Donelian v Cic Allianz Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Donelian v CIC Allianz Insurance Limited [2024] NSWPIC 226
CLAIMANT:	Margaret Lawton
INSURER:	IAG Limited t/as NRMA Insurance
MEMBER:	Elyse White
DATE OF DECISION:	6 May 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; proposed settlement approval; elderly claimant involved in high speed accident; liability wholly admitted; injuries to both legs; insurer conceded whole person impairment greater than 10%; entitled to damages for non-economic loss only; having regard to the age of the claimant and the impact the injuries have had to her quality of life and ongoing pain and suffering; entitled to treatment and care for the rest of the claimant’s life; proposed amount reasonable and within the range of likely potential damages; Held – settlement approved in the sum of $220,000 pursuant to section 6.23(2)(b).
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accidents Injuries Act 2017 Assessment of Claim for Damages made in accordance with s 7.36 of the Act. 1. On the issue of liability for the claim Allianz’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. In respect to the allegation of contributory negligence on the part of the claimant I assessed contributory negligence at 25%. 2. The amount of damages assessed in respect of this claim is $491,952 which includes the statutory benefits paid by the insurer. 3. The amount of the claimant’s costs taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 is $51,129.54 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

The claimant was employed as an estimator with Hapos Auto Body Pty Ltd (Hapos) located at 6-8 Crane Street Homebush. In the adjoining premises, at 4 Crane Street was Hapos Motors which carried out automotive mechanical repairs and servicing. Both businesses were owned by the same individual. He commenced employment with Hapos on 20 May 2019.
On 16 August 2019 at approximately 9:10am, he was required to go next door to Hapos Motors to speak to a mechanic regarding a repair job. There was a customer standing outside the entrance to the workshop whilst repairs were still being carried out to a vehicle which was a Lexus motor vehicle. The customer was the owner of the Lexus vehicle. The claimant engaged the customer in conversation while they waited for the mechanic to finalise the repair work.
The mechanic, Mr Jang, was also an employee of Hapos Motors. Mr Jang reversed the vehicle out of the workshop towards the street, and in doing so, drove past where the claimant and the customer were standing. The claimant remained standing in the same position, when suddenly, he was struck by the Lexus vehicle which was being reversed by Mr Jang back towards the entrance to the workshop. As a consequence of being struck by the vehicle, he sustained the following injuries:
(a)    shock.
(b)    head lacerations.
(c)    injury to cervical spine.
(d)    injury to left shoulder.
(e)    injury to left wrist and hand triquetal fracture.
(f)    injury to lumbar spine.
(g)    injury to left hip.
(h)    injury to left ankle and foot fractures to the shafts of the third and fourth metatarsals.
(i)    injury to the right foot, and
(j)    psychological injuries.
The claimant did not request an ambulance to attend the premises, but rather he drove himself to North Shore Hospital at about 10:30am. He was admitted to hospital and discharged later that day. He came under the care of Dr Andrew Wines, orthopaedic surgeon. He was also referred to Dr Lawson in relation to the injury to his left wrist. A plaster was applied to the wrist, and imaging tests were undertaken on both the left wrist and the left foot. He came under the care of his general practitioner Dr Cholakyan and thereafter, has been referred to a number of specialist doctors.
There is a dispute between the parties as to the level of remuneration paid to the claimant by his employer. The solicitor for the claimant submits he worked an average of 45 hours per week and was paid $2,000 net per week plus bonuses. Counsel for the insurer, at the conclusion of the assessment conference, submitted the appropriate wage paid to the claimant at the time of the accident was $1,700 net per week, which took into account a weekly $800 cash payment made by the employer. The insured disputes the claimant’s entitlement to bonus payments. He had previously worked at Artarmon Smash Repairs for approximately 27 years. This business was owned by his sister and brother-in-law. The business was sold in December 2017, and thereafter, he obtained employment, as an estimator for various periods with several businesses. But for the accident he stated he would have continued working until the age of 70 years. The insurer submitted I should consider the appropriate retirement age for the claimant to be 67 years.
As a consequence of the injuries and ongoing disabilities sustained in the accident, he has not been able to engage in either full time or part time employment from the date of the accident up until the present time.
He was born in 1964 and is presently 59 years of age.

LIABILITY

The insurer has admitted breach of duty of care but alleges contributory negligence of 80% on the on the following grounds:
(a)    the claimant was aware the vehicle was being collected as he was talking to the owner of the vehicle.
(b)    the claimant knew the vehicle was being reversed from the narrow driveway nearby to where he was standing, and
(c)    the claimant failed to keep a proper lookout and had a total disregard for his own safety by stepping backwards into the path of the moving vehicle.
The solicitor for the claimant has submitted the allegation of contributory negligence cannot be substantiated and accordingly, submits I should find the allegation of contributory negligence not to be proven and assess contributory negligence at 0%.
It is further alleged by the insurer the claimant walked backwards, one to two steps into the path off the moving vehicle, and furthermore, he knew the vehicle was being reversed down the narrow driveway.
At the assessment conference, a witness to the accident Mr Bradley Currell was questioned by both counsel. He provided a statement dated 26 November 2021. I note the following paragraphs from the statement:
“9.     On or about 16 August 2019, I was standing in the car park of my business which is elevated and looks directly down the driveway of Hapos Auto Repairs Pty Limited. I was talking on my mobile phone.
10.    As I was talking on my mobile phone, I was observing a black car being reversed in the premises of Hapos Auto Repairs Pty Limited (Hapos).
11.    I did not observe the vehicle being reversed in a way that caused me any concern, such as it being reversed quickly or in any way which I considered to be unsafe.
12.    As the black car was being reversed, I recall seeing a person who I now know as Mr Donelian take 1 or, at the most, 2 steps backwards into the reversing vehicle. I specifically recall seeing that Mr Donelian and did not look when he commenced walking backwards. I am not certain as to whether Mr Donelian walked into the path of the reversing vehicle that being such that the collision occurred with him and the rear of the vehicle, or whether Mr Donelian and walked into the side of the reversing vehicle.
13.    On seeing the incident, I walked over to the premises in the immediate vicinity of where the accident occurred to see if Mr Donelian had been injured...”
Mr Currell, at the assessment conference, stated there were two persons sitting on the fence quite near where the claimant was standing. There is no mention of the presence of these two individuals in his statement. The claimant has always stated he was only talking to one individual, being the customer who owned the Lexus vehicle. Both counsels submitted to me at the assessment conference, this recollection by Mr Currell of two persons sitting on the fence was incorrect and I accept their submissions.
After further questioning by counsel for the insurer, the claimant conceded he did take two steps backwards into the path of the oncoming vehicle and furthermore, he also agreed with the contents of the statement of Mr Currell.
I also refer to the statement of the driver of the Lexus vehicle, Mr Nakhyeon Jang dated

18 November 2021. I note the following paragraphs:
“9.     On or about 16 August 2017 the vehicle had been repaired as required and I was moving the vehicle to the designated area within the premises for collection by the customer
10.    The customer and Mr Donelian were talking in the area immediately adjacent to where the vehicle was to be collected by the customer. As best as I can recall, the customer and Mr Donelian knew the vehicle had been repaired and the customer was waiting to alight the vehicle and drive it from the premises.
11.    The area in which the vehicle was to be placed for the customer to collect is quite narrow, I moveg the vehicle to a position where I was to reverse into that area, and I commenced the reversing manoeuvre.
12.    I was reversing the vehicle very slowly and carefully to be sure as to not collide or cause any damage to the customer ‘s vehicle in the narrow area the vehicle was being reversed into.
13.    Both the customer and Mr Donelian were adjacent to that area and knew I was reversing the vehicle,
14.    The reverse manoeuvre had commenced and to the best of my knowledge and recollection I was utilising both the reverse camera fitted to the vehicle as well as looking over my left shoulder as required to perform the reverse manoeuvre safely.
15.    I did not accelerate at any stage during the reversing manoeuvre, but merely put the vehicle into reverse and kept my foot over the brake, applying it as necessary, to allow the vehicle to reversed or to slow down to complete the reverse manoeuvre
16.    As I was performing this manoeuvre, I heard a bump at which time I immediately applied the brake I then moved the vehicle forward slightly which I would estimate to be a distance of not more than one metre and then put the vehicle in park and alighted from the vehicle.
17     I walked to the rear the vehicle around the driver’s side and saw Mr Donelian on the ground.
18.    Mr Donelian was making noises indicating he had been injured.”

CONCLUSION AS TO LIABILITY

The onus proving contributory negligence rest upon the insurer. The driver of a motor vehicle is to take reasonable care for the safety of other road users.
In Manley v Alexander 2005 HCA 79 (Manley) at 11 the majority of the High Court emphasised the duty of a driver to ‘give reasonable attention to all that is happening on or near the roadway that might present a source of danger’.
An insured driver who asserts a claimant is negligent in failing to keep a proper lookout must also establish the claimant had the opportunity to see the insured driver and failed to do so. This is consistent with the principle in Manley, that is the duty of a motorist to be observant of all possible sources of danger on the road.
Section 5R (1) of the Civil Liability Act NSW 2002 provides principles that are applicable in determining whether a person has been negligent can also apply in determining whether the person who has suffered harm has been contributory negligent in failing to take precaution against the risk of that harm. The standard of care required of the person who suffered harm is that a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time, see s 5R (2)(a) and (b).
Section 5B of the Civil Liability Act 2002 provides in determining whether a reasonable person would have taken precautions against the risk of harm, the court is to consider the following amongst other relevant things:
(a)    the probability that the harm would occur if care were not taken.
(b)    the likely seriousness of the harm.
(c)    the burden of taking precautions to avoid the risk of harm.
(d)    the social utility of the activity that creates the risk of harm, and
(e)    the determination of whether a claimant it has been contributory negligent is to be decided objectively on the basis of the facts and circumstances of the case see, Serrao (by his tutor) Serrao v Cornelius (2) 2013 NSW CA231 at (61).
I find the insured driver Mr Jang was not keeping a proper lookout with regard to the whereabouts of the claimant and the customer, whom he clearly knew were standing at the rear of his reversing vehicle. I do not accept his statement that at all times he was utilising both the reverse camera fitted to the vehicle, as well as looking over his left shoulder. If he was utilising the passenger rear vision wing mirror, then he would have clearly been able to see both the claimant and the customer. At all times, whilst reversing the vehicle, he may have been able to apply the brakes of the vehicle, if he had seen the claimant step backwards. I do accept Mr Jang was reversing the vehicle “very slowly”. Mr Jang would not have anticipated the claimant would step backwards into the path of the reversing vehicle and I accept the admission by the claimant that he did step backwards.
However, I further find the claimant was clearly aware of the close proximity of the vehicle and should have kept observing the vehicle whilst its engine was still running and should not have stepped backwards to a position on the driveway, where he could place himself in danger of being struck by the vehicle whilst it was reversing. I find at all times the vehicle was in motion. The claimant knew Mr Pang was in the process of completing a three point turn, once he had reversed the vehicle out from the workshop and I find it was incumbent upon the claimant to pay attention to the vehicle’s movements. I also find, if he had not step backwards, then he would not have been injured as I note the customer who was standing adjacent and in front of the claimant was not struck by the reversing vehicle.
I therefore find the allegation of contributory negligence proven, and I assess contributory negligence at 25%.
Furthermore, for the reasons which I state below, I have accepted the claimant sustained personal injury loss and damage as a result of the said breach of duty of care. I will now assess damages.

Outline issues in dispute

The following issues have arisen in this matter:
(a)    past economic loss.
(b)    past superannuation.
(c)    future economic loss.
(d)    future superannuation, and
(e)    Fox v Wood.
The main issues requiring my determination are as follows:
(a) to what extent if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until the present time and for the remainder of his working life, and
(b) what is the entitlement to damages which flow from the findings on the above issues.

Documents considered.

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Submissions made by the claimant

I refer to the claimant’s statement dated 16 February 2024, where he states the following at paragraph 36:
“My role required me to regularly be on my feet standing and walking in the workshop for extended periods throughout the day. Unfortunately I am unable to stand or walk for any longer than 15 minutes without the need to sit down and rest my left foot I am also unable to wear enclosed shoes as result of my left foot injury being in constant pain being unable to concentrate and needing to sit down and rest so frequently has seriously impacted my capacity to work and I have been unable to return to any form of employment since the accident.”
I further note the following paragraphs in the said statement:
“39. As a result of the accident and my ongoing pain and restrictions I have also suffered a psychological injury I have been diagnosed with major depressive disorder. I constantly find myself ruminating about the accident and my ongoing disabilities, proud of the accident I had not experienced any symptoms of depression or anxiety. I considered myself to be a happy and outgoing individual, since the accident I experienced flashbacks of the accident I constantly feel anxious and depressed I struggle with my concentration, and it is difficult to motivate myself to get out of bed each day.
42. As a result of my psychological injury, I experience ongoing feelings of stress and anxiety and I become overwhelmed easily, as a result I have difficulty travelling to places that I am unfamiliar with. I feel extremely anxious trying to navigate public transport and as a result I usually have to order an Uber to drive me to my medical appointments and Icare reimburses me. As a result of my anxiety and also my loss of motivation. I no longer travel for any purpose other than to attend appointments or go to the shops which I tried to avoid.
45. In December 2020, the workers compensation insurer assigned me a rehabilitation provider Work Focus Australia, who tried to help me with retraining. I was enrolled in a work health and safety course, however, due to my anxiety and depression and difficulties with my concentration and motivation, I was unable to complete the course. As a result of my injuries, I have been unable to engage in any form of return to work plan or any other training courses .I am deeply upset that the accident has had such a profound negative impact on my ability to work and support myself financially prior to the accident, my career was my greatest source of happiness and pride and I feel as though I have lost everything
46. Notwithstanding my injuries and ongoing disabilities, I have attempted to find new forms of employment with the assistance of Work Focus Australia. I have applied for at least 15 jobs on Seek and almost secured one interview, however the interviewer found out that I am receiving workers compensation and cannot wear shoes and he did not show up for the interview. My injuries are clearly impacting my ability to secure new employment.”
The solicitor for the claimant arranged for him to be examined on a medico legal basis by

Dr Glenn Smith and I refer to his report dated 20 December 2021. Dr Smith is a consultant clinical and forensic psychiatrist. On page 4 of his report, he records the following:
“Mr Donelian experienced depressive symptoms in the context of the persistent pain and limitation in functioning. He reported feelings of worthlessness hopelessness and at times suicidal ideations, but he had not acted on those thoughts he described a sense of demoralisation in the context of his physical injuries. He attempted to perform a course in “work health and safety “, in 2020, but he was unable to continue study, due to his difficulties with concentration and thinking and he ceased study around a year ago."
On page 5 of his report, Dr Smith records the following under the heading “Current Symptoms”:
“Mr Donelian described feeling sad and tearful with no clear dismal mood variation. He reported loss of interest and enjoyment of activities and he noted that he has been unable to perform his previously enjoyed activities such as table tennis and fishing he experiences persistent pain in his left wrist and foot he described disrupted sleep due to pain and ruminations. Regarding his predicament he stated that he has flashbacks. Of the accident, he stated that he does not sleep for more than three hours at a time. He denied pervasive nightmares. He reported that his appetite is reduced but his weight has been unchanged he noted, ‘I am in a prison’ and he has thought that life is not worth living but he denied plans to act on those thoughts.”

Dr Smith opines the claimant has been prevented from working in his employment of choice due to the motor accident injuries. He diagnosed he is suffering from a major depressive disorder with anxious distress. Regarding obtaining gainful employment on a sustainable basis in any occupation for which the claimant is reasonably qualified by education, training or experience, Dr Smith stated this was unclear and depends upon the claimant’s further progress in treatment. He stated there may be some gradual improvement in allowing him to return to some form of employment in the long term.
He was also seen on a medico legal basis by Dr Andrew Porteous, occupational physician and I refer to his report dated 6 May 2022. Dr Porteous states the following on page 3 of his report:
“He saw Doctor Wines ,foot specialist, who has not operated to date he did a range injections with the first helping a lot but, for a short time the second not really changing it much and the third resulting in substantial pain it took some time to settle he is seeing a podiatrist who taped it for a couple of days a week to see if that would improve but there was no change.”
He told Dr Porteous he cannot wear enclosed shoes due to his injury. Dr Porteous provided a diagnosis of soft tissue sprains and aggravation, acceleration, deterioration an exacerbation of ageing related to general changes in the cervical spine, left shoulder, left wrist and hand, lumbar spine, left hip, left and right ankle and foot. He stated the claimant also had substantial musculoligamentous soft tissues sprain injuries in the left mid foot. He was of the opinion the claimant had recovered from the other injuries, except for the left foot injury with ongoing substantial pain restricting him from walking and standing and some activity related to the left chronic wrist pain.
On page 8 of his report, Dr Porteous states the following:
“He reasonably needs to see a Podiatrist for insoles and appropriate footwear ($1000 consult) with provisions of insoles and footwear ($1500) with those replaced every 6 to 12 months due to wear and tear…”
Dr Porteous expressed an opinion he is restricted and incapacitated from the physical aspects of working as an estimator which involves frequent standing and walking, as well as clearly office and paperwork. He was of the view he will most likely not be able to compete successfully in the open labour market available to him by way of his training, experience, and qualifications.
The solicitor for the claimant also lodged on the portal several reports from the claimant’s treating orthopaedic surgeon, Dr Andrew Wines. I refer to his report dated 2 April 2020 where he states as follows:
“He is aware of the benefit of the ongoing use of supportive shoes and where possible the avoidance of weight bearing, pain producing, activity.”
In his report dated 14 May 2020 he also states the following:
“Unfortunately, Jack continues to struggle along with significant discomfort in his left mid foot now 10 months following the crush injury. He has two weeks of symptomatic relief following the ultrasound guided injection of local anaesthetic and steroid into his naviculo-cuneiform joints, though the majority of his discomfort has returned He reports a throbbing sensation that is present daily and is exacerbated by weight bearing activity. His pain is increased by the use of shoes, and he is mobilising most comfortably in thongs.”
Dr Wines also notes in his report dated 11 June 2020 he has reassured the claimant it is his expectation the residual discomfort will continue to gradually settle with the passage of time. He will benefit from ongoing desensitisation physiotherapy, supportive footwear and the judicious use of topical and oral anti-inflammatory medication. In a further report dated

23 July 2020, Dr Wines was optimistic so that the claimant’s symptoms would settle. In his report dated 26 February 2021 he noted he had mobilised with a barely perceptible limp.
In further reports Dr Wines records he again notes an inability to wear shoes. In the report dated 26 July 2022, he suggests the claimant try wearing a pair of loose-fitting soft shoes, such as Ugg boots.
I refer to the report of Adrian Bresniak physiotherapist dated 15 February 2021. I note the following paragraph:
“One of Jack’s main obstacles to returning to work is his inability to wear shoes Jack has really been quite phobic about a gradual exposure approach to trying on the shoes, although today, I went through with him some goal setting and plans to re trial this in our next set of physiotherapy. I do feel like there are some barriers to therapy which is making progress more slow going than I would like and probably the focus for Jack should be on improving how he is dealing with some of the social stresses to allow him to engage in therapy better. I am applying to the insurer for follow up sessions, but I will apply for shorter session at this time.”
He further notes the following in report dated 23 June 2021:
“Despite this Jack remains with a very high somatic focus, he has a degree of passivity in his approach to treatment and he is highly reluctant to wear shoes due to fear of pain flares. Jack has a number of social stresses which I am sure are having an impact on his ability to engage in therapy. He has ongoing litigation.
I have discussed with Jack at length the importance for his recovery of active engagement with therapy and I have also encouraged him to start considering seriously the prospect of attending an intensive multi-disciplinary pain course I feel like Jack probably requires more intensive intervention now to get things more rapidly headed in the right direction I do have some concerns about Jack's ability to participate in a program and Jack himself has strong reservations I will discuss this with Jack’s treating physicians so they can consider the correct course of action”
I refer to the report of Dr Nathan Taylor, pain medicine specialist dated 29 July 2020 and I note the following under the heading “Summary” on page 2 of his report:
“Jack presents with persistent left sided foot and ankle pain following a crush injury. He has naviculocuneiform osteoarthritis and has overlying neuropathic pain or nervous system sensitization. The pain is impacting heavily on his mood and functional capacity. Today we had a long discussion about chronic pain and some of the underlying mechanisms and the importance of a multidisciplinary approach I would recommend that he be assessed by our Pain Specialist Physiotherapist and Clinical Psychologist and have a number of sessions with them to work on strategies for better managing his pain and pacing his activities I would like to follow up with him in two months following this to assess his progress if he fails to progress he would be a good candidate for a more intensive multidisciplinary programme but for now, I think he would benefit from the one on one sessions “
I refer to the report of David Bugg, podiatrist dated 16 May 2020. He states the following:
“Treatment
To help assist Jack with his ankle comfort we had been trying some taping and padding techniques. The taping has been designed to try to hold the ankle in a more stable position and therefore discourage as much work of the peroneal tendon. When the foot is bound and stable Jack does report improved comfort at the lateral aspect of his ankle consistent with the taping helping, I have also used some soft padding around the forefoot which Jack reports also is being helpful, however his progress is slow, and he still reports the inability to wear shoes due to the swelling of his foot. My feelings are that the footwear is not the problem but the persistent swelling that occurs as his bone undergoes remodelling and swelling to secondary to ankle joint perineal tendinopathy is why the foot is continuing to swell. As his foot pain and comfort improves the swelling events should decrease and footwear should not become a problem
Recommendation
Due to the slow repair of Jacks foot, I think he would benefit from having a soft custom orthotic. The orthotic would be designed to help stabilise the foot and take some pressure off the lateral Pereira peroneal group. In addition, “having some soft padding around the foot to cushion the area I feel would help Jack’s general comfort and facilitate better recovery. A graded software approach to muscle reputation would be advised”.
I refer to the report of Rebecca Jayaprakash, physiotherapist, dated 13 December 2019 where she states as follows:
“Jack and I both believe that he is close to his functional capacity prior to the accident “however he seems to be limited by the amount of time he can spend in enclosed shoes Jack has complained of pain the next day after wearing shoes for more than 15 minutes. This seems to be his main barrier to returning to work as a vehicle estimator at full capacity where he will need to stay in shoes for 8 to 9 hours per day.
As per your recommendation, I have given Jack a few pieces of tubigrip for compression around his ankle to help with venous return I've also encouraged him to continue with his home exercise program and have advised him to contact me if he has any further queries around his physiotherapy management.”
The solicitor for the claimant also lodged on the portal correspondence from the claimant’s accountant, George P Harris and Associates dated 18 December 2023. This letter provides an explanation as to why amended tax returns were required to be lodged with the Australian Taxation Office and I have noted the contents of this correspondence.

MEDICAL SERVICE

I refer to the Certificate and Reasons of Medical Assessor Alexey Sidorov dated

25 July 2023. He assessed the claimant as suffering from a persistent depressive disorder with anxious distress. On page 4 of his Reasons, he states the following under the heading “current symptoms”:
"... Mr Donelian continues to experience a depressed mood more often than not in the context of physical pain and impairment. This is associated with a reduced appetite, sleep disturbance, feeling low on energy, experiencing low self-esteem, finding it difficult to make decisions and concentrate and feelings of hopelessness, as well as associated anxiety symptoms.”
In respect of Adaptation on page 8 he states the following:
“There is evidence of moderate impairment. Given Mr Donelian’s depressive symptoms and degree of concentration problems he would likely not be able to work in the same position but will be able to work less than 20 hours in a different position required requiring less skill.”

Submissions made by the insurer.

The solicitor for the insurer made arrangements for him to be examined on a medico legal basis by Dr Graham Vickers, psychiatrist and I refer to his report dated 15 February 2022. Whilst Dr Vickery stated there is a direct relationship between the alleged psychiatric injury and disabilities and the alleged incident, he was of the opinion the alleged psychiatric injury has not caused incapacity to work.
The insurer also arranged for him to the examined by Dr Graeme Doig, consultant orthopaedic surgeon, and I refer to his report dated 13 April 2022. Dr Doig has provided a comprehensive report. He carried out a physical examination of the claimant and on page 8 of his report, he states the following:
“Mr Donelian has been unable to return to any fruitful employment since the incident. In my opinion, he is fit for alternative duties. He will have a 10-15 kgs lifting, pushing, and pulling restriction and no more than 5kgs with the dominant left hand.
He may require breaks from prolonged standing and walking and he is unable to run. He should avoid repetitive stair, hill and ladder climbing and try to avoid working at heights and on uneven ground. He will find it easier driving an automatic transmission.”
Dr Doig was of the opinion the long-term prognosis, at that time, remain guarded and the physical restrictions he recommended to the claimant were most likely to remain permanently in place.
The insurer also lodged on the portal a number of reports from the claimant’s treating specialist doctors and providers, and I have referred to those reports earlier in my reasons.

REASONS

Past loss of earnings

The solicitors for the claimant have submitted I should allow a sum of $961,988 for past loss of earnings based upon a net weekly income of $3,958. The insurer submitted I should allow a sum of $1,700 net per week for a period of only 12 weeks, which results in a calculation of $20,400. It is further submitted by the insurer I should make no allowance for future loss of earnings.
I was assisted by the reports of Dr Porteous and Dr Doig regarding the claimant’s inability to return to the workforce as an estimator, and also, his inability to return to work in some other alternative employment. However, I find since the accident he has not made efforts to obtain gainful employment on either a full-time or part-time basis. At the assessment conference, he advised he is not able to obtain any form of employment because he must continually wear rubber thongs as his footwear. He wore thongs to the assessment conference.
it is clear from the reports of Dr Wines and Mr Bugg, podiatrist, recommendations were being made to the claimant, at that time, to try and wear alternative footwear in the form of enclosed shoes, even for a short period during the day. It is apparent he did not wish to pursue efforts to find alternative footwear, and now relies upon his need to continually wear thongs as a legitimate reason as to why he cannot even obtain some form of part-time employment.
I find he has made no real effort to obtain some form of employment and searching the website Seek on the Internet is far from convincing me he is attempting to re-enter the workforce in some capacity.
He was also questioned by counsel for the insurer regarding his period of employment with Hapos, and it is suffice to say, I find his employment there far from secure. In this regard, I refer to the statement of Jae Seung Chung dated 17 November 2021. I also do not accept the bonus arrangement, which he claims he negotiated with his employer was properly defined and within a very short period, the payment of such bonuses came under serious question by his employer. Furthermore, since leaving Artarmon Smash Repairs, he had various periods of short-term employment and I find he was experiencing difficulties to obtain employment in his profession as an estimator on a long-term basis.
After leaving Artarmon Smash repairs he worked for relatively short periods of time with seven different employers. Accordingly, having regard to such matters, I accept the submission by the insurer an appropriate allowance for the net weekly income of the claimant at the time of the accident is the sum of $1,700.
I find as a consequence of these injuries and ongoing disabilities the claimant was totally incapacitated for work for a period of three years post-accident. After a period of three years, I find he was capable of obtaining some form of part-time employment, either as an estimator, or some other suitable, part-time job. I have calculated the past loss of earnings for this period to be a sum of $850 net per week from 16 August 2022 until 1 May 2024, which is a period of 89 weeks.
I have therefore calculated past loss of earnings as follows,
·        From 16 August 2019 to 16 May 2022 $1,700 net multiply by 156 weeks, $265,000.
·        From 16 August 2022 to 1 May 2024 $850 net per week multiply by 89 weeks, $75,650.
·        Total past loss of earnings $340,850.

Past superannuation

I have allowed 11% on the net sum of $340,850 which results in a calculation of $37,494.

Future loss of earnings

I accept the most likely future circumstances for the claimant, he will continue to suffer from his ongoing disabilities, which will cause him to suffer a diminution in his earning capacity for the remainder of his working life, until the age of 67 years. I find he will always be at risk on the open labour market, and it will be difficult for him to obtain suitable light duty work, even after he has undergone further rehabilitation and appropriate retraining.
I prefer to make an allowance for future loss of earnings by way of a buffer, as I do not believe it is possible to make a precise calculation as to his future net weekly loss, having regard to his physical disabilities as well as his psychological injuries, which are ongoing. I believe it is appropriate to make an allowance by way of a buffer, in the sum of $150,000, which includes an allowance for future superannuation.

Fox v Wood

The parties have agreed the amount to be awarded for Fox v Wood is the sum of $127,592.

Assessment of damages summary

Under sub-section 7.36(1)(b) of the MAI Act, I am required to make an assessment of the amount of damages for that liability that a court would likely to award.
I assess the claim as follows on the findings set out above:
Past loss of Earnings  $340,850
Past Superannuation  $37,494
Future loss of Earnings  $150,000
Fox v Wood  $127,592
Total of Economic Losses  $655,936
Reduction for contributory negligence               $163,898
TOTAL DAMAGES ASSESSED  $491,952

Costs and Disbursements

I assess the claimant’s legal costs and disbursements in accordance with the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet.

CONCLUSION

On the issue of liability for the claim, Allianz’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury, loss and damage as a result of that breach of duty. In respect to the allegation of contributory negligence on the part of the claimant, I assessed contributory negligence at 25%.
I specify the amount of damages for this claim is $491,952 which includes any statutory benefits paid by insurer.
The amount of the claimant’s costs taking into account the amount of damages assessed in respect of this claim assisted accordance with the Act is $51,129.54 inclusive of GST.

LEGISLATION

In making my decision, I have considered the following legislation and guidelines:
(a) Motor Accident Injuries Act 2017.
(b) Motor Accident Injuries Regulation 2017.
(c) Personal Injury Commission Regulation 2020.
(d) Motor Accident Guidelines 2017, and
(e) Personal Injury Commission Rules 2021.

[2024] NSWPIC 226

6 May 2024