Debono v QBE Insurance (Australia) Limited
[2024] NSWPIC 87
•27 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Debono v QBE Insurance (Australia) Limited [2024] NSWPIC 87 |
| CLAIMANT: | Daniel Debono |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 27 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Assessment of damages; liability wholly admitted; impact of collision caused claimant’s vehicle to flip; claimant panicked as he had difficulty releasing the seatbelt; injuries included cervical, thoracic and lumbar spine, and psychological symptoms; damages limited to past and future economic loss; claimant employed as a project manager which required long drives in the country and interstate; employer regarded the claimant as a high achiever and rewarded him with a company car and remuneration; Covid-19 assisted as he could work from home which is continuing; claimant concerned about his future prospects due to a company restructure; Held – damages for past economic loss limited to statutory benefits paid by insurer and a $150,000 buffer for future economic loss and superannuation taking into account the extent of the claimant’s injuries and a reasonable expectation of an increase of incapacity. |
| DETERMINATIONS MADE: | CERTIFICATE 1. Issued under s 7.35(1) of the Motor Accident Injuries Act 2017 (Act). 2. Assessment of damages in the sum of $159,727.20 is made in accordance with s 7.36 of the Act. 3. The insurer is to receive a credit of $8,727.20. 4. The amount of the claimant’s costs in accordance with the Act is $34,641.20. |
STATEMENT OF REASONS
INTRODUCTION
On 18 January 2019, the claimant, Mr Daniel Debono was involved in a motor vehicle crash. He was driving in a built-up area in the country town of Tahmoor when the insured driver, failed to give way to the right, and collided with the passenger’s side of Mr Debono’s car.
The impact caused Mr Debono’s vehicle to flip onto its roof. Gases and fluids began leaking from his car. He became very distressed and began to panic. He had difficulty releasing his seatbelt but eventually smashed a side window and extricated himself from the vehicle.
The police, ambulance and fire brigade attended the scene. The claimant was assessed by paramedics and they advised him to attend the local hospital. He was seen at Bowral Hospital, however, from the records provided to me, I cannot confirm if he was conveyed by ambulance or drove himself to the hospital.
GIO Insurance (Australia) Limited (the insurer), wholly admitted liability for the claim for damages and have paid for past treatment expenses and statutory loss of income.
Mr Debono is entitled to claim for damages limited to past and future economic loss and superannuation. He had his whole person impairment (WPI) injuries assessed at the Personal Injury Commission (Commission) which resulted in a not greater than 10% WPI.
ISSUES
The following issues arose:
(a) Has Mr Debono established a past loss of wages over and above the statutory wages paid by the insurer?
(b) What is Mr Debono’s most likely circumstances but for the accident with respect to his claim for future economic loss and superannuation?
Has Mr Debono established a past loss of wages over and above the statutory wages paid by the insurer?
Mr Debono is currently 47 years old. He has a partner and 14-year-old twin boys. He lives in Tahmoor which is a country town south of Sydney.
At the time of this incident, he had been employed with Priceline Pty Limited as a project manager. His role involved the responsibility of overseeing the refurbishment of current or new Priceline pharmacies in New South Wales (NSW) and Victoria. Sometimes, he was required to travel to other states.
He explained to me, these pharmacies are owned by franchisees and Priceline is responsible for the restructuring of the shops and most of the stock.
He explained he was regarded by his employer as a high achiever and was rewarded with a company car and attractive performance pay rises.
Prior to this incident, he was earning $1,669.93 net per week plus superannuation.
Since this incident, Mr Debono says he can no longer drive long distances. He was required to travel to remote areas in NSW, and other states prior to the incident. He predominately works from home using MS Teams for conference calls. He does drive to the head office in Parramatta and to sites in the local area. He said he was required to visit sites up the north coast and said he would be flying rather than driving to these locations.
He engaged a forensic accountant’s report which is based on assumptions and speculations provided by Mr Debono. The assessment for past economic loss exceeds $57,000 plus superannuation.
The evidence to support this assessment is based on medical reports arranged by the claimant’s legal representative. Also, Mr Debono reported he has not been afforded the same level of pay rises as he was rewarded with before this incident.
In oral submissions, Mr Cleary, counsel for Mr Debono suggested a more reasonable approach would be to award damages for past and future economic loss on a global scale by way of buffers.
On the other hand, the insurer submits, apart from the amounts paid for pre-accident weekly earnings, the claimant has not established any additional past economic loss. In fact, the insurer highlights the increase in wages Mr Debono has received since this incident.
The insurer relies on their doctors’ opinions and the employment records provided by the employer. The past economic loss is limited to $8,727.20. The insurer seeks a credit for this amount.
Mr Debono impressed me as a witness of truth. He answered questions in a straightforward manner, although, he did try to explain his answers if he thought this would assist his claim.
He did tell me he felt he had been lucky because COVID-19 had reduced his workload and, as a lot of us, opened opportunities to work from home. I asked him if this could be a reason, he had not been rewarded with the pay rises he had prior to January 2019. He agreed this could be so. I further asked if there was any evidence from other colleagues who had received pay rises. Mr Cleary confirmed there was no such evidence.
Mr Debono told me he worked hard and was a valued employee. He was rewarded with a company car which was important to him. He confirmed he had been provided with a company car throughout his employment. This bonus had not changed since the incident.
Revising the medical reports commissioned by Mr Debono’s legal team, Dr Uthum Dias reported, due to injuries, Mr Debono had one week off work. He returned on a restricted basis and at the time of his report, 22 August 2022, he was partially incapacitated for employment. He has been unable to obtain promotions or bonuses and pay rises. This report of facts regarding the claimant’s employment is misconceived and not supported by the evidence.
Around mid-2022, the country was recovering from the COVID-19 pandemic. Mr Debono told me, this was a particularly quiet period for refurbishments, and he agreed, that perhaps his colleagues may have been in the same position as him due to this downturn in work. He was restricted in that he was working from home, as were many Australians.
Dr Eugene Gehr outlined in the body of his report that Mr Debono’s time off work was minimal. The doctor noted he was working from home, but two other staff were assisting him. I have no evidence from the employer, or colleagues, that this was the case. The doctor did note travel to sites was restricted to two hours and that he was unable to kneel, squat or use ladders. However, Dr Gehr says he was coping with his duties.
Comments by Dr Gehr do not advance Mr Debono’s claim for past economic loss. In fact,
Mr Debono was unable to explain to me why the insurer had paid more than the one week off work in statutory benefits. The insurer’s record of these payments was made from
25 February to 16 May 2019, within the first four months after the accident.
The insurer engaged three medico-legal reports. In summary, Dr Alan Home says
Mr Debono was fit to continue to perform full time work.
Dr John Ashwell took a history Mr Debono was working full time although had reduced driving limits and lifting restrictions.
From a psychological perspective, Dr Graham Vickery felt Mr Debono has no incapacity for work.
The employment records confirm the claimant’s wages have risen in accordance with Consumer Price Index. As such, his wages have increased since January 2019 from $128,385 to July 2023 to $143,985.
His employer clearly values Mr Debono as a valued employee and has accommodated his needs to ensure he has been able to continue to carry out his duties even if the performance of these has altered.
When the insurer asked for comments on Mr Debono’s performance, they were referred to a Mr Baldassarre. Notwithstanding several requests, this question remained unanswered.
Mr Debono told me he can pace himself at home, taking breaks. When he travels to sites, he can regulate the time he leaves home to avoid peak traffic. He can fly to destinations rather than driving long distances.
I agree with the insurer’s submissions that based on the evidence, there is no support for
Mr Debono’s claim for past economic loss. He was unable to produce evidence fellow employees were granted pay rises and promotions since his accident. He admitted that COVID-19 had impacted on his working arrangements regardless of his injuries. The medical evidence relied on by the claimant is based on reports provided to them by
Mr Debono as was the conclusions reached by the forensic accountant.
I assess past economic loss in the sum of $8,727.20. The insurer is to be given a credit for this sum.
I acknowledge the statutory benefits do not pay superannuation. Doing my best, with no submissions on the amount for past superannuation on $8,727.20, I assess this head of damage as a buffer of $1,000.
What is Mr Debono’s most likely future circumstances but for the accident with respect to his claim for future economic loss and superannuation?
There is no question Mr Debono sustained injuries in the crash. Independent Assessor Mohammed Assem assessed his cervical, thoracic, and lumbar spine as a WPI of 9% whereas Assessor Sathish Dayalan found a post-traumatic injury assessment of WPI of 7%.
In his statement and oral evidence given to me at the assessment conference, Mr Debono describes his mental state as completely different to his well-being before the crash. He finds it difficult to concentrate. He is anxious when driving. He can no longer engage with his partner and children as he did pre-accident.
He told me, the day before the assessment conference, there had been a meeting with his employer and a new owner. He said he was concerned about his future considering his injuries. He felt he could be disadvantaged.
The forensic accountant based their assessment of Mr Debono’s future potential future loss on a forced early retirement and the ongoing loss of promotions and pay rises. The amount submitted in the report is $1,137,916 plus superannuation.
Mr Cleary submitted this could not be sustained and recommended I adopt a buffer approach when assessing future economic loss.
The insurer submits there is no evidence to support a claim for future economic loss. In the alternative, if I was mindful to assess a buffer, the amount should be limited to $20,000.
A cushion or buffer assessment is relevant in circumstances where earning capacity has unquestionably been reduced but its extent is difficult to assess, see Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13. I agree with both submissions that, if I find Mr Debono has established a future loss of earning capacity, this can only be assessed as a buffer as there is no methodology to accurately calculate this loss.
There is medical opinion which supports Mr Debono’s claim he may experience a loss of earning capacity in the future.
Dr Dias believes if Mr Debono is in a position where he needs to seek alternate employment on a competitive open labour market, his ongoing injuries and disabilities will have a significant negative impact on his future earning capacity.
Dr Gehr says the claimant is going to have at least a 50% reduction in earning capacity into the future. I would have been assisted with a reason why Dr Gehr nominated a 50% reduction as in paragraph 15 of his report, where he acknowledged that at that time he was coping with his duties.
Likewise, Dr Rastogi opines Mr Debono will have future struggles to cope with his work.
I agree with the insurer’s submission that the claimant has not addressed what Mr Debono’s most likely future circumstance but for the accident would have been. He would have continued to work in his pre-injury employment and may have had promotional opportunities and additional pay rises. There is no evidence that this will not occur.
However, I am satisfied he may suffer from periods of incapacity in the future as suggested by his doctors. The independent assessors were satisfied he has significant disabilities caused by the accident.
Having regard to the injuries sustained in the crash, and particularly the development of significant psychological symptoms, the insurer’s sum is inadequate.
Mr Debono has had periods of incapacity in the past as evidenced by the statutory benefits paid. He may experience deterioration of both his physical and emotional injuries which may cause incapacity.
Mr Debono has at least another 20 years of future work. It is reasonable to accept his incapacity may increase in the future considering the nature and extent of his injuries. Having taken all the evidence into consideration, the appropriate sum for a buffer for future economic loss including future superannuation is $150,000.
SUMMARY
A summary of the damages are as follows:
· past economic loss $8,727.20
· past superannuation $1,000
· future economic loss and superannuation $150,000
TOTAL $159,727.20
COSTS AND DISBURSEMENTS
The costs and disbursements claimed and conceded by the insurer amounts to $34,641.20 set out in the attached costs calculator.
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