Diener v QBE Insurance (Australia) Limited
[2022] NSWPIC 568
•4 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Diener v QBE Insurance (Australia) Limited [2022] NSWPIC 568 |
| Claimant: | Christopher Diener |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Bridie Nolan |
| DATE OF DECISION: | 4 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - General assessment; application for personal injury damages; claimant injured in motor accident; claimant commenced work as a personal trainer shortly before the accident; lack of reliable contemporaneous evidence of fee earned as personal trainer; surgery to cervical spine; diminished capacity; assessment of damages for non-economic and economic loss; competing forensic accountant reports; turns on own facts; Held – the amount of damages for the claim is $567,114; the amount of the claimant’s costs in the matter is $65,435.06 inclusive of GST. |
| determinations made: | 1. The amount of damages for the claim is $567,114. 2. The amount of the claimant’s costs in the matter is $65,435.06 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
The claimant makes an application for the assessment of personal injury damages arising out of a motor accident which occurred on 4 December 2018. He was 54 years of age at the time and as a personal trainer at Fitness First, Sylvania, in New South Wales, he claims, working for a minimum of 38 hours per week. He is married and has three older children, one of whom still resides at home.
Prior to the motor accident, the claimant was active, employed, and fit. This included playing tackle rugby league in a Masters Competition and, running, boxing, playing golf and working as a personal trainer. The claimant prided himself on his physical and mental fitness as well as his ability to pursue a career as a personal trainer.
After leaving school at the age of 16, the claimant qualified as a chef. The claimant then moved into the sales of kitchenware and stayed in sales and sales management for 30 years until May 2018.
Between 2013 and 2018, the claimant commenced working towards a career as a fitness trainer. During that period, he was working for Uber Bar Tools, and he worked part-time performing personal training classes and one-on-one training. The claimant did not earn a lot of money in those roles but says he built a clientele. He became a qualified personal trainer and his earnings in this role, he says, are reported in his tax returns.
His pre-motor accident medical history included medication for gout and leg pain on occasion. In 2009, he underwent a bilateral hip replacement (titanium) which temporarily impacted on his ability to exercise.
THE MOTOR ACCIDENT
On 4 December 2018 at 8:15 am, the claimant was travelling westbound on the M7 Motorway at Eastern Creek. He stopped at the Wallgrove Road exit due to traffic build up, at which time a truck driven by the insured failed to stop and hit his vehicle from behind at alleged high speed. He claims his vehicle was shunted into the next lane onto the median strip. The airbags did not deploy but his vehicle was written off due to the damage. Both police and ambulance attended the scene, but the claimant returned home following an assessment by ambulance officers.
On 5 February 2019 the insurer accepted liability.
On 5 December 2018 the claimant attended Miranda Family Medical Centre for an ultrasound on his right calf due to ongoing pain since the accident. It indicated a deep venous thrombosis. A radiology report dated 28 December 2018 stated that an ultrasound had revealed a 100 mm long segment of occlusive thrombosis including a vein within the soleus muscle which extended up 100 mm below the knee crease. Various investigations of his cervical spine revealed spondylitic changes, significantly an acute disc herniation at C3-C4 which is causing a degree of central canal stenosis. Similar changes at C6-7 due to a disc herniation were noted as was foraminal stenosis on the right at C5-C6 and on the left at C6-7. These changes were found to account for the claimant’s cervical pain and radicular arm symptoms. Spondylitic changes were also found in the lumbar spine, which the claimant says likely account for his symptoms. Also, an x-ray of the right wrist revealed mild degenerative changes including an 8 mm subarticular cyst at the base of the second metacarpal.
On 16 June 2019, the claimant was admitted to Prince of Wales Private Hospital where he received a C3-4 anterior cervical discectomy and total disc replacement. He also underwent bilateral C7 nerve block and right C6 nerve blocks, performed on 10 and 17 February 2020, respectively.
THE CLAIM
10.The issues identified for consideration in the determination of this matter are as follows:
(a) Injuries sustained in the motor vehicle accident.
(b) Extent of disabilities sustained.
(c) Quantum of non-economic loss.
(d) Quantum of economic loss (past and future).
11.The claimant claims the following injuries were sustained as a result of the accident:
(a) Soft tissue injury to the neck.
(b) Soft tissue injury to the lower back.
(c) Soft tissue injury to the right hand.
(d) Soft tissue injury to the right leg.
(e) Soft tissue injury to the left elbow.
(f) Whiplash disorder.
(g) Thrombosis in the right calf.
(h) Adjustment disorder.
(i) Post-traumatic stress disorder.
(j) Psychological sequalae.
12.He claims to suffer a range of ongoing disabilities as a result of the motor accident to which I have had regard, and which are set out in his written submissions.
13.The insurer concedes the claimant’s entitlement to damages for non-economic loss. However, it does not concede that the claimant suffered all the injuries alleged. Specifically, it disputes that the claimant suffered injuries to his lower back, right arm, right hand, right leg, left elbow, right calf, and disputes the significant psychiatric injury claimed. In support of its disputation, it relies on the following facts:
(a) The claimant first attended his general practitioner, Dr Rahman, on the day following the accident and reported symptoms of muscular pain in the neck, right shoulder, and right calf.
(b) The claimant was seen by Dr Wallace, Orthopaedic Surgeon, in February 2019. He obtained a history from the claimant and noted that he had previously been treated for osteoarthritis at the acromioclavicular joint in his right shoulder. He found no evidence of radiculopathy and recommended a home exercise program.
(c) The claimant underwent MRI scans to the cervical spine, demonstrating multi-level degenerative changes with a disc protrusion and minor retrolisthesis noted at C3-4, left sided foraminal narrowing due to uncovertebral arthropathy, further minor bulging at C4-5, uncovertebral and facet arthrosis at C5-6 and left sided disc/ridge osteophyte compass associated with flattening of the left ventral surface of the cord at C6-7. He also noted likely irritation of the right C6 and left C7 nerve roots.
(d) The claimant was referred to Dr Reddy, Neurosurgeon. A right C6 and left C7 nerve root sleeve injection was arranged, and the claimant did not experience any anaesthetic or durable benefit.
(e) In March 2019, Dr Synnott, Psychiatrist, had a discussion with the claimant’s general practitioner, Dr Rahman. Neither considered the claimant had post-traumatic stress disorder. Dr Synnott opined that the claimant had symptoms consistent with an adjustment disorder with anxiety and a depressed mood. His condition had a good prognosis.
(f) In May 2019, the claimant consulted Dr Reddy, Neurosurgeon, and surgical management was recommended.
(g) In June 2019, Dr Reddy performed surgery in the form of a C3-4 discectomy and disc implant posterior element resection at C2-3 and anterior cervical discectomy and fusion at C5-6 and C6-7.
(h) Further spinal injections were administered in February 2020.
(i) In May 2020, Dr Farrar, Psychiatrist, obtained a history that the claimant was able to continue working as a personal trainer, training daily but with reduced strength. Dr Farrar suggested that he had post-traumatic stress disorder.
(j) The insurer accepts that the claimant sustained a soft tissue injury to his neck and the subsequent spinal surgery, which I have set out above, was causally related to the accident. In terms of the ongoing effects of the claimant’s orthopaedic injuries, it relies on the opinion of Dr Alan Home, Occupational Physician, who accepts that the claimant is no longer fit to work full-time as a personal trainer, however, he believes that the claimant is capable of part-time work as a personal trainer up to 24 hours per week.
(k) Alternatively, the insurer relies on the claimant’s ability to perform full-time work in a sedentary role, working as a sales representative or sales manager, as he had in the years prior to his commencing work as a personal trainer.
(l) It contends that any accident-related psychiatric injury, which it does not accept is post-traumatic stress disorder, does not impair the claimant’s capacity for work.
14.The claimant relies upon the insurer’s concession that he sustained a soft tissue injury to his neck and subsequent spinal surgery at C2-3, C5-6 and C6-7 as they are causally related to the accident. He said he thinks he sustained an adjustment disorder with anxiety and depressed mood, as well.
15.He submits that it does not really matter for the purposes of my assessment whether the claimant sustained the injuries that remain in dispute (musculoligamentous injury to lower back, right hand, and left elbow, and/or thrombosis in the right calf.) He submits, however, that there is ample medical evidence for the thrombosis in the right calf and the musculoligamentous injury to the lower back.
16.The medical evidence has been referred to by the parties in detail in their submissions and was also the subject of detailed oral submissions. I am satisfied that this establishes that the limitation occasioned by the claimant’s neck injury is sufficient to render him incapacitated to participate fully in his work as a personal trainer, and arguably, in his previous work as a sales consultant.
17.Indeed, there is no dispute between the parties that the claimant has disabilities by reason of pain and limitation of movement in his neck. He complains further of constant pain in his neck and back, radiating pain from his back to his legs, and numbness and shooting pain in his right arm, weakness in his right-hand grip, reliance on medication to alleviate pain, reduced ability to lift, carry, push and/or pull objects (which I note would be essential integers of his work as a personal trainer), difficulty sitting, standing, and walking for extended periods, anxiety, difficulty sleeping, stress, frustration and depression, anxiety and psychological sequalae.
18.The claimant points to the fact that Dr Home, upon whose opinion the insurer relies, is consistent with a vast majority of the medico-legal evidence served by the claimant to support his claimed disabilities. In his written submissions dated 9 March 2022, he sets out in detail the evidence upon which he relies and to which I have had regard but will not set out here.
19.Given the reliance upon Dr Home’s opinion it bears some scrutiny.
20.Following a review of the material before him in an examination from 3 June 2021, Dr Home was satisfied that the mechanism of the accident force could cause a neck injury, including soft tissue whiplash injury and aggravation of underlying degenerative changes leading to radicular symptoms and the necessary multi-level surgery.
21.He opined that the medical treatment since the injury had included an early period of physical therapy, subsequent surgery and post operative supervision of exercise. He noted that the claimant being a personal trainer was aware of fitness techniques and was performing home exercises.
22.On examination he observed marked stiffness in the neck, and motion in all ranges as expected following extensive spinal surgery. He noted the pre-existing medical complaints including bilateral hip replacement, previous right knee arthroscopy and previous medical management of gout, however, he was physically well before the accident.
23.He considered the treatment that the claimant had undergone was appropriate and was based on his understanding of the medical condition and review of the claimant’s medical file, including the post-surgical management.
24.He considered that the accident had rendered his previous degenerative neck condition symptomatic and led to the significant ongoing symptoms caused by the incident for which surgical management was required. That phenomenon gave rise to the causal relationship between the subject motor accident and the resulting symptomatic pathology and treatment.
25.He noted the persisting incapacity on certain activities of daily things such as sitting, walking, heavy manual lifting, overhead work, and sleep, which he detailed in the body of his report and to which I have had regard, chiefly that he had very limited tolerances for sitting and standing and weight bearing.
26.He noted that the claimant had returned to part-time work since the accident and that his work had reduced. He considered that the claimant was fit to perform part-time work taking into account his chronic pain symptoms and restricted spinal mobility, sleep pattern and symptoms of general fatigue. His finding was that it would be reasonable to determine a capacity for part-time work up to 24 hours per week in the longer term. In no way did he say that the claimant had capacity for that at the time of his examination of him, or indeed, definitively. He considered that the claimant could continue to work as a personal trainer supervising the performance of individuals.
27.He considered the prognosis from the physical viewpoint that his physical injuries had reached maximum medical improvement and would consider his spinal cervical spine condition as stable.
28.He had regard to the notes of the claimant’s treating surgeon, Dr Raj Reddy, in his various letters to the claimant’s general practitioner, noting optimism with respect to the claimant’s recovery at first, but noting the ongoing pain symptomology that the claimant was experiencing in the course of his recovery.
PARTIES’ SUBMISSIONS
Non-Economic Loss
29. The claimant submits that his disabilities have been life changing. His physical and mental ill health should not be underestimated in compensable terms in 2022. He submits care must be taken not to duplicate or double count matters in non-economic loss and economic loss terms. However, the calculation of economic loss does not take into account the mental trauma of the loss of career, partial loss of a career, loss of opportunity or a reduction in earning capacity.
30. The claimant submits his disabilities are consistent with the report of Dr Home and the claimant’s treating doctors and medico-legal opinions. He relies specifically on the following:
(a)There is a marked stiffness in the neck motion in all ranges, as expected following extensive spinal surgery (Dr Home).
(b)The incident has rendered his neck symptomatic and lead to significant ongoing symptoms caused by the incident for which surgical management has been required (Dr Home).
(c)The claimant is not fully independent in activities in self-care (Dr Dryson).
(d)The claimant has surgical scarring on the right side of his neck (Dr Dryson).
(e)Markedly restricted movement in both shoulders (Dr Dryson).
(f)Low back pain (Dr Dryson).
(g)He will probably need to see rehabilitation providers and specialists once a year for three years (Dr Bentivoglio).
(h)He has a need of pain relief (Dr Bentivoglio).
(i)He has ongoing head and neck pain and right arm brachialgia as well as weakness and left arm pain as well as pain in the back and DVT on the right side (Dr Bodel).
31. The claimant relies on his various mental health symptoms including:
(a)Ruminations about being worthless and hopeless (Dr Rastogi).
(b)Hypervigilance and arousal (Dr Rastogi).
(c)Initial mental insomnia (Dr Rastogi).
(d)Ongoing panic attacks (Dr Rastogi).
(e)Marked avoidance of places and situations (Dr Rastogi).
(f)Ongoing flashbacks and nightmares (Dr Rastogi).
(g)Social withdrawal and poor frustration (Dr Rastogi).
(h)Guilt, overwhelming sense of failure (Dr Rastogi).
(i)Resentment and disappointment in self (Dr Rastogi).
(j)Lack of intimacy and magnifying sense of failure (Dr Rastogi).
(k)Excessive fears and sense of despair (Dr Rastogi).
32.He claims non-economic loss in the amount of $400,000.
33.The insurer accepts both the causal relationship between the claimant’s spinal surgery and his experiencing adjustment disorder with anxiety and depressed mood. It notes that he continues to work as a personal trainer and had several pre-existing medical complaints including previous bilateral hip replacements, previous right knee arthroscopy and a previous medical treatment of gout. At the age of 57, he has another 27 years life expectancy. It disputes the entitlement to non-economic loss in the amount of $400,000 on the basis of a decision awarding an equivalent amount to a 66-year-old woman who sustained multiple broken bones and a right leg amputation (Verhagen v GIO [2021] NSW PIC 302). It accepts that $150,000 is towards the lower end of an acceptable range for non-economic loss but says taking all these matters into account it is a reasonable assessment for damages of non-economic loss.
Past Economic Loss
34.The claimant disputes the insurer’s approach to the assessment of this head of damage and says that his prospects at succeeding as a self-employed personal trainer were significantly more probable than the insurer’s expert gave him credit. This was based on historical earnings, his reliability, experience, qualifications, and talent.
35.The claimant points to a number of matters which separate the two accountant’s reports (Furzer Crestani, relied on by the claimant and Vincent’s, relied on by the insurer) which include historical earning capacity of the claimant, evidence of earnings of a self-employed personal trainer in the short period from May 2018 to December 2018, his realistic prospects as a self-employed trainer taking into account his experience and the hours he was prepared to work and his qualifications, his currently likely nett week earning capacity, his likely residual earning capacity in March 2018 and the prospects and contingencies for the next 10 years including vicissitudes.
36.He tables his nett weekly income for the financial years ending 2015-2018 and submits that his average nett weekly income for the 2016-2018 years is $996.
37.The claimant relies on the Furzer Crestani calculation of 31 May 2021 of $145,604 plus an ongoing loss from 1 June 2021 at $1,311 nett per week.
38.The claimant says that he has been limited in the hours he was able to work since the motor vehicle accident due to the injuries he sustained, the damages for which he calculates as follows:
(a) Pre-injury earnings - $1,125 per week for 38 hours = $29.60 per hour.
(b) He is only working six to eight hours per week due to injuries.
(c) Therefore, assuming seven hours per week at $29.60 per hour = $207.20 per week.
(d) This is to be deducted from $1,125 per week which gives a loss of $917.80 for the weeks since the motor vehicle accident until assessment.
(e) Although, he claims superannuation at 11.5%, he concedes his earnings as a self-employed personal trainer do not attract such an award.
(f) QBE has paid statutory payments to the ATO in the amount of $10,000.
39.The insurer makes the following submissions with respect to the claimant’s entitlement to past economic loss:
(a) For the four years ending 30 June 2018, being those four years immediately prior to the accident, the claimant’s personal exertion income average was $71,110 gross per annum.
(b) For the year ended 30 June 2019 the claimant’s personal exertion income was $31,612.00 gross per annum. However, in that financial year it was the first year that he worked solely as a self-employed personal trainer and the year of the accident.
(c) In the year ended 30 June 2020, being the year after the accident, the claimant’s personal exertion income was only $331.
(d) The claimant says he now works six to eight hours per week.
(e) The insurer submits that I should place no reliance on the Furzer Crestani report which is predicated upon assumptions regarding the claimant’s actual earnings which are based on the handwritten document prepared by the claimant in December 2020, setting out personal training sessions he undertook during the week ending 15 November 2018, being two weeks prior to the accident. It submits that this contemporaneous note is not consistent with the available contemporaneous financial records of the business. It relies upon the opinion of Lance Kahler, Chartered Accountant and refers to paragraph 4.17 – 4.32 of the Vincent’s Report dated 3 June 2021. It submits that based on the claimant’s actual personal training income in the months prior to the accident, he would have derived a nett profit of around $29,132 before tax for the year ended 30 June 2019 had the accident not occurred, compared with the amount of $65,073 before tax as assessed by Furzer Crestani.
(f) It submits that the claimant’s past economic loss from the date of the accident should be assessed as follows:
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(g) Thereafter, it submits that economic loss should be assessed at the rate of $830.00 nett per week until assessment.
Fox v Wood
40.The insurer has paid statutory benefits in the sum of $39,603.26 as of 2 November 2021.
41.The parties agreed on Fox v Wood damages in the sum of $2,393.
Future Economic Loss
42.The claimant stated that but for the accident his intention was to complete his working life as a personal trainer. Therefore, his pre-accident weekly earnings in a sedentary role should not be used as a guide as to what his income would be but for the accident.
43.The claimant relies upon Dr Dryson who states that the claimant may be able to work 10 hours per week for sedentarily work only. Dr Rastogi highlights the claimant’s mental issues which probably further adversely affect him impact his earning capacity at least at this stage. Dr Home states inter alia that from a fiscal point of view the claimant is fit to perform part-time work taking into account his chronic pain symptoms, restricted spinal mobility, sleep pattern and symptoms of degenerative fatigue.
44.It is on this basis that he says that the claimant has a capacity for part-time work up to 24 hours in the longer term. He could continue as a personal trainer supervising performance of individuals but will be restricted from heavy lifting and overhead lifting in the long-term. He has reached maximum medical improvement. The claimant submits that this opinion of Dr Home is qualified and inconsistent with the claimant’s disabilities and the claimant’s treating medical practitioners and medico-legal practitioners. I disagree. Dr Home’s opinion is optimistic, but it does take into account that the claimant has had serious disabilities which preclude him from performing the relevant tasks of a personal trainer. Working up to 24 hours per week is only in a supervisory capacity, which, as a personal trainer is largely the role. I do not think he overstates the extent of the claimant’s possible ability, however, the difference between 10 and 14 hours is really only six extra sessions per week, assuming a client is worked with for a half hour at a time.
45.The claimant submits that I should conduct my assessment as follows:
$1,837 nett per week ÷ 40 hours = $45.92 per hour
·at 4 hours per week = $183.70.
·at 12 hours per week = $551.04
·at 24 hours per week (which the claimant submits is wholly unrealistic) = $1,102.08 per week.
46.He submits that the loss of earning capacity can therefore be understood as follows:
(a)$1,653.30 per week x 5% (10 years, 5% tables) (412.9) = $682,648.00.
47.He accepts that no account has been taken of any superannuation loss because he is a self-employed person.
48.He submits no vicissitudes should be taken into account as he only has 10 years working life remaining and has good rather than difficult prospects.
49.The insurer submits that given the claimant’s self-employed business was in its infancy, the Vincent’s report provides me with the assistance by identifying statistical average income for fitness trainers over the age of 45 years in Australia, at a statistical average of $53,196, which the insurer says that I would round up to $54,000 gross per annum. It submits I would prefer the evidence of Vincent’s because that report takes into account the claimant’s actual as opposed to theoretical income as a personal trainer prior to the subject accident. It submits that the claimant’s earnings beyond the 30 June 2021 period of $84,941 should be assessed at a rate of $830 nett per week for the remainder, less the claimant’s actual earnings during that period. It submits that the medical evidence would suggest that the claimant has been working a minimum of 50 hours per week from the date of 1 July 2021, and therefore, those 10 hours at the amount of what appears to be a rate of $21.84 an hour should be deducted, so that the loss is from that $830 per week divided on a 38 hour per week basis (equals $21.84/hr) a loss of 28 hours per week equating to $611.52. Applying that figure from 1 July 2021 to the date of my assessment equals 66 weeks multiplied by $611.52 = $40,360.32. Combining this with the $84,941 claimed in the Vincent’s report amounts to $125,301.32.
50.The insurer addresses the findings of the Furzer Crestani report and says there is no objective evidence to support a finding, so it is likely that but for the accident the claimant would have derived the income levels therein referred to and makes the following observations in support of its contention:
(a) The claimant’s actual earnings were around $29,000 before tax as a self-employed personal trainer at the time of the accident.
(b) The statistical average weekly full-time income for a fitness instructor is about $45,000 before tax per annum.
(c) The claimant’s actual income from personal exertion during the four years immediately prior to the year of the accident is an average of around $71,000 before tax per annum.
51.The insurer submits that the claimant’s most likely future circumstances had he remained uninjured are:
(a) He would have continued to work as a self-employed personal trainer until his retirement at 67.
(b) He would have earned a nett weekly income of around $990 per week.
(c) The claimant has a residual earning capacity of up to 24 hours per week as a personal trainer or full-time in a suitable sedentary occupation.
(d) And the appropriate discount for vicissitudes is 15%.
52.The insurer’s primary submission is that the claimant has a residual earning capacity of around $1,098 nett per week in a full-time sedentary occupation. This is based on the claimant’s average annual personal exertion income during the four years prior to the accident which is around $71,000 gross per annum.
53.As he worked when he was in sales and only commenced personal full-time training at seven months prior to the accident and given his experience, there is no reason why he would be unable to obtain employment in a sedentary role likely in sales.
54.In the alternative, assuming he continues to work as a personal trainer, calculating a loss of $635.00 nett per week reflecting a reduction from 38 working hours per week to 24 hours per week over a period of 10 years to retirement at 67, and applying a discount of 15%, the insurer submits that a reasonable amount for damages is $128,102.
55.As the claimant was self-employed at the time of the accident, he was likely to remain so and so there is no loss on superannuation.
56.It relies upon the fact that during the hearing the claimant stated that he could only work between six to eight hours per week. Dr Anna Farah, treating psychiatrist, in her report to Dr Rahman, GP, dated 10 July 2020, stated “[the claimant] has commenced in a position as a personal training manager, 10 hours per week. … He remains fit for work for up to 20 hours per week and will see you for increased work hours up to 30 hours per week, which appears reasonable from a psychiatric perspective.”
57.Dr James Bodel, Orthopaedic Surgeon, in his report dated 5 August 2020, said that the claimant could continue in a role as a personal trainer but in a modified fashion.
58.Dr Anna Farah, treating psychiatrist to Dr Rahman in her report dated 27 November 2020, said that the claimant remains fit for work up to 10 hours per week.
59.A Certificate of Capacity completed by Dr Rahman on 4 March 2021 certified the claimant fit for work for 12 hours per week.
60.Dr Dryson, in a report dated 23 June 2021 said that the claimant would be capable of working 10 hours per week.
61.Dr Bentivoglio, Orthopaedic Surgeon, in a report dated 2 June 2022 was silent as to the number of hours for which the claimant had capacity.
62.Dr Home accepts that the claimant is no longer fit to work full-time as a personal trainer, however, believes that he is capable of part-time work up to 24 hours a week in that role.
63.Therefore, based on the medical evidence, the insurer submits that the claimant’s residual earning capacity is in the range of 10-24 hours per week.
64.As to future economic loss, the insurer submits that on the medical evidence the claimant is capable of working between 10 to 24 hours per week. It relies again on the Vincent’s report and the most likely future weekly earnings, which I have set out above. It cavils with the projections of the Furzer Crestani report on the basis that it is more than double the sum of average weekly earnings for a fitness trainer in Australia and more than double the claimant’s pre-accident taxable income when he worked in sales. The assumptions and conclusions of the Furzer Crestani report, it submits, should be rejected, or given little weight. The report provides me, it submits, with little to no assistance as it does not consider the claimant’s actual income from pre-accident earning capacity as a personal trainer, and it is based on assumptions predicated on speculation only. The insurer submits that an appropriate range for future economic loss is $98,786.47 to $197,572.92 which is calculated as follows:
(a) Residual capacity of 24 hours/week = Loss of 14 hours/week = $305.76 npw x 380.1 (9 year multiplier) x 0.85 = $98,786.47.
(b) Residual capacity of 10 hours per week = Loss of 30 hours/week = $611.52 npw x 380.1 x 0.85 = $197,572.92.
65.In relation to the claimant’s capacity to work, it relies on the opinion of Dr Home who said that the claimant could work 24 hours per week. The claimant, although he denied he could work 24 hours per week conceded he had never tried to work 24 hours per week. It is therefore the insurer’s primary position that the claimant should be awarded $98,786.47.
66.However, at the assessment conference, I raised the possibility of awarding a buffer for future economic loss. The insurer agrees that this may be the appropriate method to compensate the claimant as his business was in its infancy at the time of the accident and precise calculation of economic loss may be impossible in the circumstances. It submits that if I were minded awarding a buffer, then in the interests of compromise, it would submit that an appropriate allowance for future economic loss is $150,000.
67.The parties agree that there can be no allowance for superannuation as the claimant was and continues to be self-employed.
REASONS
Non-economic loss
68.There is no doubt that the claimant is no longer the “bionic” man that he was formerly. While he has made a valiant attempt to return to personal training, he will not enjoy the same level of strength and fitness that he did formerly. This has no doubt diminished his enjoyment of life as has his living with the pain and low mood, fatigue, despondency, and irritability which accompanies it.
69.The claimant is presently in the latter years of employment, and I do not expect that he would work as a personal trainer much beyond 65 years of age. I did not consider that to be the same demand for personal trainers in their 60s as in their 20s and 30s. But this does not diminish the benefits and enjoyment of life that being fit and strong would bring the claimant. I have set out above the activities the claimant formerly enjoyed, which he no longer enjoys.
70.The insurer has submitted that $150,000 is an appropriate award based on an undisclosed survey of awards given by Members of this Commission. The claimant submits $400,000 is appropriate.
71.I consider the latter too generous, and the former to be closer to the appropriate award. In my view, an appropriate award considering the matters which would inform this head of damage is $200,000.
Past economic loss
72.I have had regard to the Vincent’s Report and note that the author was instructed that the claimant had returned to work since the accident. He had ceased working at Fitness First, Sylvania on 22 March 2020 due to the COVID19 pandemic, however, he continued to undertake personal training sessions from his home gym. He was then undertaking a limited number of personal training sessions at BodyFit Miranda but did not have to pay any rent for the use of the gym facilities there. He was in receipt of Job Keeper payments during the pandemic, however, ceased when he started receiving payments from QBE Insurance which commenced in May 2020. He was instructed that the claimant’s intention was to expand his personal training business such that he would undertake between 60 and 80 half hour personal training sessions per week, recruit additional schools to participate in his student boxing program on school sport days and commence group corporate training sessions from employees at large corporations.
73.I do not consider it plausible that the claimant would have been taking on clients between the number of 60 and 80 per week for half hour sessions but for the accident. This would require an extraordinary turnover of business that would mean that the claimant would be working between 50 to 60 hours per week realistically understood given the restrictions on times when persons are available for training, chiefly before and after work, on the weekends and less so during the day.
74.The only evidence of the claimant’s pre-accident capacity was the contentious handwritten note for the week ended 15 November 2018, not written contemporaneously. The claimant reportedly charged $40 per half hour for individual training sessions and conducted 45 or such sessions with one session at $100 per session and three school boxing sessions earning $2,410.00 per week.
75.The author of the Vincent’s Report, Mr Kahler, remarks that the document produced by the claimant for the week ending 15 November 2018, if it were to be an accurate record of the personal training sessions he actually undertook that week and representative of the personal training sessions he was conducting on average in the months leading up to the accident, then he should have earned a personal training income of around $2,400 and that in the months prior to the accident he should have been earning an average personal training income of around $10,320 per month. However, his income into his bank account for November 2018 only identified deposits for personal training of $3,922. For the six months prior to the accident the personal training income deposits to the claimant’s account identified averaged around $4,368 per month.
76.While the claimant may have conducted other personal training sessions and collected cash for them, I do not consider it appropriate that I take those into account in circumstances where the claimant does not have records of the work that he has done. Likewise, in the absence of diary entries I treat the record for the week ending 15 November 2018 with caution, by virtue of the fact that it is not contemporaneous, and it is not supported by any other corroborative documents, including monetary records. Indeed, I am persuaded that this document overstates the number of half hour sessions that were conducted during that week, especially in the absence of being able to provide diary entries which I would expect a personal trainer to have available to him to show the appointments which he had kept, especially considering how busy he would have been with 45 sessions. The failure to produce or maintain some such records leads me to give little weight to any assessment predicated upon it. As the Furzer Crestani report is heavily predicated upon it, I am less inclined to the views therein expressed. I prefer the conclusions in the Vincent’s Report on this head of damage as it is better premised on verifiable facts.
77.I therefore award $84,941 until 30 June 2021 and $830 nett per week until today, which equates to 65 weeks and 5 days, which I will round up to 66 weeks.
78.Accordingly, I award, $139,721 for past economic loss.
Future economic loss
79.While maybe capable of discernment on the basis of an accounting exercise to determine past economic loss, the task or determine in future economic loss is not as simple.
80.I am satisfied that had the accident not occurred, the claimant would have put his energies into developing a personal training business and that business would have been his sole source of income. I am not satisfied that the claimant would have been able to maintain a successful personal training business much beyond the age of 65.
81.As I have early stated I am not persuaded that the claimant would have conducted the number of personal training sessions that he believed he would have. I am more inclined to the view that he would have been able to maintain a successful personal training business attending to clientele between 30 and 40 hours a week.
82.There is no dispute between the parties that the claimant’s injuries have reduced his capacity for this work. They have also reduced his capacity to return to sales and sales management, chiefly, due to his sitting and standing tolerances. Nevertheless, as the claimant correctly points out, the assessment I am to make is with respect to the loss as it is assessed on the basis of the claimants most likely future circumstances, which, I am satisfied does not include a return to work in a sales or sales management capacity.
83.Dr Home does not consider the claimant to hold capacity to work be able to work beyond three days / 24 hours a week. Indeed, I am persuaded that his ability to work would fluctuate between his stated eight hours a week and 24 hours a week depending on clientele, how regular they sought training, the type of training that they wish to undertake, and the hours at which they sought to train. It is quite possible if the claimant were to develop a business where he was working with clientele at times optimal for his symptomology. For example, mid-morning, mid-afternoon and early evenings 4 to 5 days a week. This may mean that the claimant does have capacity to work up to 24 hours and manage his symptomology. I therefore consider it correct to accept the assessment that the claimant does have the capacity to work up to 24 hours a week. This does not mean that he would have that capacity every week. Some weeks he may have no capacity and other weeks he may, in fact, have in excess of 24 hours a week.
84.In relation to the assessment of damages “the hypothetical may be conjectured”: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 643. See, also, Badenach v Calvert (2016) 257 CLR 440 at [38]-[41]. In accordance with this principle, I am persuaded that it was probable that but for the accident the claimant’s most likely future circumstances were that he would have worked up to 40 hours a week.
85.While there may be some standardisation to the fees the claimant would charge for his personal training services, I do not have a proper understanding of the cost of providing their services and the profit that the claimant would be making. I would expect that the claimant would have fluctuating costs depending on the type of personal training that he would undertake. I am satisfied that the claimant would have earned about $25 - 30 per hour nett.
86.By reason of the injuries that he sustained in the accident, and the incapacity which flows from the injuries have occasioned, his capacity has been reduced by that amount which is not readily capable of immediate discernment. I do not consider it appropriate that I aggregate the difference between 24 and eight hours a week and stipulate that is the number of hours the claimant will work in future. While the exercise with which I am tasked is hypothetical, there is no evidentiary basis to support such a rudimentary conclusion as to the claimant’s economic prospects as a consequence of the accident.
87.I do consider it appropriate to apply the usual vicissitudes of 15 - 20%.
88.Because the task of determining of damage is so imprecise, I am persuaded that it is appropriate to award a buffer for this head of damage. I have taken the various matters to which I have referred into account, and in doing so I consider an appropriate award in the form of a buffer is $225,000.
Assessment of Damages Summary
89.In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is:
Non-Economic Loss $200,000
Economic losses
· Past loss of earnings (including Fox v Wood) $142,114
· Future loss of earnings $225,000
Total Damages Assessed $567,114
Costs and Disbursements
90.I have assessed the Claimant’s legal costs and disbursements in the amount of $65,435.06.
Conclusion
91.In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is:
(a) The amount of damages for the claim is $567,114.
(b) The amount of the claimant’s costs in the matter is $65,435.06 inclusive of GST.
Legislation
92.In making my decision I have considered the following legislation and guidelines:
• Motor Accident Injuries Act 2017
• Motor Accidents Compensation Regulation 2015
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