Chaar v AAI Limited t/as GIO
[2024] NSWPIC 396
•25 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Chaar v AAI Limited t/as GIO [2024] NSWPIC 396 |
| CLAIMANT: | Omar Mohamad Faisal Chaar |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Terence O'Riain |
| DATE OF DECISION: | 25 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for economic loss; rear-end collision; liability for damages admitted; claimant sustained injuries to his neck, lumbar spine and shoulders; before accident claimant suffered mental illness; claimant an Uber driver and security guard before accident; stopped work after accident; did not return to work until December 2022; insurer questioned credit; inconsistencies between statements and earnings documentation; claim for future economic loss based on loss of earnings as security guard; insurer disputes pre-accident weekly earnings (PAWE) as basis for loss of earnings compared with tax returns; Held – claimant inconsistent witness but psychological condition supports alternative explanation to insurer’s dishonesty claim and is generally corroborated; medical evidence supports past and ongoing disability; past economic loss claim accepted; accident caused change in most likely future circumstances; claimant able to maintain work with suitable duties; claimant likely to remain as an Uber driver; PAWE basis to assess past economic loss; past income tax paid; future economic loss assessed; credit for statutory benefits; total damages assessed less statutory benefits for weekly payments; costs assessed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.36(1) of the Motor Accident Injuries Act2017 Damages assessment made in accordance with s 7.36 of the Act 1. On the issue of liability for the claim, the insurer admits it owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury loss and damage because of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017, I specify the amount of damages for this claim as $490,012.82 less statutory benefits for weekly payments paid to the claimant. 3. The amount of the claimant’s costs and disbursements are $41,862.79 assessed in respect of this claim. 4. Attached to this certificate are reasons for my assessment. |
INTRODUCTION
On 11 June 2024, I assessed Mr Omar Mohamad Faisal Chaar’s (the claimant or Mr Chaar) claim for damages arising from the accident dated 20 March 2020 at the Personal Injury Commission’s (Commission) hearing rooms in Sydney.
Nancy Kuan of Monaco Solicitors instructed Ty Hickey of counsel for Mr Chaar.
Scott Graham of Moray & Agnew instructed Christine Allen of counsel for the insurer.
Jurisdiction
The rules of evidence do not apply to this assessment. I may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
Background
On 21 July 2018, after having just commenced a shift of Uber driving, the claimant stopped his vehicle at a traffic light at 630 Liverpool Road, Strathfield South NSW, when the insured driver’s vehicle struck him in the rear.
An hour after the incident the claimant drove to Canterbury Hospital.
He reported he had pain in the neck, lower back, and shoulders, with pain radiating from the back to the hips and knees.
The hospital performed X-rays of the chest, sacrum, and lumbar and thoracic spine as well as CT scans of the brain and cervical spine. He was discharged following review of these scans, which showed a musculoskeletal injury.
Mr Chaar says these symptoms got worse as time progressed after the accident.
Mr Chaar applied for personal injury benefits against the insurer for the driver who struck his car. The insurer admitted liability for statutory benefits and common law damages. Mr Chaar has received statutory benefits for treatment and weekly payments.
At the time of the subject accident, based on his submissions the claimant was employed as a security officer working on average 12 hours per week in that role, and as an Uber driver, working on average three days per week, 12 hours per day in that role. However, he has told Medical Assessor Rikard-Bell that he was working 20 hours per week as a driver and 30 to 40 hours in security.[1]
[1] R37 Omar Chaar - Insurer's Update Schedule of Evidence marked p 228.
The claimant submits that the extent of his physical injuries is significant and has not improved overtime despite ongoing treatment. In fact, his condition has worsened given his inability to do physical exercise and aggravation of existing injuries. The insurer disputes that claim and submits the accident caused a temporary aggravation of existing conditions, from which he has recovered.
The claimant has no entitlement to non-economic loss damages.
The parties dispute the amount of the claimant’s net weekly income at the time of the accident and the amount that should be allowed for past-economic loss.
The parties disagree about the period Mr Chaar was unfit for work after the accident. The insurer concedes the claimant was unfit for work 36 weeks after the accident. The insurer submits I should not assess any time Mr Chaar was outside of Australia as being time lost from work because of the accident, and that he has no claim for future economic loss.
The claimant claims he was totally unfit after the accident for three years (156 weeks) and then has returned to work intermittently after 17 July 2021 to date.
He received regular payment of statutory benefits to a total of $192,053.42 to be credited to the insurer.
There is a claim for s 4.5(1)(d) of the Motor Accident Injuries Act 2017 (MAI Act) to reimburse $35,509 income tax paid on statutory benefits.
The key points on future economic loss are:
(a) most likely future circumstances;
(b) whether he can return to his pre-accident earning capacity;
(c) prejudice on open labour market, and
(d) time off work.
Evidence
Mr Chaar’s statements
The claimant’s statements are dated 9 September 2021[2] and 26 March 2024.[3] Some points are not disputed; some are repeated in each statement and the earlier statement contains more details about his recovery from the accident. The earlier statement was drawn while he was in Finland during the pandemic.
[2] R39 Omar Chaar – insurer’s update schedule of evidence.
[3] A13 update to claimant’s bundle.
He claims the accident caused the following injuries:
(a) neck injury;
(b) lower back injury;
(c) supraspinatus tendinitis in both shoulders;
(d) aggravation of cervical spine degenerative disc disease;
(e) aggravation of lumbar spine degenerative disc disease;
(f) post-traumatic stress disorder, and
(g) major depressive disorder.
His disabilities:
(a) strong back and neck pain;
(b) stiff neck and shoulders with head pain;
(c) limited bending and reduced lifting capacity;
(d) reduced standing, sitting, and driving capacity, which effects his driving with Uber;
(e) reduced concentration and memory;
(f) insomnia, depression, and anxiety with irritability;
(g) fear of re-injury;
(h) reduced socialisation, and
(i) unable to perform domestic tasks and care for self.
Treatment
Soon after the accident and going to Canterbury Hospital he saw his general practitioner (GP), Dr Kanawati. He referred Mr Chaar to physiotherapy and orthopaedic specialist treatment. The GP also referred him for psychological treatment from his former psychologist Mr Metry.[4]
[4] A6 claimant’s evidence.
The orthopaedic specialist injected cortisone five times between 2019 and 2021. Three injections with the right shoulder, and two injections to the left. The specialist recommended further shoulder injections, but a Medical Assessor decided the injections were not necessary.
On 29 June 2021 he fell aggravating his lower back and causing left knee pain.
He is still being treated, and shoulder surgery has been recommended. He takes a mixture of pain and mental health medication.
Medical and lifestyle history
His father is dead. He says his mother tends to dominate him and criticise him for not having a job.
He is married to Marina, who he met in 2019 on a holiday in Greece. She is a Russian living in Finland, which is convenient because he already had relatives there. He has not had any children with her.
He has five siblings; one brother in Australia is a senior nurse, who referred him to a bariatric surgeon. Mr Chaar also lives with his sister, in a sleepout at the back of her house.
He had had lower back pain in 2011 and 2015, but these had resolved before the accident.
He is an overweight man, who has found his condition hard to manage despite drastic intervention. He has been as heavy as 160kg.
He began to see his GP in 2009 seeking help about his weight and his psychological condition. In 2014 he was divorced, and his wife left with the children. He is estranged from his children. At various times he has been living with his brother or sister and has been homeless. He worries excessively.
He saw a psychologist, Mr Metry in July 2017. The date of the note coincides with him returning from Dubai in the United Arab Emirates (UAE) where he worked in media. In his statement he says that he was working in Dubai from 2014 for MBC Group (MBC). The pay records show he was a full-time employee at that time, and that his pay package consisted of salary and allowances including gym attendance.
Before the accident he was saving for bariatric surgery. He had two jobs, was living near his family and was able to pay his debts. He says in the 2021 statement he was fit to work and would only have occasional minor back and neck pain.
He said his psychological issues were generally fine except during his separation in 2014 and when he was unable to find work. He says was psychologically well shortly before the accident.
He still had the bariatric surgery on 8 August 2018 because his GP advised that it could help his recovery from the accident as well as losing weight.
Despite working long hours shortly before the accident, he still enjoyed motorbiking, walks and playing games. He would go out with friends and see his family.
His first wife was Finnish too, however that marriage ended in 2014.
Shortly before the accident he claimed he was working approximately 80-100 hours a week, often over 12 hours each day. He would occasionally do the grocery shopping and approximately once a week cook and cut the grass.
He felt he had secure jobs with flexible hours and a stable income, close to family, and enjoying life.
By 2021 Dr Maniam said his left shoulder will not get better anytime soon. Mr Chaar could lift his arms above shoulder height, however, not sideways. The knee, leg and right hand had healed, with neck and back pain not improving. The right shoulder had almost healed.
He wanted platelet-rich plasma therapy (PRP), but the insurer declined to pay that or pain management.
He travelled to Finland during the pandemic and said his psychologist encouraged this move. He felt his mental health is much better. The move has mitigated his stress and anxiety. His uncle took care of him.
Although he may need left shoulder surgery in the future, he believed his right shoulder injections were effective.
He does not apply himself to the prescribed exercises and avoids left shoulder movement.
Education and employment history
He attended high school in Lebanon until Year 11 in 1988, after that he went to Technical College.
In 1991 in Finland, he completed a cooking course, then studied marketing and management for restaurant businesses.
In Australia in 2003 he obtained a TAFE Certificate III in Screen and Media and completed Filmmaking Summer School at the University of Melbourne.
In 2008 he obtained a Graduate Diploma in Media Arts and Production from UTS.
In 2010 he completed a TAFE Certificate III in Commercial Cookery.
In 2017, he completed a course in Security at Secta in Guildford and received a security and first aid certificate.
In July 2017, he began studying a Certificate IV in Procurement and Contracting at TAFE NSW St George in Kogarah but withdrew soon after the accident on 31 July 2017 due to his health.
He has tried starting or investigated various courses since then.
While he lived in Greece in 1989, he worked in various positions including as a bartender, a receptionist in a hotel and a cook.
In Finland in 1991, he was as a cook for restaurants and large households and worked part-time as a fresh food salesman.
In 1994, he established a grocery import business in Finland, which involved travelling across Europe. He sold this business in 2000.
In 2000, after moving to Australia, he was head chef at a hotel in Revesby for a short time.
In May 2002, he established a restaurant, Café Mango in Wiley Park, and Restaurant Zest, in Newtown, but they were not successful.
In approximately 2003 or 2004, he was a cameraman and video editor for weddings, sporting events and other occasions. It was physically hard work.
During 2008 to 2010 he tried to build a couple of export/import businesses. In 2012, he started a photography company in a couple of studios in western Sydney as well as the cafes. By 2016 all these businesses were wound up.
There is no documented evidence of these businesses, like social media posts, advertising, or financial returns.
During the assessment he said he also tried to set up businesses in Finland during the pandemic that were complimentary to the import export businesses in Australia.
From 2014 until 2017, he worked in Dubai as a cameraman and video editor for MBC Group Dubai. This role involved carrying filming cameras and tripods as well as sound and lighting equipment. He travelled for work across different continents. He earned approximately USD $5,600 per month in this position and was paid extra per diem for travel.
That job ended when MBC made him redundant.
He could not find similar work when he moved back to Australia in 2017. He started receiving Newstart again from 26 June 2017 to 22 July.2018, the day after the accident.
From January 2018 until the accident in July 2018, he was a casual security guard for FBIS International. He worked up to 84 hours per fortnight, earning approximately $1,300 net per fortnight.
From January 2018 until the accident in July 2018, he drove for Uber for up to approximately 12 hours per week, earning approximately $700 per week.
In 2021 in Finland, he worked casually as a translator over the phone for approximately one to two hours per day, earning approximately $30 per hour. He rarely worked.
From December 2022 until March 2023, he was a night security guard for M.A. Services. He was still suffering from the accident, so he switched to Uber driving in March 2023.
He now works approximately six to eight hours per day and four to five days per week, earning approximately $1,200 net per week, after taxes but excluding expenses.
Claimant’s oral evidence
The insurer put it to Mr Chaar that there were inconsistencies with his work history and Centrelink records, which were summarised in VCC’s Functional Capacity Evaluation Summary Report dated 28 March 2022.[5] Mr Chaar received a disability support pension (DSP) from 18 May 2011 to 9 June.2014 (when he left for Dubai) due to “obesity, lumbar and cervical osteoarthritis, chronic pains in his knee and major depression.”
[5] R35 insurer’s updated schedule page 183.
Centrelink assessed him as unfit for any kind of work in April 2010, and again in May 2011 due to a spinal disorder (osteoarthritis of the lumbar spine) and lower limb deficiencies (left knee pain), morbid obesity and depression, conditions that were considered “permanent.” He was reportedly unable to maintain physically demanding work and had restricted ability to sit, stand and walk for prolonged periods due to the disabilities.
He received the Newstart allowance from 5 January.2010 to 18 May 2011.
In 2011, he reported to Centrelink that he had had “no employment in the past two years and had had no permanent employment since 2006.” Dr Kanawati, in a report to Centrelink, dated 26 May 2011, diagnosed cervical and lumbar discopathy and sciatica. Dr Kanawati reported that Mr Chaar was unable to do any exercise due to his physical limitations.
He said he was able to receive disability support pension because none of the businesses he started made any money and that he was sometimes just a figurehead, while members of his family were the real operators.
He said he sometimes had to manage pain when he was working in Dubai. He felt he had no choice but to persevere due to the need to make money, especially as members of his family had given him loans.
He conceded that he told Centrelink before the accident he was taking pain medication when Centrelink resumed paying him Newstart after he returned to Australia. His pre-accident problems also impacted his security guard work because he told the employer he could only work suitable duties that did not aggravate his knee and back problems. His obesity also restricted him.
He was also questioned about a statutory declaration, which is listed in the insurer’s updated bundle but not included[6], to the Department of Foreign Affairs and Trade requesting permission to leave Australia to travel to Finland. Although his earlier statement refers to him needing to travel to get away from the trauma related to the accident; it refers to missing his partner and being his Finnish uncle’s carer. He also said he was looking at business opportunities between Finland and Australia.
[6] R 38 insurer’s updated bundle.
Mr Chaar said he became engaged to Marina in 2020. He returned to Australia during the pandemic and wanted to return to Finland in August 2021. He wanted to see his fiancée because the accident had caused a lot of grief, and he was looking for care himself. He also said he did not do much at his uncle’s home but spent time with him and sleep on a mattress in a spare room. The business idea was to complement a company he had already started in Australia.
An investigator[7] followed him on several occasions including when he travelled to the city from the Bankstown region to see the insurer’s psychiatry expert Dr Vickery.[8] Although he told the assessment that he sticks to the Bankstown area he was told he had been seen in Beverly Park near Ramsgate and had driven his car to Petersham to catch a train into the city.
[7] R8 surveillance report of M&A Investigations 13 January 2021.
and annexed footage.
[8] R6 insurer’s evidence.
He visits Beverly Park to see his only friend, Richard, who he referred to in the first statement.
The observations also showed him watering his garden holding his arm out without restriction, while he demonstrated restriction in his range of movement when he attended medical appointments for this case.
He also told psychiatrists that he had not been in a relationship since his marriage ended in 2014, and when he saw Dr Jungfer, he was already engaged. He also spoke of having nothing to live for when he was making plans for his future.
The insurer’s counsel put it to Mr Chaar that he exaggerates his disabilities when he sees doctors. For example, psychologist Dr John McMahon said in his report of 2 November 2020,[9] Mr Chaar over reports his symptoms which casts doubt on his self-reported symptoms and functioning. Mr Chaar denied all of these assertions.
[9] R4. insurer’s evidence.
He was asked about cash deposits, which bank records showed were made regularly between May 2018 and 23 October 2021.[10] The insurer suggested he was working when he had told the insurer and doctors that he was unfit to work. Mr Chaar said those deposits were loans from his family.
[10] R41. Updated insurer’s bundle.
Medical evidence
Dr Robin Mitchell’s report of 22 November 2021 opined Mr Chaar could drive full-time. He found the accident did not cause any injury. Dr Mitchell said Mr Chaar was exaggerating and there was no objective evidence to back his reported disabilities.
Psychiatrist Dr Graham Vickery report dated 31 December 2020 noted other reports referring to Mr Chaar’s malingering. He said the accident did not cause any psychiatric conditions.
Dr Anthony Smith’s report dated 2 November 2021 opined Mr Chaar was “manufacturing”, exaggerating and malingering. Dr Smith opined Mr Chaar could return to his previous employment.
Vocational Capacity Centre’s (VCC) report dated 30 March 2022[11] for the insurer concluded Mr Chaar demonstrated the ability to perform sedentary and selected light work on a full-time basis with provisions for alterations in work posture. VCC did not identify any restrictions that would stop him from returning to security work and driving.
[11] R 35 Updated insurer’s bundle.
Mr Chaar was not motivated and pre-occupied and does not believe he has the capacity for any type of work. There were concerns regarding Mr Chaar’s consistency. Resolving the claim may help Mr Chaar move on.
Occupational therapist Ms Carol Lausch’s report on 12 January 2022 noted “Mr Chaar’s capacity for current for future employment is poor, subsequent to the significance of residual physical and psychological impairment that continue to compromise potential for return to work in the general labour market”.
In response to Mr Chaar reporting that he had travelled back to Finland on several occasions since the accident, despite describing limited seated tolerance, Ms Lausch reported that Mr Chaar explained he was able to do this as he was able to stretch across two seats on long haul flights.
Dr James Bodel, in his report of 22 October 2019, stated that Mr Chaar indicated to him that he is unable to work. Dr Bodel stated that Mr Chaar’s treating doctor certified he was not fit to return to work as a security officer or as an Uber driver because of the injuries he suffered in the accident. Dr Bodel confirmed the accident had compromised Mr Chaar’s work capacity and noted that “improved physical fitness levels will enhance function and increase his chances of increasing his work”. He opined Mr Chaar needs to see his GP and physiotherapist regularly to maintain recovery.
Dr Bodel assessed 13% permanent impairment combined, being 5% in the neck, 0% in the lumbar spine, 2% in the left shoulder and 6% in the right shoulder.
Dr Bodel’s recent report dated 2 February 2024 confirmed Mr Chaar had persisting disability and predicted he would need to be vigilant to avoid decline. Dr Bodel rejected Dr Smith’s conclusions about Mr Chaar’s authenticity.
Dr Patricia Jungfer’s report dated 21 June 2021 notes when Mr Chaar returned from Dubai in 2017, he struggled to find employment, and this triggered his mood disorder. He obtained his security license and was working at Port Botany wharfs as well as driving Uber. He was hardworking and enjoyed the activities that he was completing.
Mr Chaar told Dr Jungfer he does not understand why his first wife divorced him. He told Dr Jungfer he had not been in a relationship since. This was when he was already engaged to Marina in Finland, who is now his second wife. Back in 2021 his depression and anxiety were expressed as isolating, anxiety and being fearful of driving. In 2019 he says he experienced auditory hallucinations. He says treatment has not helped him.
He lost interest in socialising. At the time he said he had poor appetite. He could not get to sleep and only slept five to six hours. He has memory problems. He had panic attacks. He struggles with self-care.
He says his life was perfect at the time of the accident, but the accident destroyed that. Dr Jungfer thought Mr Chaar overstated his condition but considered Mr Chaar’s pre-accident psychological disorders had abated completely by the time of the accident, and she assessed 15% permanent impairment.
Medical Assessor Cameron’s certificate dated 22 April 2023[12] stated Mr Chaar was co-operative and provided a clear history.
[12]R36 updated insurer’s bundle.
The only inconsistency was shoulder movement, which Mr Chaar explained. Like Dr Bodel, Medical Assessor Cameron still assessed the same body parts as impaired. It was 4% permanent impairment though in the shoulders with neck and lumbar spine impairment that was symptomatic but rated 0%.
Medical Assessor Rikard-Bell’s certificate dated 9 August 2023 recorded that the accident caused 2% permanent impairment, assessed as exacerbating, not causing, Mr Chaar’s major depressive disorder. He disagreed with Dr Jungfer’s findings in that aspect.
Although the assessors had Dr Vickery’s and Dr McMahon’s reports which supported Mr Chaar manufacturing symptoms, the assessor found that was not so in his assessment, although objectively Mr Chaar’s views about his health and life before the accident was not objectively accurate.
Documents considered
I have considered the documents provided in the bundles.
Reasons
Credit
The insurer submits the claimant has made self-serving and subjective claims about his earning capacity and work practices before the accident and his future work intentions and that I should not accept his evidence unless it is corroborated.
Reliability of the claimant’s evidence
Mr Chaar suffered soft tissue injuries and psychological injuries, which are documented. He has now demonstrated that he was motivated to return to work, but the disabilities arising from his injuries will continue indefinitely. He tended to forcefully state his disabilities.
Mr Chaar is turning 54. He is 170cm tall with a dark brown comb over.
He has mannerisms such as laughing inappropriately while others are speaking, rolling his head, and moving about because of pain he says he experiences. He has no distinctive scars and does not need glasses.
Before the accident on 27 July 2018, he had discrete incidents of back pain, which apparently resolved. His obesity has also caused hypertension and unsafe cholesterol levels. He also had sleep apnoea with knee and back problems, which are consistent with obesity.
Mr Chaar’s has a history of various businesses such as cafés and other business ventures, as well as being an expatriate undertaking international travel on behalf of a media organisation. He seemed to live an introverted life in Australia yet overseas he was outgoing. He went from being on a disability support pension to being an international cameraman, making a life in the UAE and after that romancing the new wife.
Correspondence between his GP and bariatric surgeon before the accident shows that he was taking considerable trouble to address the obesity, which he saw as a barrier to employment and self-actualisation.
His GP notes[13] are hard to read. I can discern that between May 2009 until December 2013 he mostly attended the GP for psychological issues. It looks like he visited his doctor about every two months.
[13] A4 claimant’s bundle.
The notes resume in June 2017 when he sees his doctor weighing 147kg.
The Metry notes also showed that he was seeking medical support to obtain public housing.
The scans taken after the accident show oedema, which supports the accident on 21 July 2018 causing trauma to the injured body parts.
Mr Chaar’s best friend is Richard who lives in Beverly Park, near Ramsgate. This is the person the insurer’s private investigator observed. Apart from Richard, Mr Chaar says he does not have many friends.
He values education because he attended TAFE and diploma courses in the past to obtain qualifications. He has enrolled in TAFE courses since the accident but has not finished them because he says he cannot concentrate because of his pain.
He says he does not see his wife very often, but there must be some connection because she travels to spend time with him in Australia.
I note the insurer submits his willingness to travel since the accident indicates Mr Chaar is not as disabled psychologically as he attests. However, I note that Medical Assessor Rikard-Bell addressed that when he commented that it indicated he was looking for family support and that travel was an understandable response while he was suffering angst.
Mr Chaar’s statutory declaration to obtain permission to leave Australia during the pandemic emphasised that he was doing so to see his partner, care for relatives and try to start a business, rather than wanting family support after the accident stopped him working. What he wrote in the statutory declaration sounds more positive than the latter, but the two situations could coexist.
Shortly before the accident, after the disappointment of being retrenched in Dubai, Mr Chaar was following Mr Metry’s advice and looked like he was attempting to get his life together. Although the clinical notes, medical reports and statement record recorded varying hours of work, he was capable of full-time work.
He was also pursuing bariatric surgery to deal with his morbid obesity, which is life threatening. It is not a light-hearted undertaking. It is expensive, requires a long commitment to strict fasting before and after the surgery. The risk of death for such invasive surgery is significant. The payoff for having the surgery is the possibility of improved health, mobility, and increased energy.
He was so committed to making the change that the accident did not alter his trajectory of trying improve himself.
Those actions indicate he was taking significant steps to self-improvement. He says the accident has frustrated and delayed his progress.
Back in March 2022 VCC identified that Mr Chaar lacked motivation, however later that year he returned to security work, and when he found he was too fearful to do that work, he switched to Uber driving.
He says the injuries from the accident are still frustrating his progress, so he is seeking compensation for partial loss of future income.
Mr Chaar is self-absorbed. He blames the circumstances, and he lacks insight; for example, Dr Jungfer’s report records that he did not know why his wife divorced him and his children are estranged.
The Victorian case of Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 (Stevens), highlights that if a party asks a tribunal to make findings on credit, then a tribunal may –where the claimant’s mental injury or other relevant factors are part of the facts – consider whether these could impact on how that claimant gives evidence. Accordingly, it is reasonable in this case to hypothesise that a lack of reliability or inconsistency could have been influenced by Mr Chaar’s psychological and mood conditions from before and after the accident rather than an attempt to mislead.
The insurer has demonstrated Mr Chaar has been inconsistent in various aspects, but he has medical support that the accident injured him and that for a time he was totally unfit to work because of the accident.
That he mixes aspects of existing traits unrelated to the accident with the accident-related conditions is addressed in the Commission’s medical assessment certificates. These drew a line between the claimant’s condition before and after the accident. They still conclude that the accident injured and disabled him.
The claimant alleges in various statements and reports he was working between 24-36 hours per week performing security work and 12-24 hours per week driving for Uber although he claimed he worked as much as 80 to 100 hours per week at times. There was no doubt he was working, but the variations are wide.
The earlier statement was drawn from conversations when Mr Chaar was in Finland during the pandemic. That distance from his legal advisers is also something that could impact on his accuracy.
The conclusions about the varying hours–among other inconsistencies–are addressed in the claimant’s most recent statement, which states that the most he worked as a security guard before the accident was 84 hours per fortnight and with Uber at 12 hours per week. That statement was made with the benefit of up-to-date legal advice after the insurer pointed out the prior inconsistencies. I accept that is as accurate as it could be expressed.
I find after considering the above that although catastrophic in his presentation, Mr Chaar can generally be accepted.
ASSESSMENT OF DAMAGES
Past economic loss
In cases assessing economic loss in personal injury claims such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined is whether a claimant has sustained a loss or diminution in his or her earning capacity, and if so whether that loss or diminution will result in economic loss. I must have also regard for the provisions of s 4.7 of the MAI Act.
The insurer points out the claimant has a significant history of being unfit for work and experiencing a range of debilitating conditions. This led the claimant to continue to receive Centrelink benefits in the past and at the time of the accident.
Mr Chaar’s evidence is before the accident he was hoping to keep working and restore his fortunes after a tough decade or at least maintain regular work.
His career in Dubai and willingness to work two jobs successfully, albeit for a short time indicate he was not work-shy. He was not in great health, but he had prospects. He was seeking psychological and medical help to support that aim, which he was applying.
He told doctors and gave evidence that he believes his life would have been much better once he lost weight and had been earning regular money. He said that the accident frustrated that goal.
The insurer relies on its orthopaedic evidence to contend the claimant experienced a short-term exacerbation to a pre-existing degenerative condition about the lumbar and cervical spine. The insurer says Mr Chaar was completely recovered by 2021.
Dr Bodel’s reports and Medical Assessor Cameron’s medical assessment certificate of 22 April 2024 agree the accident injured his neck, lumbar spine and left and right shoulders. They also agree he had permanent impairment in all those body parts, although Medical Assessor Cameron’s lower level of permanent impairment reflects the usual trajectory of injuries eventually healing.
Medical Assessor Cameron considered the insurer’s Drs Mitchell and Smith reports from 2021, which did not support permanent impairment or ongoing disability, so he knew there were competing views. He also saw the surveillance material, which the insurer instructed its medico-legal experts with. For that reason, I prefer Dr Bodel and Medical Assessor Cameron, who examined Mr Chaar more than four years apart and made complimentary findings.
Likewise, the Medical Assessor Rikard-Bell’s psychiatric permanent impairment medical assessment dated 9 August 2023 establishes that while Mr Chaar had depressive illness before the accident it resulted in the psychological condition becoming worse because of the accident.
I find the evidence on balance supports a nexus with the accident-related injuries and the claimant stopping work and losing income. The accident caused injuries that made him unfit to drive Ubers until 2023 or to carry out security work until December 2022.
The claimant alleges his pre-accident weekly earnings (PAWE) were $1,817.63 gross, or $1,348.63 net. This is based on the PAWE the insurer calculated to pay Mr Chaar weekly benefits under Division 3.3 of the MAI Act.
The insurer argues that the PAWE it assessed for statutory benefits should not be the basis of the claimant’s past economic loss. The insurer’s calculations of statutory benefits or the Commission’s decisions on PAWE do not bind an insurer when calculating damages.[14] It can still be part of the evidence matrix.
[14] Section 3.44 MAI Act.
The insurer’s lawyers did not provide the reasons why the insurer calculated PAWE at the above figure amount but argues in the damages claim that the absence of any pay slips and Uber log records means the insurer was unable to determine the accuracy of Mr Chaar’s claim.
The insurer argues the claimant’s tax returns did not support Mr Chaar’s claim he was earning $1,348.63 per week before the accident. The insurer calculates the claimant was earning around $775 net per week. It is my experience though that the tax returns of self-employed or sub-contracting workers often reflect less than the loss of earning capacity.
The insurer submits that damages for past wage loss should be limited to 36 weeks, which amounts to $27,900.
Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 refers to the assumption that a tribunal should rely on a claimant’s past earnings as recorded in tax returns and payslips when calculating loss after an accident. I must explain why I would depart from that assumption, because I consider that the insurer’s calculated PAWE presents an accurate picture of Mr Chaar’s loss after the accident.
Considering that Mr Chaar is now earning $1,200 per week after tax just Uber driving, it shows that there is now not a huge difference between his earnings since he returned to work to what he earned before the accident. Accordingly, if the insurer assessed PAWE as it did, then it was justified, and it should be applied as the basis for his past earning loss claim.
The insurer also disputes the extent of the claimant’s alleged loss. It submits the claimant is not entitled to recover past economic loss damages for periods where he has travelled overseas to care for elderly relatives being:
(a) 15 weeks lost income for the period 31 March to 20 June 2019 when he first travelled to Finland, and
(b) 30 weeks from November 2019 to June 2020.
As Medical Assessor Rikard-Bell opines, Mr Chaar left Australia to seek family support among other reasons, which was related to the loss of work capacity the accident caused. That is why I do not find it reasonable to deduct 45 weeks from the past loss claim.
I intend to calculate the claimant’s loss as claimed adding 17 weeks since the claim and deducting a further $1,200 per week for that period. I will apply 11% to the past superannuation loss. If there is a miscalculation or an adjustment required, the parties have leave to approach me to fix an obvious error or agree on their own figure.
The claimant past loss is calculated as follows:
18 July 2018 to 16 July 2021 = 156 weeks
156 weeks x $1,348.63 net pw=
$210,386.28
17 July 2021 to 26 July 2024
158 weeks x 1,348.63 net pw
$213,083.54
Less earnings
Interpreting estimated
($1,500)
Auswide Management Solutions (security)
($19,797)
Uber March 23 to date (69 weeks)
($82,800)
Total
$319,372.82
Superannuation calculated at 11% is $35,131.
The insurer ceased paying weekly benefits in April 2021. The total weekly payments were $192,053.42 with $35,509 tax paid.
Future economic loss
Section 4.7 of the MAI Act states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances.
I am satisfied that Mr Chaar has discharged the onus that the accident caused him to lose some of his future earning capacity. This is mainly due to:
(a) the broad consensus of medical evidence supporting an assessment that he still suffers pain and disability connected to the accident;
(b) he is restricted to Uber driving, whereas before the accident he had the capacity to work also as a security guard, and
(c) there is a possibility that but for the accident he would have had better outcomes from his bariatric surgery, which would help his energy levels and recovery from the accident.
I find Mr Chaar’s most likely future circumstances – but for the accident – were that he would have continued to combine work as a security guard and Uber driver. Before the accident he was successfully working both jobs and earning reasonable wages.
He has lost the ability to combine the two jobs, which I find cause Mr Chaar a continuing loss of earning capacity.
Mr Chaar could have future health problems unrelated to the accident, because of his many years of obesity, but this can be dealt with by increasing the vicissitudes to reflect a higher degree of risk from causes independent of the accident or assessing a buffer that reflects that uncertainty.
Despite being able to calculate an amount for his past loss, the facts about his past earnings, mixed with his mental health issues before the accident, which had persisted are not sufficiently clear to establish a precise future claim.
In Penrith City Council v Parks [2004] NSWCA 201 the Court of Appeal concluded that it is appropriate to assess economic loss as a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine.
In this case Mr Chaar is consistently earning about $150 loss between his PAWE and his current earnings. I find the medical evidence supports a probability that loss will continue, and he will suffer prejudice on the open labour market, so I assess $100,000 as a future buffer considering the accident caused conditions that will impact on his ability to grow his earnings and how he earns into the future.
Superannuation is accounted for in the buffer.
Assessment of damages summary
Section 7.36 (1) (b) of the MAI Act requires me to assess the damages that a court could likely award in these circumstances.
I assess the damages for this claim based on the above findings:
past economic loss including superannuation $354,503.82
future loss of earnings $100,000
s 4.5(1)(d) income tax paid $35,509
Credit for statutory benefits ($192,053,42)
Total of economic losses $297,959.40
Costs and Disbursements
I note there is no disagreement on the disbursements. I note that the permanent impairment, treatment and merit review disputes were included in the costs. I have included the medical disputes in the costs because they were mentioned in the damages assessment. However, these may have already been paid as they were resolved some time ago. I expect the costs will be adjusted if that is the case.
I did not assess costs for a merit review because there was no information about that dispute and how it impacted on the damages assessment.
I have taken the amount of statutory benefits paid to Mr Chaar into account and calculated costs and disbursements at $41,862.79.
CONCLUSION
On the issue of liability for the claim, the insurer admits it owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury loss and damage because of that breach of duty.
Under sub-ss 7.36 (3) and 7.36 (4) of the MAI Act, I specify the amount of damages for this claim as $490,012.82 less statutory benefits for weekly payments paid to the claimant.
The amount of the claimant’s costs and disbursements are $41,862.79 assessed in respect of this claim.
0
5
0