Donaldson v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Donaldson v QBE Insurance (Australia) Limited [2023] NSWPIC 655
CLAIMANT:	Tristan Donaldson
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Elyse White
DATE OF DECISION:	6 December 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 20 year old claimant made a claim for nervous shock common law damages arising out of the motor accident which claimed the life of his father; liability admitted wholly; entitlement to damages for past and future economic loss; claimant entitled to future reasonable treatment expenses for life; evidence did not support claimant’s claim he lost his licence caused by the accident; past loss assessed as a buffer; most likely future circumstance but for the accident the claimant may have worked with his father in the field of refrigeration mechanics; satisfied future economic loss can only be assessed as a buffer; Held – assessment of damages issued in accordance with section 7.36(1) in the sum of $160.000 plus costs as agreed.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injureis Act 2017 Assessment of the claim for damages made in accordance with s 7.36 of the Act in the sum of $160,000 plus costs as agreed in the sum of $34,759.19

STATEMENT OF REASONS

INTRODUCTION

The claimant, Mr Tristan Donaldson has made a claim for nervous shock common law damages arising out of a motor vehicle accident on 22 November 2018 which claimed the life of his father.
This insurer, QBE Insurance (Australia) Limited, wholly admitted liability for the accident.
The claim is limited to damages for past and future economic loss. Mr Donaldson is entitled to reasonable future treatment expenses for accident-related injuries for the rest of his life.

FIRST ASSESSMENT CONFERENCE

An in-person assessment conference was held on 16 August 2023. At the commencement of that hearing, the insurer sought to rely on educational material provided to them the day before which the claimant objected to, however, at the same time, Mr Donaldson sought to rely on a letter from the claimant’s employer commenting on his work performances.
After consideration was given to both partys’ late provision of material, and an agreement the insurer would cover the throw away cost of the claimant for the day, approval was granted to adjourn the assessment conference.
After a further telephone conference, the parties agreed to list the assessment conference at the Personal Injury Commission (Commission) which proceeded without incident.

ISSUES THAT AROSE

The following issues arose:
(a) has the claimant suffered an impairment to his work capacity because of the accident, which is productive of past economic loss?
(b) What is the claimant’s most likely future circumstances but for the accident which entitles him to damages for future economic loss?

BACKGROUND

Mr Donaldson is 20 years old.
He attended Mary McKillop High School and completed year 10. His mother says he was diagnosed with ADHD [TR1] in year 7. She had observed her son was acting out and was becoming disruptive at school. She arranged for him to see Dr Adam Buckmaster, a paediatrician, for treatment. He was sent to The Haven Education Centre at Wamberal (The Haven) where he completed years 7 to 9. This was a small school and had the ability to administer medications. In year 9, Mr Donaldson was enrolled back in a mainstream school.
At the time of his father’s death, he was 16 years old. At this time, he lived with his parents and younger sister, Rhiannon.
On the day of the accident, his father was crossing the roadway out the front of the family home. The insured driver, crossed to the wrong side of the road and killed his father on impact.
At the time, Mr Donaldson was fishing with a friend and uncontactable. Approximately one hour after the accident, he arrived home to witness a crime scene where his father’s body remained lying on the road. After being told of his father’s death, he says he was in extreme shock. He was completely overwhelmed with grief. He says he felt numb. His mother and sister were not coping.
He noticed after a few months, his behaviour changed. He describes having arguments with his mother. He says he started consuming alcohol and used cocaine and marijuana. He explains he wanted to feel numb, so he didn’t think about losing his father. He says he was constantly angry. His mother confirms this change in behaviour. Neither her son nor daughter returned to school in the year of the accident.
Mrs Donaldson describes a close and loving relationship between her husband and son. She was concerned about her son’s mental state as he had become suicidal. She said she had not known her son to drink or take drugs before her husband’s death.
The insurer has accessed several educational documents which reveal, prior to the accident, Mr Donaldson missing a significant amount of schooling due to suspensions following aggressive conduct towards fellow students. He experienced difficulties with tasks requiring elaborate oral and written responses.
The records from Mary McKillop High School confirm Mr Donaldson left that school after only eight months. After enrolment at The Haven, Dr Buckmaster recorded his patient had ongoing difficulties with the diagnosed ADHD and oppositional defiant nature.
Mr Donaldson consulted Dr Buckmaster in the company of the deceased only five months before this accident. The doctor records he was not interested in school and was looking forward to beginning an apprenticeship in either electrical or mechanical work. He told the doctor he had done some work experience in these fields. His father was a refrigeration mechanic and he always wanted to follow in his footsteps.
Dr Buckmaster recommended Mr Donaldson continue with his ADHD medication at least until he began his apprenticeship which he expected would be in 2019. The doctor saw Mr Donaldson in June 2019 and recorded he was in full time work with an air conditioning company where he hoped to start an apprenticeship.
Although Mr Donaldson did not return to school after the accident, he did achieve his School Certificate. He commenced working full time in early 2019 and was offered an apprenticeship and worked on and off until the current time.

HAS THE CLAIMANT SUFFERED AN IMPAIRMENT TO HIS WORK CAPACITY BECAUSE OF THE ACCIDENT WHICH IS PRODUCTIVE OF ECONOMIC LOSS?

Mr Donaldson says, because of the accident, he has developed serious psychiatric symptoms which has been detrimental to his ability to work and earn money. He is seeking a total incapacity for six months between March and August 2022 at a rate of $600 net per week. In addition, he is seeking a buffer for past economic loss due to his delay in completing his apprenticeship by 12 months. In total, the claim for past economic loss and superannuation is $82,082.
He told me at the assessment conference he was confident around 2025 of participating in another course which would lead to a promotion because he and his long-term girlfriend wanted to purchase their own home.
Mr Donaldson’s current employer has submitted two statements in support of the claim for economic loss and superannuation. Mrs Reine Megalli owns and operates Coldline Refrigeration Pty Ltd (Coldline) which employs technicians and apprentices in the commercial refrigeration and air-conditioning trade.
Her statement dated 16 June 2023 confirms Mr Donaldson was employed as an apprentice with her company from 20 January 2020 to 4 March 2022 at which date his employment was terminated. He was re-employed by her company on 28 November 2022. In her statement Mrs Megalli describes how she meet Mr Donaldson and her impression of him and his history of the accident which killed his father. She explains the reasons that led to his termination.
She does not give detail of when but recalls Mr Donaldson alienating himself from colleagues and a gradual behaviour change, becoming defiant and argumentative. She noticed his TAFE results had declined and when she contacted his teachers they commented, even though Mr Donaldson had a lot of potential, he needed to put in the effort to pass his subjects.
In December 2021, Mrs Megalli became aware Mr Donaldson had lost his licence. Because he needed his licence to attend his place of work and driving was part of his employment duties, her company terminated his employment.
In November 2022 Mr Donaldson was employed again by Coldline and he was able to resit his TAFE modules.
More recently, Mr Donaldson gives a history in a statement dated 25 October 2023 of a further issue at his work in August 2023. He says he was on a job site with a fellow employee when the client contacted Mr Megalli complaining Mr Donaldson smelled like alcohol. The employer has a zero-alcohol policy. He was required to undergo an alcohol and drug test and was issued with a caution letter. He says, notwithstanding this incident, he continues to drink and takes a variety of drugs.
Mr Megalli has made two statements, the first dated 19 June 2023. His impression of Mr Donaldson is like that of his wife. Although he did not know Mr Donaldson before this accident, he was impressed with his desire to follow in his father’s footsteps and pursue a trade in mechanical refrigeration. He says he felt in the beginning, Mr Donaldson put on a brave front but noticed issues with moods and concentration. He started to receive complaints from other tradespersons about his attitude and behaviour. He spoke to Mr Donaldson about his conduct and the struggle he was having with his TAFE course.
It was not until his wife discovered Mr Donaldson lost his licence that a decision was made to terminate his employment. After he recommenced employment with Coldline, Mr Megalli says he observed Mr Donaldson struggling with depression which affected his work.
His second statement dated 26 September 2023 which followed the complaint by a client that Mr Donaldson on the job, smelled of alcohol. He says he reminded him of the company policy of zero tolerance to drugs and alcohol and gave him a stern warning about his behaviour. Mr Megalli issued Mr Donaldson with what he described as a warning letter which is attached to his statement.
In the assessment conference, Mr Megalli told me if Mr Donaldson repeated this behaviour he would “…fire him”. Under cross examination, Mr Megalli admitted he could not instantly dismiss him if this happened again as this would be in breach of NSW current employment law.
The insurer disagrees that Mr Donaldson has established an impairment to his earning capacity because of the accident. They rely of histories given to doctors which confirm, after the accident, Mr Donaldson completed his School Certificate, worked full time until for six months after the accident, managed to secure a mechanical refrigeration apprenticeship and completed the TAFE course. The insurer submits any periods of time off work since the accident are not accident related but rather, driving unlicenced and speeding offences which lead to a loss of licence.
The insurer seeks to demonstrate there was no delay in Mr Donaldson completing his apprenticeship. In fact, his subsequent employer, Mr James Megalli, signed off his apprenticeship early because he was a hard worker and had demonstrated good progress.
Having considered all the evidence, post and pre accident, the insurer argues there is no support for the claimant’s submission he has suffered an impairment to his capacity to work because of injuries he sustained as a result of the death of his father in the accident.
The insurer highlights Mr Donaldson’s behavioural difficulties throughout his schooling. Any wage losses are the result of speeding offences and loss of licence and not related to injuries. As such, any period of unemployment is unrelated to the accident but rather, the actions of Mr Donaldson’s poor driving record which resulted in a loss of licence.

Medical evidence

Both parties briefed professional psychiatric experts to examine Mr Donaldson and give their opinion on the nature and extent of his emotional symptoms. Mr Donaldson’s solicitor arranged for him to consult with A/Professor Michael Robertson. The A/Professor has provided three comprehensive reports dated 1 February 2022, 28 February 2023, and 17 August 2023.
The first assessment was conducted via video conference on 20 December 2021. The A/Professor had a letter of instruction and, records and reports by clinical psychologist Suzanne King.
After taking a history of Mr Donaldson’s diagnosed ADHD and subsequent alcohol and drug use, the A/Professor notes his reports of day-to-day functioning. He further notes a recurrent suicidal ideation and recommends treatment. He concludes Mr Donaldson presents with a chronic major depressive disorder and a substance use disorder.
He believes the previous ADHD had been successfully treated and does not significantly figure in his current clinical presentation. The A/Professor noted work disruption and when asked about future work capacity, felt this would depend on him obtaining and benefiting from appropriate pharmacological and psychological treatment.
The second interview was again conducted via video conference on 28 February 2023. On this occasion, the A/Professor had the benefit of clinical notes from Mr Donaldson’s general practitioners.
By way of update, Mr Donaldson told the doctor he was drinking alcohol in a hazardous fashion. The A/Professor noted he did not display any features of heavy alcohol use or liver disease and did not appear drug or alcohol affected. When asked if Mr Donaldson’s pre-existing condition had been accelerated or exacerbated by the death of his father, the A/Professor says:
42.“While the traumatic grief following the death of Mr Donaldson’s father in the subject motor vehicle accident was a substantial and main contributing factor to Mr Donaldson developing the current depressive illness and substance use problems, the pre-existing vulnerabilities were causal to a lesser degree to his current presentation”.
He continues to opine if his current clinical trajectory continues unaltered, it is more likely than not there will be a diminished earning capacity due to disrupted employment. He concludes “Mr Donaldson requires treatment for his chronic depression”. The A/Professor assessed whole person impairment of 6%.
After the insurer accessed additional pre-accident records relating to his schooling and a letter from his employer, the A/Professor was asked to reassess him on the papers. On this occasion, he was provided with records from the Department of Education. After acknowledging the additional information emphasises the extent of Mr Donaldson’s neuro developmental difficulties in childhood, he does note an improvement in adolescence. He reports on clinical studies and concludes, based on available evidence the circumstances of traumatic bereavement were necessary and sufficient grounds for him to have developed a depressive illness and the recent escalation of substance use.
Initially, the insurer engaged psychiatrist Dr Graham Vickery to interview Mr Donaldson on 6 February 2023 and give his opinion on the nature, extent and cause of his symptoms. After reviewing the documentation provided, Dr Vickery took a history via video and reported on 23 February 2023, that Mr Donaldson had no apparent psychiatric impairment in the clinical examination. He noted the ADHD which he viewed as a vulnerability factor for substance abuse. The doctor concludes there is no relationship between the substance abuse and the accident. Having reviewed all the lay evidence and the medical reports, in particular, the clinical notes and reports from the claimant’s treating professionals, it appears Dr Vickery’s history before and after the accident does not adequately explore Mr Donaldson’s vulnerable childhood leading into adulthood.
As Doctor Vickery retired, the insurer arranged for Mr Donaldson to be interviewed by Dr Tristan Synott, consultant psychiatrist via video conference on 18 September 2023. His report is dated 22 September 2023. The doctor had the advantage of both the insurer’s report by Dr Vickery and all the clinical notes, but also the reports of A/Professor Robertson and the records from the Department of Education and all the statements.
Mr Donaldson told the doctor he drank a case of beer in a week and used occasional cannabis, although his account varied during the interview. He said he had not undergone any mental health treatment in the last three months. Dr Synott notes that due to Mr Donaldson’s vagueness and the discrepancies between his account and information in the documentation, he relied on the medical material rather than his history.
Initially, Dr Synott agreed Mr Donaldson experienced symptoms to meet a diagnostic criterion (DSM[TR2] -IV and 5) of grief, major depressive disorder, poly substance use – alcohol and various substances. However, over time, the doctor believes he no longer warrants a psychiatric diagnosis. He continues to drink excessive amounts of alcohol and currently warrants a diagnosis of alcohol use disorder. He notes there had been no treatment for many months.
In the opinion of Dr Synott, at the time of his father’s death, Mr Donaldson faced challenges but there has been substantial progress in that he completed an apprenticeship, has secured a full-time job and has a good relationship with his mother and partner.
Dr Synott opined Mr Donaldson’s residual psychiatric symptoms are similar to those seen in the broader community in similar circumstances – they are not pathological or aberrant and do not warrant a diagnosis.
He does agree Mr Donaldson was a particularly vulnerable boy. He says compared to other children he was limited in his psychological and cognitive abilities to assess and deal with the ordinary age relevant tasks and challenges children inevitably confront at school and away from school. He goes on to explain that most 16-year-old children understandably lack psychological resilience. The additional issues faced by Mr Donaldson would have substantially increased the chances of him having significant difficulties and responding in a maladaptive manner when compared to most children of a similar age.

Nature and extent of alleged injuries and impact on work capacity

In original submissions, the claimant’s legal representatives submit as a result of the death of his father, Mr Donaldson developed a psychiatric injury. They repeat the opinion of A/Professor Robertson and refer to Mr Donaldson’s statement. The submission states he was unable to return to school.
The submission acknowledges the apprenticeship and the observations made by his employers of a decline in his mental health. There is mention of the termination of employment suggesting this was because of his declining mental health. It is suggested his loss of licence was directly related to his deteriorating mental condition and escalating drug and alcohol use.
I cannot accept these submissions. Firstly, although I accept Mr Donaldson and his sister did not return to school, the accident occurred very close to the end of the school year and the submission fails to mention he achieved his NSW School Certificate.
Secondly, of his own volition, he followed in his father’s footsteps and approached Coldline and successfully secured an apprenticeship. His employment was terminated because he lost his licence. He told me in the assessment conference that this occurred because he had been issued with infringement notices in the mail for a speeding offence and running a red light which cancelled his licence. He agreed this mail, with the infringements, was overlooked in his household. He was unaware of the infringements and that he was driving unlicenced. When he was further stopped by the NSW police, he received a further infringement. This resulted in a loss of licence. As his employers explained in their statements, his employment duties required him to hold a valid driver’s licence. Also, he needed to travel by car to and from home and work which is a one-way hour’s trip. I find no connection between his termination and the state of his mental health.

The NSW Education Departmental records were reviewed by the doctors as summarised above, as well as further statements and submissions by both parties addressing these issues. In response, the claimant prepared submissions addressing this new material dated 9 November 2023.
These submissions repeat the premise of the original submission. There is an attack on the insurer’s position that Mr Donaldson’s pre-existing condition cannot be maintained. The facts emphasise, Mr Donaldson had returned to mainstream school, he had developed normal family and social relationships, he was a particularly vulnerable individual. Dr Synott and Dr Vickery’s conclusions are rejected as inconsistent with the histories given by the employers. It is highlighted that the claimant continues to binge drink, struggles at work, has been cautioned by his employer and Mr Megalli describes his employment situation as precarious.
The amounts claimed for past economic loss have been recalculated as a total incapacity for six months amounting to $20,000 inclusive of superannuation; a buffer of $50,000 - $100,000 inclusive of superannuation for the delay in completion of the apprenticeship; these amounts substantially increase the claim set out in the original submission.
On the other hand, the insurer in their supplementary submission, addresses both these claims by the claimant. Firstly, addressing the termination, the insurer adopts the facts set out in the records from the RMS [TR3] Traffic Record Report which confirms the evidence given by Mr Donaldson at the assessment conference. His licence suspension was due to loss of demerit points and driving whilst disqualified. The insurer submits this unfortunate position was the cause of his apprenticeship being terminated and subsequent unemployment and had no causal relationship to any psychological injury caused by the accident.
The delay in completing his apprenticeship is rejected by the insurer. They repeat the relevant facts set out in the statements by the claimant and Mr and Mrs Megalli. In summary, Mr Donaldson says his apprenticeship should have been signed off in December 2023, three years after commencement. He was hired on 20 January 2020 as a first-year apprentice and had three years of TAFE to complete. Mrs Megalli confirmed his apprenticeship was signed off in March 2023. These dates suggest, if there was a delay, this is limited to two months.
Although the insurer says there should be no allowance for past economic loss, if I am persuaded there has been a delay in the completion of his apprenticeship, this is for six months not 12 months.
Having considered the totality of the lay evidence, both written and oral, and the medical opinions of the medical experts, I accept Mr Donaldson was a particularly vulnerable teenager. The nature of his psychological injury, as a result of the accident, has resulted in an impairment to his work capacity, the extent of which, is productive of economic loss. Dr Synott found Mr Donaldson to be vague and inconsistent with the histories given. When giving his oral evidence, I observed Mr Donaldson to be distant, not fully engaged and not understanding simple questions. Mr Ronzani asked him if was under the influence of alcohol or drugs to which he replied “No”. I also formed the impression by his demeaner he could have been intoxicated but there were no other signs such as the smell of alcohol or instability, to confirm this view. He responded in the same way as Dr Synott found when he reported Mr Donaldson was a man of few words but was pleasant, cooperative, and polite. I accept, because of his vulnerability and due to his limited psychological and cognitive abilities, he experienced difficulties dealing with the death of his father as compared to a normal grieving teenager which was discussed by Dr Synott and A/Professor Robertson. His response has had an impact on his ability to progress with his work in a normal way which has resulted in an economic loss.
His consumption of alcohol is alarming and needs urgent redress. He told me, most evenings after work, he drinks more than 10 beers a night. I asked Mr Megalli if he was aware of this consumption to which he replied “No”. It seems, other than the incident when a client smelled alcohol on his breath, this alarming consumption of alcohol is not directly affecting his week-to-week work capacity in a way that it is possible to calculate an accurate past weekly loss.
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; [2012] NSWCA 13. This is such a case as I do not agree with the claimant’s submissions that the evidence supports a past loss of six months for loss of licence which led to termination of employment or the delay in completion of his apprenticeship.
The insurer has suggested that a reasonable way to assess any past economic loss is to consider the short time he was delayed in completing his apprenticeship. The claimant has nominated a 12-month loss of $20,000 inclusive of superannuation. Using this amount as a guide, I assess as a buffer for past economic loss of $10,000.

WHAT IS THE CLAIMANT’S MOST LIKELY FUTURE CIRCUMSTANCES BUT FOR THE ACCIDENT WHICH ENTITLES HIM TO DAMAGES FOR FUTURE ECONOMIC LOSS?

Mr Donaldson has repeatedly said he always wanted to follow in his father’s footsteps. He is following in his father’s footsteps having completed his apprenticeship in mechanical refrigeration. He works alone. He is entrusted with a company car. He works all over Sydney. He enjoys his work. He is adequately remunerated. He told me he hopes to undertake further studies which may open promotional opportunities.
In his submissions, Mr Donaldson is seeking damages by applying 30% reduction in capacity for 47 years plus superannuation which is rounded up to $390,000. In the alternative, it is suggested I could apply a buffer and the figure of $300,000 is nominated. I am provided with case law which the claimant submits, supports this proposition. Neither submission nor oral submissions, applied the future economic loss test of most likely future circumstance but for the accident.
The insurer says Mr Donaldson’s most likely future circumstances but for the accident were to become an apprentice refrigeration mechanic and work full time in this chosen field. As such no allowance should be made for future economic loss.
In the alternative, if I am satisfied the claimant is entitled to damages for future economic loss, a buffer of $25,000 is an appropriate sum which was increased to $50,000 at the assessment conference.
But for the accident, Mr Donaldson may have had an opportunity to work with his father. The evidence is he and his father had a very close relationship. He looked up to his father. He said he had been given the opportunity to have work experience in the field in which his father worked. He did not say if this work experience was in his father’s company, but it is clear, this is the field in which he always wanted to work.
To his credit, he approached Mr Megalli, was interviewed, was successful in securing an apprenticeship, unfortunately, found himself without a licence which impacted in his employment, however, was reinstated and according to both Mr and Mrs Megalli, is an excellent employee, trusted with a company car and works alone.
He is working in his chosen field, but he has been severely disadvantaged by the loss of his father. He continues to suffer from mental health injuries which may affect his future employment.
All medical evidence recommends Mr Donaldson seeks treatment for his excessive alcohol consumption and drug use. He is entitled to future treatment for reasonable accident-related injuries. If he avails himself of this treatment, he may well find an improvement in his emotional state which will improve his work and home life.
As stated above, this head of damage can only be assessed as a buffer. I disagree with both the claimant’s nominated amount which is excessive having regard to all the circumstances, and the insurer revised amount which does not adequately consider the claimant’s age and the extent of his injuries.
The appropriate amount for future economic loss is a buffer of $150,000 which includes future superannuation.

SUMMARY

The summary of damages is as follows:
(a)    past economic loss 10,000;
(b)    future economic loss 150,000, and
(c)    total $160,000.

COSTS AND DISBURSEMENTS

At the assessment conference the claimant’s solicitor handed up a schedule of costs and disbursements which was agreed by the insurer in the sum of $5,829.05. This did not include witness expenses which has been subsequently agreed in the sum of $1,034.26.
I assess the claimant’s total costs and disbursements as agreed in the sum of $34,759.19.

[TR1]Write in full in first instance

[TR2]Write in full in first instance

[TR3]Write in full in first instance

[2023] NSWPIC 655

6 December 2023