He subsequently made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer). The insurer admitted liability for the claim on 25 October 2022.
The claimant has referred his claim to the Commission for assessment under Div 7.6 of the MAI Act. The insurer has conceded that the claimant is entitled to damages for non-economic loss. He also seeks awards for past and future economic loss.
ASSESSMENT CONFERENCE
The matter proceeded to assessment on 1 August 2024. BHZ gave evidence. No other witnesses were called or required. The parties agreed that the award for s 4.5(1)(d) damages (Fox v Wood) should be $31,840. It was also agreed that the insurer is to have credit for weekly payments of statutory benefits paid to the claimant in the amount of $94,105.29. Directions were made for the provision of submissions clarifying the economic loss claim, and the matter was stood over to 22 August 2024 for oral submissions.
Oral submissions were heard on 22 August 2024 by MS Teams. Issues arose at that time with respect to matters relating to Dr Whetton’s report of 3 July 2024 and the Local Court proceedings. Directions were made for further brief written submissions addressing those matters.
EVIDENCE
The parties provided a joint bundle of evidence relied on for the purposes of the assessment. In addition to the joint bundle, the claimant was given leave to rely on:
(a) an email from BJS dated 1 August 2024 with attachments;
(b) the cover page for bank statements for the period 29 March 2020 to 28 September 2020 and pages 36 of 69 of the statement, and
(c) the cover page for bank statements for the period 30 March 2021 to 29 September 2021 and pages 54 of 83 of the statement.
The insurer was given leave to rely on two affidavits sworn by BHZ in Local Court proceedings dated 12 October 2023 and 29 January 2024.
INJURY FINDINGS
There is no dispute, and I find, that as a result of the accident the claimant suffered the following injuries:
(a) right distal radius fracture (right wrist);
(b) comminuted right clavicular fracture (right shoulder);
(c) left radial styloid and triquetral fracture (left wrist);
(d) right hallux fracture of the big toe;
(e) exhaust burn to the left calf;
(f) soft tissue injury to the left thigh;
(g) three fractured left ribs;
(h) scarring of the right shoulder, right forearm and left calf;
(i) post-traumatic stress disorder, and
(j) major depressive disorder.
These findings are supported by the medical evidence that includes (but is not limited to) the Royal North Shore Hospital records,[1] the radiological reports, and the opinions of Drs Gothelf, Khan and Whetton.
[1] For example Royal North Shore Hospital Discharge Summary dated 29 January 2021.
I accept the claimant’s evidence that he increased alcohol consumption as a way to deal with his psychological symptoms and Dr Khan’s opinion that the claimant developed an alcohol use disorder as a result of the accident. I find that the alcohol use disorder has now resolved, the claimant having made changes to the level of alcohol he consumes.
LOSS OF CAPACITY
Claimant’s evidence
The claimant provided two statements and gave oral evidence at the assessment. In his first statement of 21 January 2024, the claimant provided details of his employment history. Annexed to the statement is the claimant’s CV, which contains details of his professional experience including his employers, periods of employment, and a description of the roles in which he has worked. There has been no suggestion that the contents of the CV are inaccurate, or cannot be relied on for some other reason.
In the decade before he left BJS, the claimant had worked for two employers; BJZ (November 2011 – April 2017) and BJS (May 2017 – November 2021). Since March 1993, he has consistently been employed, with no periods of unemployment. Further details of the claimant’s pre-accident employment history are discussed at [5]-[11] of his statement.
At BJS the claimant managed a portfolio of 5,000 clients, generated significant sales revenue (in the order of $1.6B), and had approximately 10 direct and 50-60 indirect reports. His direct reports included project managers, analysists, regional sales managers, and key account managers. Indirect reports included “field sales reps” and “call centre reps”. He undertook a significant amount of travel, often being away from home a number of nights a week. He engaged with large multi-national companies, government representatives, and legislative bodies.
Following the accident he was off work for approximately 4 ½ months, returning to work initially four hours a day two days a week, and gradually building up to full time hours.
On his return to work, the claimant found that he was not the same as he was prior to the accident. He explained that he had lost confidence, and no longer had the “toughness” and resilience that are essential in a senior management role such as he held at BJS. He considered that he had become less effective in his role.
In his oral evidence, the claimant explained that when he returned to work he thought he was “out of practice”. He described attending meetings and having panic attacks. He would get a “flush of blood”, his ears would go red, he would forget what he was talking about and the name of the person with whom he was talking. He described “locking up”, and that his “second” or the other senior in the room had to step in and help. He perceived that he was not “hitting the mark”, and that his business pitches in meetings were not free flowing. He described having the “yips” and not having his “mojo”. In other words, he failed to perform at critical moments. He continued to experience these problems up to the time he left BJS.
The claimant recalled a lunch with a senior executive at BJS, after he returned to full time work, at which he says it was made clear to him that the company no longer believed he could continue in his pre-accident role, and that they were looking to find “something else” for him. He was concerned about this as he enjoyed his role at BJS and didn’t really want to work in another role in the company. He was informed that a deterioration in his performance had been observed, and that he had a “very limited future at the company”. He says he “took the hint”; when he was approached by a friend about joining BLY, a home delivery service, in a general manager role, he agreed to take the position. He continued in that role for seven months.
The claimant explained that BLY was a different business to BJS. Because it was a smaller business, he thought he would be able to “get [his] arms around it better”. He agreed that it was an executive role that carried with it a lot of responsibility. Despite the different titles, he described the role as the same type of role he was performing at BJS with a smaller company. The claimant described his move to BLY as “a sideways one at best”. He explained that while the salary was higher than at BJS, he was on a fixed incentive of $20,000. He thought that the move was a “step down” because BLY was a smaller company.
In his oral evidence the claimant explained that he had a friendship with the owner of BLY. He gave evidence that the role involved client meetings, team meetings, and work associated with the operations and growth of the business. He described experiencing difficulties while employed at BLY, stating that his performance was not where he believed it should have been. He said that was also the opinion of his friend who owned the business.
The claimant agreed that one of the reasons he moved to BLY was that he wanted a new challenge, but said that reason wouldn’t be in his “top five”. He thought that things at BJS were “moving against [him]”. The move to BLY was in response to this.
The claimant explained that while his general health at BLY was good, he was unable to cope with the demands of the role, and was unable to perform the role to the standard required. He struggled to achieve the targets that were set for him. He stated that “he was no longer the same person”. His evidence was that at the time he didn’t understand why because he lacked insight into the psychological effects the accident had on him.
The claimant was questioned about a response received from BLY to questions asked by the insurer’s solicitor.[2] The correspondence states that there were no performance issues while the claimant was employed by BLY. He disputed that his performance at BLY was good, and gave evidence that the CEO told him he was glad he was moving on, because they weren’t sure “how he was fitting in.” He did not agree that he performed his duties at BLY in an “optimal way”. While he agreed that he chose to resign, he disputed that his resignation had nothing to do with the accident. The claimant’s evidence was that he was not performing, that he wasn’t doing the job he was employed to do, and that he sought alternative employment because his performance was adversely affecting his friendship with the owners of the business. In short, his evidence was that the role was not working out, and he “needed to move on”.
[2] Correspondence dated 7 February 2023 responded to on 1 March 2023.
The claimant gave evidence that when he was approached about a role at BKN by a recruiter in about May 2022 he decided to join that company to “preserve the friendship” he had with the operator of BLY. He began at BKN in June 2022 as Chief Operating Officer. He agreed that one of the reasons he moved to BKN was that it was his “dream job”, and that he saw it as a great opportunity. He gave evidence that the move to BKN solved two problems; he “wasn’t doing the right thing at BLY” and he wanted to “go over there”.
He described BKN as being in a different industry; security and events as opposed to logistics. He thought his core skills were transferable. The role involved him dealing with clients, together with operational matters.
The claimant’s role at BKN was terminated less than a year after he started. He described BKN as having a poor culture, and said he was not able to manage the complex circumstances tht arose at BKN. At [16] of his 14 July 2024 statement the claimant described an incident in November 2022. At [17] he described the circumstances surrounding the termination of his employment at BKN. He agreed in questioning that the company was “toxic”. His evidence was that it was a “very stressful environment” and that he believed he would have handled the environment better prior to the accident. While employed at BKN he experienced panic attacks, one of which required him to “step out of the room”.
After his employment at BKN was terminated, he was unemployed for six months before being offered a role at BKR. He sought work during this six month period, and was not successful gaining employment until the opportunity to work at BKR arose through personal connections.
The claimant’s role at BKR is classified as a “Business Development Officer”, a role he described as being at a lower level to his prior senior managerial roles. He continues to work at BKR in the same role. While his title is “Divisional Manager- Business Development”, the claimant’s evidence is that in reality he is effectively a “glorified sales representative”, a much lower role than he has had for many years. In this role, for the first time in 25 years, he does not have any direct reports. He has a single client, and has not been able to close a new business opportunity. He has no operational function or involvement. The role is “just sales”.
The claimant’s evidence is that he continues to suffer panic attacks, becomes distressed and unable to function when the circumstances of the accident come back to his memory. This occurs frequently, at least once a day. His sleep is disrupted, and this makes him irritable, which further adversely affects his performance at work. He also becomes angry.
The claimant provided details of his psychological treatment, which he did not initially find helpful. He described trying to alleviate his problems with alcohol, and said he became “quite a heavy drinker” for a period of time. In January 2023 he realised he needed to get on top of his drinking, and made some lifestyle changes; he took up running and stopped drinking to excess. He began seeing a psychologist again in early 2023. While he has found this treatment helpful, he continues to experience psychological symptoms and a loss of confidence. The claimant stated that he is concerned about his future, and while he has not given up on returning to senior executive roles, he does not think he will be able to get back to that level. He has not been successful securing more senior positions. He now finds the interview process daunting, and does not believe he gives a good account of himself. These were not problems he experienced prior to the accident.
The claimant’s evidence was that being in a role that did not involve managing people was significantly less stressful. He did not agree that irrespective of his involvement in the accident he was capable of performing his role at BLY without difficulty. He also disagreed that he could have continued performing his role at BJS if he wished. He disagreed that he was coping “quite well” in his current role.
Correspondence from BKR to the claimant dated 1 April 2024 records that his salary had increased to $18,883 a month from 1 April 2024. I have considered the “key responsibilities and accountabilities”, “main tasks” and “desired skills and experience” outlined in that document.
The claimant described the bonus structure at BJS. The amount of the bonus awarded depended on both the performance of the business and personal performance. He agreed that the bonus would vary depending on these factors. In 2020 for example the business did not achieve all the set measures and the amount of the bonus was reduced.
Affidavits sworn by the claimant in the Local Court proceedings are in evidence. The affidavit sworn on 12 October 2023 contains details of the claimant’s employment with BKN. It addresses a number of events that occurred during the course of his employment, and the circumstances that gave rise to the termination of his employment. From [19]-[21] the affidavit addresses attempts the claimant made to find alternative employment after his employment at BKN was terminated. There is no mention in the affidavit to any accident related issues, injuries, or symptoms.
Annexed to the affidavit is a “letter of offer of employment” from BKN dated 2 May 2022. The offer includes a document described as an “employment agreement”. The agreement contains details of the work location, hours, duties, and leave entitlements. There are also terms related to confidentiality, restraint, and termination. The schedule attached to the employment agreement records that the claimant’s job title was “Chief Operating Officer”, and includes details of his hours of work and salary. It is also recorded that there was a short term incentive opportunity (bonus) of 40%, that was the subject of a separate agreement.
In an affidavit sworn on 29 January 2024, the claimant also addresses conversations referred to in the affidavits of other witnesses in the proceedings, and describes events that took place when he was employed at BKN. At [7] he describes a situation in which he became frustrated, “need[ing] a minute”, and walking out of the room. At [22] he described believing when he started at BKN that he “had landed [his] dream job”. He described being engaged and enthusiastic. He denies saying things attributed to him in the affidavits of various witnesses. Again, there is no mention in the affidavit to any accident related issues, injuries, or symptoms.
Medical evidence
In a report dated 4 May 2023, Dr Gothelf took a history of pre-accident thoracic fractures when the claimant was 32. The fractures had healed and there was no residual pain. He recorded that the claimant sustained a number of injuries in the accident, including a right clavicle fracture, right distal radius and ulnar fractures, left radial triquetral/styloid fracture and a fracture of his right great toe. His examination of the claimant demonstrated a slightly reduced range of right shoulder motion, together with a decreased range of motion and discomfort in the right wrist. The doctor recorded that the claimant “tolerates symptoms while he works”, and struggles to perform heavy tasks and lifting above shoulder level. There was, in the doctor’s opinion, no evidence of a pre-existing or subsequent injury or condition which has contributed to the claimant’s current disabilities.
In Dr Gothelf’s opinion, the claimant’s prognosis was guarded. He will likely be able to continue full duties at work. He described the claimant’s pre-accident work as “a desk job”. The time he had off after the accident was entirely related to the injuries he sustained in the accident. From a physical perspective there were no issues with his “handling of the work” at BKN.
Dr Khan, psychiatrist, reported on 30 January 2024. The doctor recorded that as a result of the accident the claimant experienced deterioration in his mental state characterised by nightmares, flashbacks, distressing memories about the accident, physical and emotional symptoms of anxiety and panic, hypervigilance particularly when he is a passenger in a vehicle, heightened startle reaction, irritability, agitation, low mood, social withdrawal, reduced motivation and energy, escalating alcohol use, sleep disturbance, impaired attention, concentration, memory, and self-confidence. He continued to experience pervasive symptoms of trauma, depression, and anxiety, which negatively affected his social and occupational functioning.
Dr Khan recorded that the claimant:
“…had been able to return to employment and sustain employment for the most part since the subject accident; however, he still remained distractible with his focus affecting his ability to function in more skilled employment positions. His current employment position is considered to be less skilled than his pre-injury employment position. [The claimant’s] chronic pain issues perpetuated his mental health difficulties and served as a constant reminder of his traumatic accident.”
The doctor diagnosed post-traumatic stress disorder, major depressive disorder, and alcohol use disorder. In his opinion, the claimant’s prognosis was guarded: he continues to experience enduring symptoms of trauma, depression and anxiety, which affect his day-to-day functioning and have affected his ability to return to employment at his pre-injury level. In Dr Khan’s opinion, the claimant’s prognosis for returning to the very high executive level of functioning and responsibilities he held at BJS prior to the accident is guarded. This is due to the ongoing impact of the psychological injuries on his mood regulation, motivation, energy, sleep patterns, attention, concentration, memory, ability to tolerate stress and pressure, coping mechanisms with the vulnerability to alcohol addiction, self-confidence, self-esteem and trust in interpersonal relationships.
Dr Khan expressed the opinion that the claimant does not have any realistic prospect of ever returning to a senior role, such as he had at BJS, in the future, and that he:
“..is now effectively working at the maximum of his post-accident capacity. In order for [the claimant] to obtain and sustain employment at his pre-accident capacity, he requires an intact mental state, intact cognition, intact ability to tolerate stress and pressure, intact coping mechanisms, intact self-confidence and intact confidence in interpersonal relationships. The subject accident has eroded his functioning in these domain and has prevented him from returning to his pre-accident capacity of employment since the date of the accident to date with this incapacity likely to persist for the foreseeable future.”
Dr Whetton, psychiatrist, provided two reports at the request of the insurer. In his first report the doctor recorded that there was a prior history of depression over a decade ago, and from which the claimant recovered. The psychological impact the accident has had on the claimant included vivid flashbacks, reliving experiences of the accident lying in the middle of the road. He described episodes of panic and nightmares regarding the accident or other potentially traumatic situations. When a passenger in a car, the claimant said he is highly anxious, and this leads to problems. In an Uber, he puts on headphones and keeps his head down trying to distract himself from the way that he feels. These are triggers for the re-emergence of dissociative flashbacks. The claimant reported that his mood has been depressed and anxious, he has been self-critical, and his alcohol intake increased dramatically after about four months in an effort to cope with his feelings. Whereas he had previously been a social drinker, the claimant reported that every day he was consuming up to three to four bottles of wine and this persisted until January 2022. He also said that when he returned to the hospital for follow-ups and treatment, the smell of the hospital would set off anxiety in him, trigger flashbacks, and made it hard to attend.
Dr Whetton recorded details of the claimant’s treatment, including difficulties he experienced obtaining appointments with a psychologist and psychiatrist. The claimant reported he was struggling to cope with the work after he returned full time. His alcohol intake increased at that time. He described episodes of panic in meetings and reached a point where a senior person commented to him about his performance, and he left the company in November 2021. He then obtained a general managerial role with increased pay at another company (BLY). Initially, he said the work went well and he had stopped drinking; however, he was continuing to struggle with anxiety and panic and losing confidence and concentration. The claimant reported that in meetings, which had always been his "theatre", he was not coping. He left that company and joined BKN. He said that he was trying to find the right fit for the way that he was and with his reduced abilities. He was not able to manage the role, was terminated, and there were court proceedings in relation to the termination. The claimant gave a history that he was then unemployed for about six months before joining BKR in October 2023 as a sales representative, a significant step down from his previous roles. He said he is managing it in a satisfactory way, and continued to look for more suitable roles.
The claimant reported that symptoms of flashbacks and nightmares continued. There was continued anxiety and episodes of panic. His sleep was disturbed with pain, discomfort and worrying thoughts. His mood is depressed. The doctor diagnosed post- traumatic stress disorder and continuing major depressive disorder. These conditions have impacted on his ability to function. Psychological treatment appeared to have been of limited benefit. The most important treatment has been from his general practitioner with the more recent prescription of Zoloft, which has helped to an extent with his depression of mood and what he describes as "explosiveness".
In the doctor’s opinion, the claimant has significant ongoing symptoms of post-traumatic stress disorder and depression. Treatment had been suboptimal. The prognosis was guarded. The claimant was working full time in a less demanding role and “copes with this at present”. Whether he will return to his previous higher level roles was uncertain. The claimant’s past earning capacity was very high. In Dr Whetton’s opinion, the claimant has suffered significant diminution in this. An attempt to return to it was not successful, and subsequent employment with BLY and BKN had not been able to be continued. His role at BKR was full time but at a reduced level.
The doctor stated that the impact on the claimant’s capacity has been materially caused by the accident and not by previous or subsequent conditions. His current capacity for employment was restricted by his psychiatric state resulting from the accident. The range of duties he can perform, and the hours are similar to what he would have performed; however, the level of intensity and responsibility are diminished. His capacity for the future is more likely than not to remain at his current level.
Dr Whetton considered that it was unlikely the claimant would progress to the level of his pre-existing work roles, such as at BJS. He is currently fit for full-time hours, and this is likely to continue until retirement age. In the doctor’s opinion, the history was of a very successful hardworking man, whose life has been altered in a major and persistent way since the accident.
Dr Whetton provided a second report dated 3 July 2024 in which he responded to a series of questions asked by the insurer’s solicitor. The doctor was provided with a number of documents that are identified in his report, and include material from the claimant’s employers and the Local Court proceedings.
Dr Whetton notes the allegation made by BKN, including that the claimant made inappropriate comments to colleagues and was critical and disparaging of the executive team. In the doctor’s opinion:
“From the history which was provided by [the claimant], there appeared to have been no previous history of this type of behaviour which was presumably out of character and most likely related to the psychiatric state which had been identified in him.”
The doctor stated that:
“…it appears that [the claimant] has been performing successfully in this role with no injuries, accidents or complaints whilst employed by BKR at any time and beyond that leading to the awarding of a bonus. It appears that the ability of [the claimant] is now that of being able to complete a successful high level role as Divisional Manager Business Development at BKR on a full-time basis.”
The report records the doctor’s responses to a series of questions he was asked as follows:
“1) Whether the contemporaneous evidence causes you to alter your opinion with regards to the following:
(i) Whether the Claimant’s psychiatric condition has ‘derailed his successful professional life’, noting that following the accident, he has on two occasions purposely changed his employment to an alternative role with increased renumeration [sic].
With the further evidence provided of his now successful role with BKR, being at least equivalent to his earlier role with BJS, it appears that his successful professional life has now resumed.
(ii) Whether the Claimant’s psychiatric condition caused or contributed to him seeking alternative employment with greater renumeration [sic] on two occasions subsequent to the accident.
Of particular note is his employment with BKN Group where his behaviour was out of character with his reported earlier behaviour and out of character with what would be considered appropriate for a person in a high level professional role. It appears more likely than not that his psychiatric state did contribute to the lack of success with his employment with BKN Group. It appears now that the reported successful employment with BKR indicates a return to the previous high level of functioning of [the claimant].
(iii) Whether the Claimant has suffered a ‘significant diminution’ in his past earning capacity by reason of his psychiatric condition, noting that he has in [sic] successfully found alternative higher paying executive roles with each change of role.
Apart from the failure of his employment at BKN Group, he appears to be now successfully employed and as is noted that his earning capacity has been successfully increased with the changes in position.
(iv) Whether the Claimant’s alleged psychiatric symptoms do in fact impact his level of intensity and responsibility, noting he is currently working as a Division/Senior Manager - Business Development at BKR earning income consistent with his earnings at BJS.
With his history of successful employment at BKR, it is unlikely that any psychiatric symptoms are impacting on his ability to work at his expected high level and achieve the earning income consistent with his earnings at BJS.
(v) Whether the Claimant’s current capacity for employment is restricted and/or limited as a result of the psychiatric injuries caused or materially contributed to by the subject accident, noting that his current employer has confirmed:
(A) There are no employment duties the Claimant has difficulty performing.
(B) There are no issues with the performance of his employment duties.
(C) There are no issues with the Claimant’s general health, attendance and relationship with other employees.
(D) There have been no absences from work since the commencement of his employment.
(E) There has also been no injuries, accidents or complaints whilst employed with BKR at any time.
(F) The Claimant remains employed on a full-time basis and is performing well in his current role.
(G) The Claimant qualified for a bonus in the first 8 months of his employment.
Given his successful work to date with BKR and the allocation of the bonus payments as reward for his work, [the claimant] is considered to have full capacity for employment with no restrictions as a result of the psychiatric injuries related to the subject accident.”
The doctor concluded by saying that it:
“…appears that [the claimant] has recovered well from any psychiatric impact on his ability to work at his high level and the evidence of his success in his new position with BKR supporting this”.
I will return to the opinions of Drs Khan and Whetton later in these reasons.
The session notes of Lydia Ghaly, psychologist, are in evidence. The notes relate to two sessions of treatment, one in March and the other in April 2021. The notes record reports by the claimant of anxiety triggers, an anxiety attack, and pain. On 20 April 2021 it was recorded that he started to drink three bottles of wine.
In a report dated 20 February 2024, Gido Schmid, psychologist, confirmed that the claimant had been referred to him for treatment of anxiety and depressive symptoms. Problems with employment were reported by the claimant. His mood had improved. During his last session in September 2023 the claimant recorded on a DASS 21 normal levels for stress and depression.
In his first statement, the claimant confirmed that he began seeing another psychologist, Ms Kovari, in October 2023, that he saw her about once a fortnight, and had found her to be very helpful. He states that the psychologist was not willing to provide a report as “that is the policy of their centre”.
I have considered the rehabilitation reports, the reports of Dr Isaacs, orthopaedic surgeon, and the reports of Deepthi Nooli, physiotherapist.
Clinical notes from Wolli Creek Family Practice are in evidence. An entry on 6 February 2021 refers to a “panic attack”, and records that the claimant “would like to talk with someone for counselling”. On 13 March 2021 it was recorded that he had “fear of loosing [sic] the job”, and was “very emotional…lost friend 2 days ago in car accident”. It is also recorded that he had missed an appointment with a psychologist. On 23 March 2021 it was recorded that the claimant was on a “mentalplan”, that he was still struggling with emotions after the loss of his friend, “worries to loose [sic] the job”, and was distressed with pain “on and off”. On 29 March 2021 it was recorded that he had seen a psychologist and had “rebooked for May”. On 21 May 2021 the notes record “mood is better, has stopped seeing psychologist ..and feels ok now ...no need for further sessions”. On 5 June 2021 a note records that “by the time he finishes work he is tired”. On 12 July 2021 it was recorded that the claimant was “well…doing ok…has been working full time”. There is an entry in similar terms on 28 September 2021. On 9 March 2023 it was recorded that the claimant had been “feeling down, depressed on and off for 10 years, would like Psychiatrist review”. It is recorded that he had cut down his alcohol intake, that he believed that he “[has] some ADHD symptoms, noted by his colleague., like poor concentration”. The doctor also recorded “has changed jobs as felt they dealt badly with his injury”. Further that he had “not been treated for depression in the past or had any meds or seen psychologist, only during his injury/brief”. A note dated 8 May 2023 records “stress++was away for 2 weeks as been fired from work due to unknown reasons ?performance”.
Records from Arncliffe Family Doctors include progress notes. A note on 9 June 2021 refers to “physical and mental stress” following a motor bike accident. A note on 19 April 2023 refers to a “history of anxiety/depression”. Anti-depressant medication was discussed. A mental health care plan was produced. On 6 February 2024 a mental health review was undertaken. The claimant’s sleep, appetite and concentration were “ok”. There is reference to a referral to a psychologist to “get 10 sessions for this calnder [sic] yr”. A mental health care plan was completed on 19 April 2023. The plan records that the presenting issues are “anxious, depressed mood”. The claimant reported being “stressed lately”, that he had been sacked from work, and his sleep, appetite and concentration were “all affected”.
Other evidence
The BJS job description dated 14 March 2017 describes the claimant’s role as “Head of business Partnerships”. The letter dated 26 March 2019 records that he was promoted to “Head of Sales and Business Partnerships” effective from 25 February 2019. An email from BJS dated 1 August 2024 records that his STI[3] target was 20% of his TEC.[4] It is stated that his financial year 2021 bonus of $61,964 was “pro rata” for the period he was on leave from 25 January 2021 to 30 April 2021. His full year outcome had he not been on leave would have been $84,497 gross. Attached to the email are “end of Year Performance and Pay Outcomes for the 2020 and 2021 years”. The claimant’s resignation is dated 3 August 2021. Among other things, the claimant thanked the General Manager to whom the resignation is addressed for his support through his recovery from injury and guidance as he returned to work. A workflow document records “yes” next to the question “Ok to Rehire”. BJS provided information about the claimant’s employment in response to a request from the insurer’s solicitors dated 7 February 2023.
[3] Short Term Incentive – bonus.
[4] Total Employment Cost.
Documents from BLY include an email from the “CFO” dated 1 March 2023. The email responds to a series of questions asked by the insurer’s solicitors in correspondence dated 7 February 2023. The email records that the claimant’s net weekly income was $3,417.62. It is stated that there were no performance issues related to his duties, there were no issues with his relationship with other employees, and that his role was expected to be long term. The claimant’s employment agreement with BLY deals with general matters including duties, hours of work, remuneration, termination, and confidentiality. Schedule A to the document records that his job title was “General Manager RDS”, confirms his remuneration, including bonus of up to $20,000 annually, and notice periods. Schedule B deals with commission.
Documents from BKN include a letter to the insurer’s solicitor from Ms Ison of BKN dated 20 March 2023. In the letter it is confirmed that the claimant commenced employment on 13 June 2022 as the Chief Operating Officer. His net weekly earnings were $3,621.23. In response to the question “Any performance issues”, “No” is recorded. This response is difficult to reconcile with the fact that the claimant’s employment with BKN was terminated without notice. It is also difficult to reconcile with the matters referred to in the affidavit of Ms Ison sworn 13 December 2023, in particular the matters with respect to which she gives evidence at [24] and [25] of the affidavit.
An BKN employment agreement addresses matters such as the claimant’s duties, hours of work, remuneration, leave, confidentiality, and termination. The schedule to the agreement confirms the claimant’s title, salary, commencement date (13 June 2022), and notice period on termination.
A statement of claim filed in the Local Court relates to proceedings brought by the claimant against BKN. The underlying cause of action pleaded is breach of contract. The remedy sought is damages for the breach measured by reference to three months’ salary, the claimant not having been given notice in accordance with the terms of his contract of employment. The affidavit of Ms Ison sworn on 13 December 2023 includes background information about BKN, examples of what are described as the claimant’s “inappropriate conduct”, and a reply to the claimant’s affidavit. The annexures include the employment agreement, the company code of conduct, and various policies. There is also an amended defence filed by BKN on 15 December 2023. The defence contains various admissions, denials, and particulars of alleged conduct on the part of the claimant relevant to those proceedings.
By email dated 20 June 2024, BKR provided a response to various questions asked by the insurer’s solicitors about the claimant’s employment. It is recorded that the claimant commenced employment on 16 October 2023 as “Divisional Manager-Buisness Development”, earning $14,357 net a week. This amount is not correct. It is stated that subject to the financial performance of the company, the claimant may be entitled to a bonus of 15% of his annual salary. Questions about difficulties performing his work are answered “no” as are questions about performance issues relating to health and attendance, and his relationship with other employees.
There is an offer of employment from BKR dated 3 October 2023 that contains various terms of employment, and a description of his duties. In a letter dated 1 April 2024 it is confirmed that the claimant’s salary had increased.
Submissions
The claimant’s case is that he has an ongoing loss of capacity to earn that is and will be productive of financial loss as a result of his accident caused physical and psychiatric injuries. He argues that there are subtle but significant differences between the work he could perform before the accident and the work he is now able to perform.
The insurer’s case is that there is no ongoing loss of capacity that is productive of financial loss. The insurer argues that the claimant’s decision to leave BJS was not related to the injuries he sustained in the accident, and was a voluntary move to pursue a higher paying role. In the insurer’s submission, the claimant’s resignation from BLY and move to BKN was not related to his accident caused injuries.
The insurer disputes that the termination of the claimant’s employment at BKN was in any way related to the injuries sustained in the accident.
The insurer argues that Dr Khan did not have a complete history and this diminishes the weight that ought be given to his opinion. In this regard, the insurer submits that because Dr Khan was not provided with the records subsequently provided to Dr Whetton, key aspects of the history relied upon by the doctor for the purposes of his report are incomplete and, on one view, wrong. For the same reasons, there are said to be problems with Dr Whetton’s first report. The insurer expanded on this submission in its written submissions dated 29 August 2024.
In the insurer’s submission, the opinion expressed by Dr Whetton in his second report should be preferred as the doctor had access to a range of material that was not available to Dr Khan. It is submitted that neither Dr Khan, nor Dr Whetton when he produced his first report, had available to them, and therefore had no regard to, the extensive employment records listed in Dr Whetton’s further report dated 3 July 2024. The insurer submits that the history recorded by Dr Khan that the claimant needed to leave his employment at BJS within three months as he was not coping was not correct. It is submitted that Dr Khan and Dr Whetton were not aware of the claimant’s performance at BLY or the fact that he left there to take up his “dream job” at BKN, which also involved a change of industry. Further, it is submitted, Dr Khan has assumed incorrectly that the claimant was terminated by BKN due to its loss of faith in him when the claimant’s affidavit evidence makes it plain that the work environment was toxic and that the claimant contends BKN acted unlawfully by terminating his employment without cause. Nor were Dr Khan and Dr Whetton aware that the claimant applied for multiple general manager roles as recently as September 2023.
The insurer argues that given the nature and extent of the employment related documents
Dr Whetton reviewed for the purposes of his supplementary report, the advantage enjoyed by him is substantial. There was, it is argued, ample and compelling reason for him to change his opinion given the universal effect of the further documents. Further, it is submitted, his reasoning process is exposed; the doctor first reviews the further documents under “DOCUMENTATION REVIEWED”, then sets out the relevant matters to emerge from them under “HISTORY”.
In the insurer’s submission, irrespective of any nuanced difference between the BKR role and any other roles held by the claimant, Dr Whetton’s description of the claimant being able to complete a “high level role” is a fair characterisation of the claimant’s role at BKR. The insurer submits that the claimant’s job description makes it plain that the role is high level. The email from BKR indicates there are no performance issues and the claimant will qualify for a bonus.
The insurer argues that while there has been criticism of some of Dr Whetton’s responses at paragraph [1] of his supplementary report, this criticism involves “obvious cherry-picking”. Further, the insurer submits that at paragraph [2] Dr Whetton was asked an open question about any other comments he wished to make. It is here, the insurer submits, that the gravamen of his altered opinion is found.
In the insurer’s submission, Dr Whetton’s opinion is “plainly based in large part on the documentation reviewed by him”. It is, the insurer argues, “hardly surprising” that such documentation caused him to change his view. More importantly, there was an overwhelmingly “fair climate” for him to reach such an opinion. It is also submitted that it was open to the claimant to send the further employment related documents to Dr Khan for comment. That this was not done “is to the claimant’s detriment”.
Findings
The impact of the claimant’s injuries
I accept the claimant’s evidence that before the accident he was fit and active without any health problems or medical conditions that compromised his capacity to earn.
I find that the claimant experiences ongoing pain in, and has not regained the full use of, his right shoulder and right wrist. He cannot move his right hand in the same range of motion, and cannot lift anything heavy using his right hand. Dr Gothelf reported that physical examination revealed a decreased range of motion in the right wrist and right shoulder, and recorded that the claimant struggles performing heavy tasks and lifting above shoulder level. In the doctor’s opinion the claimant had a guarded prognosis.
There is no dispute that the claimant suffers from post-traumatic stress disorder and major depressive disorder. There is no suggestion by medical practitioners who have examined him for medico-legal purposes that the symptoms he has reported are not genuine.
I accept the claimant’s evidence that he continues to experience panic attacks, that his sleep is disrupted, he has difficulty concentrating, and is irritable. I also accept his evidence that his confidence has been adversely affected, and that he does not have the toughness and resilience he possessed prior to the accident. These symptoms and limitations are directly attributable to the claimant’s accident caused psychological injuries, impact on his ability to function in the workplace, and give rise to a loss of capacity to earn.
I accept the claimant’s evidence that while the anti-depressant medication he takes has resulted in him being calmer, and “not so reactive to stressful situations”, the medication makes him very tired, particularly in the afternoon, and that he forgets client’s names, has lost his place in presentations, and has forgotten deadlines. The tiredness and forgetfulness the claimant experiences also impact on his ability to function in the workplace, and give rise to a loss of capacity to earn.
In short, the claimant’s accident caused physical injuries, and associated pain, together with his accident caused psychological injuries give rise to a loss of capacity to earn.
The claimant’s post-accident work
I accept the claimant’s evidence about the psychological symptoms he experienced when he returned to work at BJS, and that these symptoms adversely impacted his performance. I accept that the claimant was told by a senior colleague that the deterioration in his performance had been observed, and that he had a limited future at the company.
The claimant had been employed at BJS for four and a half years. He was familiar with the politics and culture of the business. He had been through a number of restructures, and was the only “survivor” of the restructures; every one of his peers was turned over at least three times, and his boss was turned over twice. He was accustomed to seeing “political movements” in the business. The claimant’s perception that he had a limited future at BJS was not solely based on what a senior colleague told him; it was informed by his own experience at the company. I accept that his perception was genuinely held.
The insurer submits that the records from BJS support a finding that there were no issues with the claimant’s performance at BJS. Among other things, the insurer points to the BJS record in which the question “Ok to Rehire” is answered “Yes”. I am not persuaded that this record supports a finding that the claimant returned to his pre-accident level of functioning following the accident, or that he did not experience the performance issues he described in his evidence. Nor does it reduce the weight I give to his evidence about these matters. There is no evidence before me about what considerations were involved in the decision to answer “yes” to the question. Nor is it clear how closely the individual who answered the question worked with the claimant. Further, I have accepted the claimant’s evidence about the difficulties he experienced in his role when he returned to work at BJS after the accident.
In addition to this record, there is the response from BJS to the request from the insurer’s solicitors for information about the claimant’s employment. BJS responded to the request by incorporating answers into the body of the letter[5], and in an email dated 22 May 2024[6]. There is an error in the information provided by BJS with respect to the claimant’s net weekly earnings; it is clear that he was not earning “$14,089.67 NETT” a week as recorded in the response. The response to “performance of duties” was that the claimant “performed at the level expected of Snr Manager in his position”. The response to both “general health and attendance” and “relationship with other employees”, was “good”. His security of employment was said to be “stable”, and the response to “promotional opportunities” was “unsure of this one as he was already the Head of Partnerships”.
[5] Joint Bundle page 395.
[6] Joint Bundle page 500.
It is not clear whether the response provided by BJS that the claimant’s general health and attendance were “good” related to the totality of his employment, his post-accident employment, or some other period. It is evident that after the accident his general health and attendance were not good; he sustained significant injuries, and was off work for 17 weeks.
Further, the source or sources that informed the responses from BJS is not known. It is not, for example, clear whether the responses provided were based on information provided by an individual with direct knowledge of the claimant’s work performance, from documents, or a combination of the two. I give the responses from BJS limited weight. I am not persuaded that the responses provided with respect to the claimant’s performance diminish his evidence about the problems he was experiencing after he returned to work at BJS.
The insurer argues that the claimant’s assertion that his decision to resign from BJS to take up a role at BLY was “somehow accident-related does not stand up to scrutiny”, and sets out at [15] of its 15 August 2024 submissions the reasons it says support this submission.
In oral evidence the claimant said that BLY had been “courting [him] a bit before the accident”. He knew the owners of the business, and they had been “trying to get [him] to come over” for some time. The claimant’s evidence was that when it was apparent to him that things were “not working out” at BJS, and he “wasn’t going as well”, he approached the owners of BLY to explore whether the opportunity was still available. From there things progressed quickly; he resigned from BJS shortly after he signed with BLY. There was no interview involved. I am not satisfied that the evidence supports a finding that the claimant decided to move to BLY prior to the accident.
The claimant gave notice of his resignation to BJS by letter dated 3 August 2023, approximately six weeks after he had returned to full time work. The insurer argues that was not a sufficient time in which to “legitimately assess” whether or not he was capable of continuing to work at BJS over the long-term. I do not agree. The claimant had been working on a part time basis since late May 2021. He had noticed significant issues with his performance after returning to work. He had experienced a range of symptoms associated with his psychological injuries, including panic attacks, was concerned about his inability to perform as he had prior to the accident, and had formed the view that he had a limited future at BJS.
In his oral evidence the claimant explained why he did not discuss the problems he was experiencing with the Human Resources Department (HR) at BJS. He said that HR execute strategy, and that “typically HR are the ones who are trying to work you out of the business”. I accept his explanation. I do not accept the insurer’s submission that if the claimant was “truly struggling and was truly concerned” about his ability to perform his role at BJS for accident-related reasons, he would have formally raised such concerns with BJS.
The insurer points to the limited psychological treatment the claimant has sought and received in support of its submission that his psychological injuries were not causing him significant problems at work, did not give rise to a loss of capacity, and did not play a causative role in his decision to leave both BJS and BLY, and the termination of his employment at BKN.
The claimant gave evidence about the limited insight he had that the problems he was experiencing were “psychological issues”. He says he raised his problems with his general practitioner, that he went to a couple of appointments with a psychologist, that he wasn’t “necessarily ready to talk to someone”, and that he didn’t find the psychological treatment he received in the months following the accident helpful. He described self-medicating with alcohol to get through the “stress”. His evidence was that he didn’t know that if he needed treatment the insurer was likely to fund the treatment. I accept his evidence about these matters.
I accept the claimant’s evidence that BJS was exemplary in managing his return to work after the accident, and that they “did everything pretty much text book”. I have also accepted his evidence about the problems he was experiencing at BJS. I am satisfied that the claimant was concerned about his future at BJS, and that as a result decided to join BLY. I am not persuaded, as submitted by the insurer, that the move to BLY was a promotion, and that this is the best explanation for the claimant’s decision to move. I am satisfied, for the reasons explained by the claimant, that it was a similar role in a smaller company. While the base pay was higher, the bonus opportunity was lower than at BJS.
Although he had hoped he was “up to the job”, I accept the claimant’s evidence that he was unable to cope with the demands of the role at BLY, and was unable to perform the role to the standard required. I am satisfied that this was a direct result of the psychological symptoms he was experiencing. His employment at BLY lasted little more than six months. Leaving a job after such a brief period is not consistent with the pattern of the claimant’s tenure at his pre-accident employers in the decade before the accident.
The insurer argues that the claimant’s evidence about the problems he experienced at BLY was inconsistent with the email from the CFO of BLY, sent to the insurer’s solicitors on 1 March 2023. Among other things, the email records that there were “Nil” performance issues, that his attendance was “good”, and that there were “no issues” with other employees. I am not persuaded that the information provided in the email supports a finding that the claimant did not experience the problems at BLY he described in his evidence.
I do not accept the insurer’s submission that the claimant performed his duties at BLY in an “optimal way”. The claimant continued to suffer symptoms associated with his psychological injuries, including panic attacks, while he was at BLY. I accept the claimant’s evidence that he wasn’t performing, and that he “knew that [he] wasn’t doing the job that [his] two mates employed [him] to do”. An additional consideration was that the claimant considered the role at BKN to be his “dream job”. While this was also a factor in his decision to leave BLY, I am satisfied that the claimant decided to leave BLY because he was not performing to the required standard as a result of the impact his psychological injuries were having on his performance.
I find that the claimant was approached by a recruiter about a role at BKN, and that he decided to pursue the role because he was not performing as required at BLY, and because he thought the role was his “dream job”. I accept his evidence that he hoped he would be able to perform the job.
As it turned out, the role at BKN was not a “dream”. The claimant agreed in oral evidence that the company and the management were “toxic”. His employment at BKN was ultimately terminated without notice. The claimant subsequently commenced proceedings in the Local Court against BKN seeking damages for breach of contract. Affidavits filed in those proceedings refer to various incidents and conversations involving the claimant. The parties agree that I should not resolve the factual disputes that arise in those proceedings.
In his evidence the claimant described BKN as being a “very stressful environment”. He said that he believed he would have handled the environment better prior to the accident. I am satisfied that, as an individual suffering from significant psychological injuries, working in this environment would have been even more challenging for the claimant.
Dr Whetton, in his second report, noted the allegations made by BKN, including that the claimant made inappropriate comments to colleagues and was critical and disparaging of the executive team. In the doctor’s opinion, the claimant’s behaviour most likely related to the psychiatric state which had been identified in him. I accept Dr Whetton’s opinion in this regard. I also accept the claimant’s evidence that he would have handled the environment better prior to the accident. I am satisfied that the claimant’s psychological injuries made a material contribution to his employment at BKN being terminated.
The insurer submits that it is significant that the claimant did not refer to his psychological conditions in his affidavits sworn 12 October 2023 and 29 January 2024. In the insurer’s submission, if there was some accident-related explanation for his dismissal, the explanation would be referred to in the affidavits. In the insurer’s submission, what is evident from the affidavit evidence is that there are very serious non-accident-related issues that were clearly in play.
The Local Court proceedings involve a claim for damages based on a breach of contract; specifically that BKN terminated the claimant’s employment without notice, and did not have a basis to do so. The issues in those proceedings are different to the issues that arise in this assessment.
The claimant’s affidavit sworn 12 October 2023 deals with the terms of his employment, the general nature of the work he performed, and events leading up to the termination of his employment with BKN, with a focus on events that occurred on 18 April 2023. The affidavit also addresses the steps the claimant took to find alternative employment after his employment was terminated. Having considered the matters addressed in the affidavit, I am not persuaded that the absence of reference by the claimant to accident caused injuries, including mental health issues, symptoms, or problems, detracts from his evidence about the impact his psychological symptoms had on him while he was at BKN.
The claimant’s second affidavit, sworn 29 January 2024, responds to matters arising from the affidavits sworn by various witnesses that are relied on by BKN. It is not clear why, in the context of the matters addressed in the affidavit, providing details of his psychological symptoms would have been relevant.
I am not persuaded that the absence of any reference in the claimant’s affidavits to his mental health should result in an inference being drawn that the claimant’s psychological conditions did not play a role in the way he responded to various situations referred to in the affidavits, and did not play a role in his employment with BKN coming to an end.
I have accepted Dr Whetton’s opinion that the claimant’s behaviour at BKN was most likely related to his “psychiatric state”. I am satisfied that the claimant’s accident caused psychological injuries made a material contribution to the way he dealt with the work environment at BKN, and that this in turn led to the termination of his employment.
The medico-legal evidence of Drs Khan and Whetton
Dr Khan did not have access to the documents that were provided to Dr Whetton by the insurer’s solicitor on 27 June 2024. That material is before me, and I have considered it. I have also had the benefit of the claimant’s oral evidence.
I am not persuaded that Dr Khan’s opinion with respect to the claimant’s capacity to earn is diminished because he did not have access to the additional material. There is no dispute that the claimant suffers from post-traumatic stress disorder and major depressive disorder. I have accepted the claimant’s evidence with respect to the symptoms he experiences, including panic attacks, poor sleep, and difficulty focusing. I have also accepted his evidence that his confidence has been adversely affected, and that he does not have the toughness and other leadership characteristics he described in his evidence. These were matters taken into consideration by Dr Khan, and informed the doctor’s opinion about the claimant’s work capacity.
I am satisfied that the work the claimant is performing at BKR is materially different to the work he was performing at BJS, BLY, and BKN; it is at a less senior level, involves less responsibility, and does not involve the same level of intensity. I am not persuaded the material that was provided to Dr Whetton establishes to the contrary.
I am satisfied that the symptoms associated with the claimant’s accident caused psychiatric conditions played a significant role in his inability to maintain employment at BJS, BLY, and BKN. I accept Dr Khan’s opinion that the claimant is presently working at the maximum of his post-accident capacity. I accept his opinion that in order for the claimant to obtain and sustain employment at his pre-accident capacity, he requires an intact mental state, intact cognition, intact ability to tolerate stress and pressure, intact coping mechanisms, intact self-confidence and intact confidence in interpersonal relationships. I also accept his opinion that the accident has eroded the claimant’s functioning in these domains, has prevented him from returning to his pre-accident capacity since the accident, and is likely to persist for the foreseeable future.
In his first report dated 14 May 2024, Dr Whetton arrived at a similar conclusion. The doctor accepted the history provided to him by the claimant with respect to his psychological symptoms. He found that the claimant had developed post-traumatic-stress disorder and major depressive disorder as a result of the accident, and that these conditions impacted on his ability to function. He described “significant ongoing symptoms” associated with these conditions, and expressed the opinion that the claimant’s prognosis was guarded. In Dr Whetton’s opinion, the claimant’s successful professional life had been “derailed”. The doctor’s opinion in this regard is consistent with my assessment of the evidence.
Dr Whetton expressed the opinion that the claimant’s current capacity for employment is restricted as a result of his psychiatric state; that he was working full time in a less demanding role that he was coping with; and whether he will return to his previous higher level roles is uncertain.
Dr Whetton also expressed the opinion that the range of duties the claimant can perform, and the hours, are similar to what he would have performed, however the level of intensity and responsibility are diminished. I do not accept that the range of duties the claimant presently performs are similar to his pre-accident duties for the reasons already given. I do, however, give weight to the doctor’s opinion that the level and intensity of the claimant’s work are diminished, and that his capacity for the future is more likely than not to remain at its current level.
Dr Whetton’s second report was prepared in response to correspondence from the insurer’s solicitors dated 27 June 2024 that enclosed documents from the claimant’s employers together with material related to the Local Court proceedings.
Under the heading “History” the doctor recorded that after the claimant returned to BJS following an absence of some months, he was “struggling with the role and left the company in November 2021”. That the claimant was “struggling” at BJS after he returned to work reflects my assessment of the evidence. The doctor noted that the claimant reported struggling with anxiety and loss of self-confidence while at BLY. Again, this is consistent with my assessment of the evidence.
With respect to the termination of the claimant’s employment by BKN, the doctor stated that the behaviour of the claimant that led to the termination of his employment was “most likely related to the psychiatric state which had been identified in him”, and expressed the opinion that it was more likely than not that the claimant’s psychiatric state did contribute to the lack of success with his employment at BKN.
On the basis that the claimant’s role at BKR was “at least equivalent to his earlier role at BJS”, Dr Whetton stated that it “appears that his successful professional life has now resumed”. However, for the reasons to which I will shortly come, I have found that the claimant’s role at BKR is materially different from, and is not “at least equivalent” to, his role at BJS. I do not accept the doctor’s opinion that the claimant’s professional life has resumed. Nor do I accept his opinion that the claimant has returned to “the previous high level of functioning”.
Dr Whetton was asked whether the claimant has suffered a significant diminution in his past earning capacity by reason of his psychiatric condition, “noting that he has … successfully found alternative higher paying executive roles with each change of role.” The doctor responded:
“Apart from the failure of his employment at BKN…, he appears to be now successfully employed and as is noted that his earning capacity has been successfully increased with the changes in position.”
The question asked of the doctor does not reflect the evidence or my findings. The claimant is earning less at BKR than he did at BJS, BLY and BKN. Further, a comparison of salary is not the basis upon which an assessment of earning capacity is made. The compensable loss is not a loss of income but the loss of capacity to earn income (in a manner productive of financial loss): State of NSW v Moss [2000] NSWCA 133 (Moss) Heydon JA at [71].[7] That the claimant’s earnings at BLY and BKN were higher that his earnings at BJS would not preclude him from being compensated for reduced earning capacity: Moss at [85].
[7] See also Graham v Baker (1961) 106 CLR 340 (Graham) at 347.
For the foregoing reasons, I do not accept Dr Whetton’s opinion that there has not been a diminution of the claimant’s earning capacity. Further, I do not accept that, by reason of the claimant’s employment at BKR, it is unlikely that any psychiatric symptoms are impacting on his ability to work at his pre-accident capacity. His work at BKR is different to his work at BJS (and at BLY and BKN). The claimant is not functioning at his pre-accident level. He continues to experience psychological symptoms that restrict the sort of work he can undertake. He experiences panic attacks. The anti-depressant medication he is taking is having an adverse impact on his memory and concentration. He does have a loss of capacity to earn as a result of these symptoms.
Finally, I do not accept Dr Whetton’s opinion that the claimant has full capacity for employment with no restrictions as a result of the psychiatric injuries related to the accident. The doctor’s opinion in this regard is underpinned by the claimant’s “successful work to date with BKR and the allocation of the bonus payments as reward for his work”. The payment of a bonus does not support his conclusion. The work the claimant is performing at BKR is not the same as he was performing at BJS. Rather, as the doctor described in his first report, the claimant’s role at BKR is less demanding, and the level of intensity and responsibility are diminished.
The claimant’s ability to perform his duties at BKR does not support a conclusion that he has recovered well from any psychiatric impact on his ability to work at his pre-accident high level. His evidence, that I have accepted, supports a finding to the contrary.
The claimant has a loss of capacity to earn that is productive of financial loss
I have made findings with respect to the injuries the claimant suffered as a result of the accident, together with the impact those injuries have had, and continue to have, on his functioning, including his capacity to earn.
The claimant’s role at BJS involved him working with multiple clients, generating significant business revenue, managing a large workforce, travelling regularly, and engaging with large multi-national companies, government representatives, and legislative bodies. He needed to be tough, resilient and confident. As a direct consequence of the accident caused injuries, the claimant no longer has the capacity to work in roles that involve this combination of duties and responsibilities.
The claimant continues to experience panic attacks. The anti-depressant medication he is taking makes him very tired, particularly in the afternoon. He experiences problems with his memory, forgets the names of clients, has lost his place in presentations, and has forgotten deadlines. He no longer multi-tasks like he used to. He tries to avoid stress and loud noises as they are significant triggers for his anxiety. He experiences pain as a result of his physical injuries. The claimant has a clear loss of capacity to earn as a consequence.
I find that the claimant is not capable of performing his pre-accident role at BJS, or any similar role, as a result of his accident caused psychological and physical injuries. I do not accept the insurer’s submission that his employment at BKR is coincidental rather than accident related; it came about because his accident caused psychological injuries in particular have resulted in a loss of capacity to perform his pre-accident work.
I find that the claimant’s role at BKR is less demanding than his role at BJS. He no longer has staff reporting to him. He has only one client. He is not required to travel as he did at BJS, and no longer has the same level of operational and financial responsibility.
I find that the work the claimant is presently undertaking at BKR represents the limit of his current capacity to earn. The economic consequences of the claimant’s loss of capacity are that he can no longer work in a senior management role and earn the same or similar income to that he was earning pre-accident. For the foregoing reasons, I find that as a result of his accident caused injuries the claimant has a loss of capacity to earn that is productive of financial loss.
Earnings
I find that the claimant’s pre-accident net weekly income at BJS was $3,178.40. I have arrived at this figure by averaging over 26 weeks the claimant’s net monthly income for the period 14 July 2020 – 12 December 2020 as recorded in the BJS pay records.[8]
[8] Page 284 of the joint bundle.
I find that the claimant’s net weekly income at BLY was $3,417.62, as recorded in the email from BLY dated 1 March 2023.
I find that the claimant’s net weekly income when he was employed by BKN was $3,621.23. This finding reflects the net payments recorded in the BKN pay slips and the correspondence from BKN dated 20 March 2023.
The claimant commenced employment at BKR on 16 October 2023. The parties agree, and I find, that his net weekly income at that time was $2,805, and that from 1 April 2024 his net weekly earnings have been $2,872.
NON-ECONOMIC LOSS
The claimant is entitled to an award for non-economic loss. This head of damages compensates him for pain and suffering, loss of amenities of life, loss of expectation of life, and disfigurement: s 1.4 MAI Act. The current maximum amount of damages for non-economic loss is $620,000: s 4.13 as adjusted by cl 5 Motor Accident Injuries (Indexation) Order (No 2) 2023.
Once the s 4.11 threshold of 10% impairment is passed, damages for economic loss are assessed without statutory constraint, save that no more than the maximum declared by s 4.13 may be awarded: Hodgson v Crane (2002) 55 NSWLR 199; 36 MVR 551; [2002] NSWCA 276 at [39] per Heydon JA (Sheller JA and Davies AJA agreeing).
The absence of any “statutory constraint” requires the Commission to adopt the common law’s methodology for the assessment of damages for non-economic loss: RACQ Insurance Ltd v Motor Accidents Authority (NSW) and Others (No 2) [2014] NSWSC 1126 (RACQ) at [25]. The maximum has no bearing on the amount proportionate to the claimant’s injury; it simply caps what may be awarded: RACQ at [30].
Evidence
The claimant provided statements dated 21 January 2024 and 14 July 2024 and gave oral evidence at the assessment on 1 August 2024.
The claimant’s evidence is that he found the period in hospital after the accident very harrowing as, because of the COVID-19 protocols, he spent most of the time in isolation and was allowed very infrequent visits from only his wife. On attending hospital after his discharge the smell of disinfectant triggered the first of many panic attacks. He underwent rehabilitation over a nine month period. He is right hand dominant and his right arm injury and associated limitations became a “real problem for him". He has adapted by using his left hand a lot more. Because he has not regained the full use of his right arm, he is no longer able to play golf, play guitar, fish and kayak as he did before the accident. Of particular significance to the claimant, he is no longer able to ride motorcycles. This was a big part of his life before the accident; he enjoyed the freedom that riding motorcycles gave him and it was a way of reconnecting with his deceased father because riding motorcycles was something they did together before he died. The claimant’s evidence is that his right arm no longer has the dexterity required to ride a motorcycle safely. While he tried to ride a motorcycle after the accident, he found that the pain became too severe after 10 to 15 minutes due to the angle of his right hand. He explained this further in his oral evidence. I accept the claimant’s evidence with respect to all these matters.
I also accept his evidence that: he continues to suffer from panic attacks, he becomes distressed; his sleep is disturbed; and that he turned to alcohol in an attempt to alleviate his psychological symptoms. I accept that he was eventually able to get his drinking under control. At [53]-[55] of his 21 January 2024 statement, the claimant described problems that have arisen in his family life. I accept his evidence about those matters.
In his oral evidence the claimant explained that while he was no longer able to engage in deep sea fishing, he was able to engage in river fishing. He had taken up jogging, and went camping with his family. He was also able to garden.
The claimant’s wife provided a statement dated 12 July 2024. She has been married to the claimant for 19.5 years. She states that the claimant’s post-traumatic stress disorder has had profound and lasting effects on his mental an emotional well-being. She described symptoms including flashbacks, nightmares, and mood swings. She states that since the accident the claimant has exhibited signs of emotional withdrawal from his family. Further details are provided at [6] of her statement. She also explains at [8]–[9] the impact of the claimant’s symptoms on her, and provides details of the adjustments that have been made in their domestic arrangements at [12]. I accept her evidence about all these matters.
I have considered the records from treatment providers that are included in the joint bundle. Those records confirm the nature and extent of the claimant’s accident caused injuries and the treatment he has undergone.
Dr Gothelf, orthopaedic surgeon, described the scarring to the claimant’s right shoulder, right forearm, and left calf. He thought that limitations experienced by the claimant with respect to performing heavy tasks in the home and lifting objects above shoulder level were entirely related to the accident, as was his inability to play golf. In his opinion, the claimant’s prognosis was guarded. The pain the claimant experienced in his right shoulder and right wrist, and left thigh numbness, was unlikely to change in the future. The accident caused injuries had affected his ability to return to pre-accident recreational activities of golf and swimming. His inability to return to these activities was unlikely to change.
Dr Khan diagnosed post-traumatic stress disorder, major depressive disorder and alcohol use disorder. He thought that the claimant’s prognosis was guarded. His symptoms of trauma, depression and anxiety affect his day to day functioning.
Dr Whetton diagnosed post-traumatic stress disorder and continuing major depressive disorder, which had impacted on the claimant’s ability to function. The doctor’s second report of 3 July 2024 largely addresses matters relevant to the claimant’s loss of capacity.
Submissions
The claimant’s case is that the physical injuries he suffered as a result of the accident continue to severely impact on his everyday life. While he has tried several times to ride a motorcycle, he is not able to do so because the range of movement in his right wrist does not permit the proper operation of the controls. He cannot play golf because of jarring through his right wrist on striking the ball. Motorcycle riding was an important part of his life as it provided him with a connection to his late father. Golf was also an important part of his life. He is limited in the type of fishing he can do and is precluded from deep sea fishing, a sport he enjoyed prior to the accident. He cannot play the guitar. He struggles to swim, an issue given he has five young children, and is limited in the domestic work he can perform.
The claimant submits that the psychological injuries he suffered have had an equally significant impact on him. He experiences nightmares, flashbacks and other symptoms. There is tension in his relationship with his wife and children due to his agitation and irritability. In his submission, an award of $350,000 to $400,000 should be made.
The insurer argues that the claimant’s physical injuries have largely resolved and give rise to minimal ongoing symptoms and impairment. It is submitted that his psychological symptoms appeared to have resolved for the period May 2021 to late 2023. In the insurer’s submission, whilst the claimant reports ongoing symptoms in 2024, they do not impact on his ability to work. It is argued that the claimant has sought minimal treatment for his accident-related injuries since May 2021, is able to perform many domestic activities including cooking, gardening, mowing the lawns and cleaning his swimming pool, has returned to full time employment, and is performing well in his current role.
The insurer argues that when questioned at the assessment conference the claimant’s evidence was that while he has had to give up or at least reduce his participation in some activities such as golf and motorcycle riding, he has adapted the way that he undertakes other activities and has also taken up alternative new activities. For example, he has modified the way he undertakes fishing and has taken up regular jogging. He has also returned to lawn mowing, confirmed that he enjoys solid and supportive family relationships, goes on camping and other family holidays, and has given up excess drinking.
In the insurer’s submission an award of $150,000 would do justice between the parties.
Award - non-economic loss
The claimant will shortly turn 51. He has a life expectancy of 33 years on the medium life expectancy tables. I have found that as a result of the accident the claimant suffered significant physical and psychological injuries. Following the accident he was admitted to hospital, and was discharged on 29 January 2021, seven days after admission. His experience while in hospital was made worse by the COVID-19 restrictions. The fractured radius and clavicle required surgical intervention (open reduction internal fixation). The plate in his right shoulder was subsequently removed in May 2021. He still has hardware in his right wrist. He experiences ongoing pain in his right shoulder and right wrist, and left thigh numbness.
The right shoulder and right wrist injuries give rise to ongoing disability that is unlikely to resolve. I accept the claimant’s evidence about the impact that these injuries have had on his ability to engage in his pre-accident hobbies, including motorcycle riding (an activity he had been undertaking since he was 7 years old), guitar playing, golf, kayaking, and fishing. Prior to the accident he went deep sea fishing, and would pull up big fish like tuna. Following the accident, and as a result of his injuries, he has made adjustments to the type of fishing he engages in (river fishing from the shore) and the way he goes about that activity; he now predominantly uses his left hand. I have also taken into consideration the scarring to the claimant’s right shoulder, right forearm and left calf, and in this regard have considered the photographs of the scarring that are in evidence.
In addition to his well documented physical injuries, the claimant continues to suffer from post-traumatic stress disorder and major depressive disorder. I accept that he also suffered from an alcohol use disorder that has resolved. I accept the claimant’s evidence, and that of his wife, with respect to his ongoing psychological symptomatology and the impact that this has had on him.
Prior to the accident the claimant was fit and active, and enjoyed a range of hobbies and pursuits. The injuries caused by the accident have had a profound and ongoing impact on his life. I assess the sum of $345,000 for this head.
ECONOMIC LOSS
Damages for past and future economic loss are allowed to an injured person because the diminution of their earning capacity is or may be productive of financial loss.[9] If an injured person’s pursuit of gainful employment is interrupted or affected because of the negligent infliction of injury, they are to be compensated by an amount that reflects the financial consequences that follow from the impairment.[10]
[9] Graham at [347] per Dixon CJ, Kitto and Taylor JJ; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at [3] per Deane, Dawson, Toohey and Gaudron JJ; at [16] per McHugh J.
[10] Husher v Husher [1999] HCA 47 (Husher).
What capacity has been lost and what economic consequences will probably flow from that loss must be identified. Only then will it be possible to assess what sum will put the injured person in the same position as they would have been in if injury had not been sustained.[11] Deciding what value is to be ascribed to the loss of future earning capacity requires close attention to the facts of the case.[12]
[11] Husher at [7].
[12] Husher at [23].
The claimant must prove the extent of his pre-accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and the extent to which the compensable injuries have diminished his ability to exercise the pre-accident earning capacity.[13]
[13] Morvatjou v Moradkhani [2013] NSWCA 157 McColl JA (Hoeben JA and Tobias AJA agreeing) at [54].
Past economic loss
The claimant’s case as articulated in written submissions dated 22 January 2024 was modified in his written submissions of 6 August 2024 and in oral submissions.
The insurer argues the claimant’s assertion that his move from BJS to BLY is accident related does not stand up to scrutiny, and is inconsistent with the matters referred to at [15] in its written submissions dated 15 August 2024. It is also argued that the claimant’s move from BKN to BKR cannot reasonably be found to have been caused by or related to the accident; not only is the move temporally divorced from the accident but as the claimant conceded during questioning, the environment at BKN was toxic.
The insurer submits that an appropriate award for the past economic loss is $58,526 calculated as follows:
(a) 22 January 2021 until 25 May 2021 (17 weeks) at $3,178 net per week (total loss of capacity) = $54,026, and
(b) 26 May 2021 to 21 June 2021 (3 weeks) at $1,500 net per week (50% loss of capacity) = $4,500.
The insurer submits that there should be no other award for the past given that the claimant’s cessation of employment at BKN was plainly unrelated to the accident and that his current employment at BKR is coincidental and voluntary rather than accident related.
The insurer submits that an appropriate award for past loss of superannuation is $6,437 calculated at 11% of the net loss.
22 January 2021 to 25 May 2021
It is agreed, and I find, that the claimant had a total loss of capacity to earn during this period. I assess the sum of $54,032.80 calculated as follows: 17 weeks at $3,178.40 net per week = $54,032.80.
26 May 2021 to 21 June 2021[14]
[14] At the assessment on 1 August 2024 it was confirmed that the claimant returned to work on 21 June 2021.
It is agreed, and I find, that the claimant had a partial loss of capacity during this period. I assess damages in the sum of $4,767.60: 3 weeks at $1,589.20 net per week x 50% loss of capacity.
22 June 2021 to 18 April 2023
The claimant does not seek an award during this period. No allowance is made.
19 April 2023 to 15 October 2023
In the insurer’s submission, irrespective of whether the claimant’s psychological state played a role in some of his behaviour at BKN, as suggested by Dr Whetton in his supplementary report, that is not the basis upon which he presses the Local Court proceedings against BKN. In the insurer’s submission, the dominant or material reason why the claimant’s employment came to an end at BKN was, on the claimant’s own pleading and affidavit evidence in those proceedings, the result of an unlawful dismissal without cause.
I have found that the claimant’s accident caused psychological conditions made a material contribution to the way he dealt with the work environment at BKN, and that this in turn contributed to the termination of his employment.
The insurer also argues that there is substantial overlap between the loss of wages claimed in the Local Court proceedings and those being claimed in these proceedings, and this necessarily raises the possibility of double compensation.
I do not accept the insurer’s submission that to make an award for this period would result in some form of over-compensation given the Local Court proceedings that are on foot. No award has been made in those proceedings. They relate to a different cause of action. The insurer has referred me to no authority in support of its submission with respect to the possibility of double compensation.
Following the termination of his employment by BKN, the claimant attempted to mitigate his loss by seeking other employment, and was ultimately successful in finding a job at BKR through personal connections. I am satisfied that he took reasonable steps to find alternative work and exercise his earning capacity during this period. The appropriate measure of his damages during this period is what he would have earned at BKN had his employment not been terminated. I allow $3,621.23 net a week for 25 weeks, a total of $90,530.75.
16 October 2023 to 22 August 2024
From 16 October 2023 – 31 March 2024 (23 weeks) the claimant was earning $2,805 net a week. I find that this sum reflects his capacity to earn during that period. I find that his loss of capacity to earn amounted to $373.40 net a week, the difference between his pre-accident net weekly earnings at BJS and his net weekly earnings at BKR. This results in an award of $8,588.20 for this period.
From 1 April 2024 – 22 August 2024 (20 weeks) the claimant was earning $2,872 net a week. I find that this sum reflects his capacity to earn during that period. I find that his loss of capacity to earn amounted to $306.40 net a week, the difference between his pre-accident net weekly earnings at BJS and his net weekly earnings a BKR. This results in an award of $6,128 for this period.
The total award for past economic loss is $164,047.40.
Past loss of superannuation
At 11% of the award for past economic loss, the allowance for this head is $18,045.21.
Loss of bonus
The claimant claims a loss of bonus for the 2022, 2023 and 2024 fiscal years of $29,190 net a year, a total of $87,570. The sum of $29,190 is arrived at by averaging his 2020 and 2021 bonuses.
The insurer argues that there should be no award for any past loss of bonuses. It submits that there are multiple contingencies and complexities associated with the claimant’s receipt of bonuses at BJS, and he has not always received a bonus in all the pre-accident years that he worked there.
The claimant’s bonus from BJS for the financial year 2021 was $61,964 gross. The evidence satisfies me that the bonus was pro-rated for the period he was off work after the accident, and that, but for the accident, it would have been $84,497. There was, accordingly, a differential of $22,533 gross. I find that as a result of the accident the claimant suffered a loss of bonus for the financial year 2021 in the sum of $11,500 net. I allow that amount.
The evidence discloses that the claimant received bonuses while he was at BJS in the 2019, 2020, and 2021 financial years. The amount of the bonus differed from year to year. The claimant’s “STI[15] target earning opportunity” was 20% of his gross salary (described as “TEC”).
[15] Short Term Incentive (bonus).
The claimant’s contract of employment at BLY allowed for a bonus of up to $20,000.[16] He received no bonus from BLY, leaving that employment after approximately six months.
[16] Schedule A BLY Employment Agreement.
At BKN the maximum short term incentive opportunity (bonus) was 40% of the claimant’s annual base salary ($300,000 plus superannuation).[17] The incentive was to be paid in accordance with a separate agreement. The evidence is that the claimant did not receive a bonus from BKN. His employment there was terminated without notice after approximately 10 months.
[17] Schedule of BKN Group Employment Agreement.
At BKR the claimant’s bonus “target opportunity” is 15% of annual base salary. There is a maximum opportunity of 30%.[18] In short, the range is 15%-30% of his salary.
[18] BKR employment agreement dated 3 October 2023.
I accept the insurer’s submission that there are multiple contingencies associated with the claimant’s receipt of bonuses at BJS. The awarding of a bonus was dependant on both individual and business performance. Business performance, in particular, varies from year to year. While I am satisfied that it is more probable that not he would have received a bonus but for the accident, given the contingencies I find that the appropriate way to compensate that loss is to allow a buffer. I assess the sum of $45,000.
The total award for past loss of bonus payments is $56,500.
Section 4.5(1)(d) damages
As recorded earlier, the parties agree that the award for s 4.5(1)(d) damages (Fox v Wood) should be $31,840. I allow that amount for this head.
Future economic loss
The claimant’s case
The claimant claims $750 net a week to age 70 on the basis that that sum represents the difference between what he would have earned but for the accident against what he is able to earn because of the accident. After a deduction of 15% for vicissitudes his case is that an award of $424,380 should be made.
He argues that his most likely future circumstances but for the accident were that he would continue to work in senior executive roles in which he would earn at least $350,000 a year. He submits that as a result of the injuries he sustained in the accident he will only be able to work in a “lesser role” such as his present role at BKR.
The insurer’s case
The insurer submits that no damages should be awarded for future economic loss for the following reasons:
(a) the claimant resigned from BJS to pursue a higher paying role at BLY;
(b) the claimant resigned from BLY to pursue a higher paying role at BKN;
(c) the claimant’s employment at BKN was terminated for reasons unrelated to the accident, and in relation to which there are proceedings in the Local Court;
(d) the claimant has demonstrated the ability to locate alternate employment in senior roles on three occasions following the accident;
(e) Dr Gothelf opines that the claimant is fit for his pre-injury duties;
(f) Dr Whetton opines that it is unlikely that any psychiatric symptoms are impacting the claimant’s ability to work. He is considered to have full capacity for employment with no restrictions because of the psychiatric injuries related to the accident, and the evidence of his success in his position with BKR supports this, and
(g) the claimant is currently working full time in a position where he has the potential to earn income consistent with his pre-accident earnings, if not more.
Award
Section 4.7 of the MAI Act must be addressed when assessing future economic loss. The section is in the following terms:
“4.7 Future economic loss—claimant’s prospects and adjustments
(1) Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
Prior to the accident the claimant had a long and consistent work history. I find that his most likely future circumstances but for the injuries he sustained as a result of the accident are that he would have continued in employment similar to that he was undertaking at BJS when the accident occurred, earning similar income, to age 67.
I have found that the claimant has a loss of capacity to earn as a consequence of both his psychological and physical injuries, and that the work he is presently undertaking at BKR represents the extent of his current capacity to earn.
I assess the claimant’s capacity to earn as $2,872 net a week. But for the accident his weekly earnings were likely to be at least equivalent to his pre-accident earnings at BJS. He was earning more at BLY and BKN. I find that the appropriate measure of his capacity to earn but for the accident is the average of his pre-accident earnings at BJS, BLY and BKN. This accounts for possible salary increases. Applying this methodology results in a net weekly figure of $3,405.75.[19] The difference between the two sums is $533.75.
[19] $3,178.40 + $3,417.63 + $3,621.23 = $10,217.26 / 3 = $3,405.75.
As discussed by Heydon JA in Moss at [71]:
“[S]trictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss... The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income... Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities...”
In my assessment, the appropriate measure of the claimant’s loss of capacity is $500 net a week. The claimant is nearly 51 years of age. There are 16 years until he reaches the age of 67. I am not persuaded that he would have worked to age 70. The multiplier is 579.5. After deducting 15% for vicissitudes, I award the sum of $246,288.
I allow a loss of future superannuation at 14% in the sum of $34,480.
The claimant seeks an award for loss of future bonuses at $29,190 per annum to age 70. After deducting 20% for contingencies the sum claimed is $300,000.
Bonuses are variable, and are contingent upon both business and individual performance. In some years they may not be paid. The evidence discloses that in his current role at BKR, the claimant is eligible to receive a bonus of between 15%-30% of his salary. He is earning a lower base salary than at BJS (and for that matter BLY and BKN), and there are differing gateways that need to be unlocked before a bonus is payable.
I find that the claimant’s most likely future circumstances but for his accident caused injuries were that he would work in a role in which there was an opportunity for a bonus to be awarded. I am satisfied that the claimant has lost an opportunity to receive bonuses similar to those he may have been awarded in a role that involved the same level of responsibility he had at BJS. Given the contingencies associated with the awarding of a bonus, and taking into account that he is presently eligible for a bonus at BKR, the appropriate way to compensate the claimant for the loss is by way of a cushion. I allow $100,000 to reflect the loss of opportunity.
SUMMARY OF DAMAGES AWARD
I assess the damages as follows:
· Non-economic loss $345,000
· Past economic loss $164,047.40
· Past loss of superannuation at 11% $18,045.21
· Past loss of bonus $56,500
· Section 4.5(1)(d) damages (Fox v Wood) $31,840
· Future economic loss $246,288
· Future loss of superannuation at 14% $34,480
· Cushion for loss of bonus payments $100,000
Total Damages Assessed $996,200.61
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, weekly payments of statutory benefits paid to the claimant in the sum of $94,105.29.
COSTS
The insurer is to pay the claimant’s costs and disbursements assessed in the sum of $68,992.28.
DE-IDENTIFICATION
Given the sensitive personal information referred to in this decision I direct that the decision be de-identified before it is published in accordance with rule 132 of the Personal Injury Commission Rules.
0
6
0