Dyer v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 417
•16 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Dyer v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 417 |
| CLAIMANT: | Russell Dyer |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 16 July 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Damages claim; liability wholly admitted; claim for non-economic loss only; Claimant is male in his late 70s; accident was head on collision causing life-threatening injuries including abdominal perforations, thoracic fractures, lacerations and bruising; claimant developed delirium and was hospitalised for three months; multiple surgeries; claimant’s ability to care for himself impacted; various scars due to injuries and surgery caused distress; ongoing post-traumatic stress disorder; Held — amount of damages $300,000 plus costs. |
DETERMINATIONS MADE: | The Insurer having wholly accepted liability for the claim, the findings of this assessment are as follows: 1. The amount of damages assessed in respect of this claim is $300,000. 2. The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, is assessed in accordance with the Motor Accident Injuries Act2017 and the Motor Accident Injuries Regulation 2017 in the sum of $26,053. |
Reasons for Decision
INTRODUCTION
Mr Russell Dyer was involved in an accident on the north coast of NSW on 2 November 2018. A car travelling in the opposite direction crossed onto its incorrect side of the road and collided head on with the car Mr Dyer was driving.
The accident occurred at speed, Mr Dyer was trapped for some time and was cut from the wreck by first responders before being transported to hospital by ambulance[1].
[1] See notes of Coffs Harbour Hospital [R3].
Soon after the accident, Mr Dyer made a claim for statutory benefits against NRMA, the third-party insurer of the at fault vehicle and NRMA has paid almost $175,000 for Mr Dyer’s treatment and care[2]. Because Mr Dyer sustained more than minor injury, Mr Dyer’s reasonable and necessary and accident related treatment and care needs will be paid for the rest of his life[3].
[2] The statutory benefits claim form is identified as document [R11] and the Insurer’s list of payments dated 29 June 2021 is document [AD1].
[3] At five years after the accident, NRMA’s liability to pay these benefits is transferred to the Lifetime Care and Support Authority in accordance with s 3.2(3) of the Motor Accident Injuries Act 2017.
In time, Mr Dyer made a claim for common law damages against NRMA and NRMA has admitted liability for that claim.[4] NRMA conceded Mr Dyer was entitled to damages for non-economic loss[5] and Mr Dyer does not claim for any economic losses.
[4] The common law damages claim form is dated 18 June 2020 and is identified as document [R12] and the Insurer’s liability notice is document [R13].
[5] By letter dated 16 June 2020 being document [A2].
As Mr Dyer and NRMA could not agree on the quantum of Mr Dyer’s claim for non-economic loss damages, Mr Dyer referred his claim for assessment and the matter was, in time, allocated to me for assessment.
I conducted a preliminary conference by telephone on 7 June 2021 and on 15 July 2021, I held an assessment conference hearing by video link. The following persons appeared:
(a) Mr Brett Gilbert instructed by Mr Ben Newling of North Coast Compensation Lawyers for the Claimant.
(b) Ms Catherine Freeman of Hall & Wilcox Lawyers instructed by Ms Shelley Schewitz of NRMA.
Review of the evidence
General
The Claimant was 75 years of age at the time of his accident, 78 at the time of my assessment.
He was taken from the accident to Coffs Harbour Hospital and from there to the John Hunter Hospital where he remained for over five weeks. The discharge summary from the hospital[6] provides a useful recitation of the serious injuries sustained by Mr Dyer and his treatment which I have summarised as follows:
(a) Spinal fractures – unstable fractures to T5 and 6 - surgery on 4 November with rods and screws inserted from T3-T8.
(b) Abdominal injuries and peritonitis treated with laparoscopic surgery on 6 November converted to laparotomy with bowel resection due to ‘blowout injuries of ileum + large hole in right retroperitoneum’; further surgery occurred on 8 November with closure of would and repair of hernia; multiple returns to theatre for debridement and dressing change to wound; Sepsis and colitis set in on 8 November with fever and diarrhoea treated with antibiotics.
(c) Vascular injuries occurred in the abdominal area and a small pneumothorax was treated by way of drainage.
(d) Cardiac complications – the Claimant had pre-accident cardiac issues but developed rapid atrial fibrillation during intensive care admission requiring multiple medications and cardiology input throughout his admission.
(e) Delirium – onset on 5 November, CT scan showed no abnormality. Delirium improved over time decreasing to intermittent episodes and managed with medication before discharge. The delirium affected the Claimant’s ability to eat which in turn affected his nutrition.
(f) Kidney injury with a period of CRRT dialysis which recovered before discharge plus urinary retention requiring an indwelling catheter.
(g) Right brachial plexopathy with reduced power treated with physiotherapy and conservative management apparently related to a seat belt injury.
[6] Identified as document [R4].
Musculo-skeletal injuries
There are two letters from the Claimant’s treating neurosurgeon – Dr Timothy Siu to the Claimant’s GP[7]. The first records ‘quite bothersome thoracolumbar pain’ which was aggravated by prolonged standing or walking (more than 1 km caused an increase in pain) however there had been improvement in the numbness in the thigh area. The Claimant was taking Lyrica at that time. The second letter referred to ‘intermittent back pain’ which was ‘manageable’ with prolonged sitting and standing causing aggravations. The Claimant had stopped taking analgesia.
[7] Document [R14] dated 9 December 2019 and [AD3] dated February 2020.
On both occasions, Dr Siu encouraged the Claimant to have more physiotherapy.
The Claimant said he last saw Dr Siu in August 2020. Dr Siu is a Sydney based neurosurgeon but travels to Coffs Harbour to see patients based on the north coast. No updated medical evidence has been provided in relation to that August consultation.
The physiotherapist’s notes have been provided[8] which commence with an entry on 6 June 2019 and a history of the Claimant being in a coma for six weeks, a rehabilitation hospital for three months and that he had to re-learn how to walk. This appears to be incorrect. The Claimant was never in a coma although he was in a state of Delirium but not for six weeks and he was in a rehabilitation hospital for two months.
[8] Soulitude Physiotherapy - Document [R15].
There are 15 further treatments recorded ending in November 2019 which document the gradual progression of the Claimant’s physical strengthening with exercises on a stationary bike, lifting weights and rowing. There is a suggestion that the Claimant was given boxing exercises on several occasions but it is not clear whether he completed those exercises or not. The Claimant gave evidence that he only tried boxing once.
In February 2020, Medical Assessor Lahz recorded that the Claimant was not having physiotherapy and that Mr Dyer felt he needed more due a stiff back and difficulty bending over, his sore neck and right shoulder[9]. I note the Insurer’s list of payments suggest no further physiotherapy was provided by NRMA after December 2019[10].
[9] Document [R16] page 5.
[10] Document [AD1] page 16.
The Claimant gave evidence at the assessment conference that his back was stiff with little movement and that his neck has not stopped troubling him. He also indicated that pain and restriction of movement in his right and left shoulders continued and caused him difficulties. The Claimant said he continued to take Lyrica for pain but no other pain medications.
Abdominal and chest injuries
There is no medical evidence to suggest any long-term sequelae from the Claimant’s abdominal injuries and the Claimant did not volunteer any issues at the assessment conference.
The Claimant did say he had a nasty scar over his abdomen which caused him some embarrassment. I will say something more about the scarring below.
Alleged head injury and delirium
The Claimant referred in the history given to his physiotherapist and in his statement to being in a coma and having symptoms including memory loss and loss of concentration suggestive of a brain injury.
During the course of the statutory benefits claim, a dispute arose between Mr Dyer (who wanted to have neuropsychological testing) and NRMA (who refused to approve and pay for it). That dispute was referred for medical assessment and Medical Assessor Dr Sophia Lahz determined that dispute in the Claimant’s favour. Her decision is recorded in a lengthy decision dated 2 March 2020[11].
[11] Document [R16].
Assessor Lahz took a history from the Claimant and spoke with his ex-wife Christine who confirmed that she had experienced her former husband’s concentration and memory problems and she felt he was generally slowing physically and mentally since the accident.
Assessor Lahz also recorded Mr Dyer’s difficulty getting out of a chair and she said that she needed to help Mr Dyer don his shoes after the examination. This is consistent with the oral evidence of Mr Dyer at the assessment conference.
Assessor Lahz expressed the opinion that there was no evidence Mr Dyer suffered a traumatic brain injury in the accident but she did note the development of confusion, agitation and aggression which was diagnosed as ‘hyperactive delirium’ which she explains as follows:
Delirium is a term referring to an acute confusional state to which elderly people are more susceptible compared with younger persons. Delirium commonly occurs in the context of trauma (especially severe trauma such as that to which Mr Dyer was subjected) associated with multiple organ injury, bony injury, pain, sleep disturbance, ICU stay, multiple medications, multiple surgical procures/anaesthetics, life threatening injuries associated with release [of] bodily toxins, blood pressure fluxes, blood loss with need for blood transfusion and infections (chest and gastrointestinal in Mr Dyer’s case.
She also expressed the view that on an ongoing basis Mr Dyer exhibited psychological symptoms the effects of which may be similar to those of mild traumatic brain injury. She also noted that ‘poor sleep, chronic pain with physical restrictions, polypharmacy and psychological condition with distress’ can all cause adverse cognitive effects.
While she expressed the view that the cognitive effects of delirium can fully recover it does not always happen and an MRI could be undertaken to explore any changes in the brain. She noted that on testing Mr Dyer did have higher order cognitive difficulties and expressed the view these were due to the accident.
Noting that the Claimant has an implanted cardiac device and that therefore an MRI could not be undertaken she considered it was appropriate for him to have the neuro-psychological assessment. She noted that both the Claimant and Christine wanted to understand the extent of Mr Dyer’s cognitive difficulties in order to help manage them more effectively.
The neuropsychological assessment was undertaken by Corinne Roberts on 27 August 2020. She notes in her report to the Claimant’s GP[12] that Mr Dyer engaged well and co-operated with the testing. She took a history of him feeling ‘detached’ with disturbed sleep, constant aching in the shoulders, knees and feet and neuropathic pain in the legs. He reported flashbacks to the accident, impaired concentration and short-term memory problems. Ms Roberts was of the view Mr Dyer did have some reduction in his cognitive functioning affecting his ability to concentrate ‘due to a combination of PTSD (post-traumatic stress disorder), chronic pain, medication required to manage neuropathic pain, chronic sleep disturbance, and fluctuating mood’. Ms Roberts noted CT brain scans undertaken in hospital suggested ischaemic brain changes before the accident which did not apparently cause impairment of cognition before the accident but which ‘rendered him more susceptible to incomplete recovery from the delirium’.
[12] Document [R9].
Ms Roberts thought there might be some improvement if the Claimant’s PTSD and sleep improved. She noted Mr Dyer’s history of sleep apnoea and suggested to the GP that the management of this condition may need to be reviewed.
Scarring
The Claimant’s statement documents a number of scars which the Claimant said caused him embarrassment. He said he would never go to the beach without covering himself up and then added, ‘not that I could go to the beach anyway’.
The Claimant provided me with a number of photographs after the conclusion of the assessment conference at my request, to spare him the embarrassment of removing his clothing during the video call. It was hard to see the scarring on his hands but the scars on his abdomen were indeed ‘nasty’ scars as he put it and his abdominal area is quite misshapen as a result.
Psychological injury
The Claimant saw Ms Yvette Greenhalgh psychologist on the referral of the Claimant’s GP and her letter dated 17 May 2019 to the GP[13] was written after the first visit outlining a plan for further consultations. According to the Insurer’s list of payments[14] there were four payments made to Ms Greenhalgh but it is not clear from the entries that all of them relate to psychological treatment or treatment by her.
[13] Document [R8].
[14] Document [R8] page 10, one service dated 12 July 2019 refers to physiotherapy and three of the entries are dated 12 July 2019.
Ms Greenhalgh noted a history of poor sleep, hyper-vigilance, flashback and nightmares ‘every night of the week’. Mr Dyer reported to her feelings of depression about how the accident had impacted his life. He also reported chronic pain and that he could no longer enjoy the things he used to do (travelling, fishing and 4-wheel driving).
Ms Greenhalgh diagnosed post-traumatic stress disorder and recommended cognitive behavioural therapy over eight further sessions.
It is not clear why the Claimant did not pursue treatment with Ms Greenhalgh but he did seek the assistance of Ms Gill Stott, clinical psychologist and he has seen her a total of 26 times according to the Insurer’s payment printout, the most recent attendance being 15 June 2021[15].
[15] Document [AD1] pages 1 and 2.
According to her letter to the Claimant’s GP[16], Ms Stott first saw the Claimant on 11 July 2019 and she noted his trauma was related to the accident as well as his treatment in ICU as a result. She took a history of ‘significant’ cognitive decline which she attributed to a brain injury. She also reported the Claimant’s concern at his loss of fitness and functioning and his shame at being reliant on his ex-wife.
[16] Dated 15 July 2019 document [R7].
In her letter to the GP dated 7 October 2020[17] Ms Stott suggested the Claimant’s flashbacks, agitation and PTSD had ‘largely settled’ but that the Claimant was struggling to come to terms with his physical impairments. She was concerned about his impaired sleep and suggested medication to help with sleep because ‘he feels fatigued through the day’.
[17] Document [AD4].
Apparently NRMA wrote to Ms Stott and in her reply dated 27 April 2021[18] addresses a number of questions NRMA’s claims handler had about the Claimant’s history including:
(a) His ‘work’ with his ex-wife’s business. Ms Stott confirmed the history given to her of Mr Dyer working in the business. I note at the assessment conference Mr Dyer confirmed he was not employed and did not receive wages for working in the business but involved himself in it as a way to keep himself occupied,
(b) His pre-accident heart and sleep apnoea. Ms Stott noted these were in existence before the accident and were treated before the accident and were apparently not causing significant impairments.
(c) The comment in her October 2020 letter that his PTSD had ‘largely’ resolved. Ms Stott clarified that she did not state that Mr Dyer’s PTSD had completely resolved.
(d) Her diagnosis of impaired cognition due to a brain injury. Ms Stott appears to stand by her assessment of Mr Dyer’s cognitive deficits and restates Assessor Lahz’s determination that this is due to things other than a traumatic brain injury.
(e) The goal of improving Mr Dyer’s sleep and his pre-existing sleep apnoea. Ms Stott specified that she was attempting to improve Mr Dyer’s sleep from 2-3 hours to 5-6 hours per night over a three-month period. She expected to implement cognitive behavioural therapies for ‘night-time worries / flashbacks’ and recommended hydrotherapy to improve the Claimant’s mobility to then enable him to exercise which she considered might also improve his sleep.
[18] Because it was submitted through the portal as a ‘late document’ I have given it the number [A9].
The Claimant’s evidence
The Claimant’s statement[19] suggests at paragraphs 4 and 6 that before the accident he had no major health problems and was fit and healthy and slept well. The Insurer challenged him on this, noting he had arterial stents and a pacemaker as well as pre-existing sleep apnoea. The Claimant explained that he had cardiac issues which were treated and for which he was regularly seeing his cardiologist. He spoke of an attendance in August 2018 shortly before the accident when he was put through and exercise stress test and apparently passed and he also mentioned that the pace-making device implanted in 2012 to regulate his heart rhythms and that ‘I wouldn’t know it was there’. He said when it was implanted it had a battery life of 10 years but he had recently been advised (nine years after the event) that the battery life was now only eight years because his heart rhythms had improved and his heart was not needing to ‘use’ the pacemaker.
[19] Document [A1] dated 24 February 2021.
The Claimant conceded he used a CPAP machine to help him sleep before the accident and said that using that device he usually slept for six to six and a half hours before the accident. He says he now sleeps no more than three to four hours.
There were a number of reports that referred to Christine as the Claimant’s wife. The Claimant explained that he and Christine had divorced in 2001 but remained friends. They helped each other out. When she purchased her Bowraville business he volunteered to help her renovate the building and help out. They had only just finished that joint effort at the time of the accident.
He said that he and Christine were financially independent and do not share anything. He says he feels a bit of a burden and is embarrassed at some of the things she has to do for him (helping him with his shoes and socks and sometimes when on the lavatory).
Mr Dyer indicated his intention was, when this case was over, to return to the Gold Coast and stay with his sister before setting himself up in his own place. He was worried about how he would cope on his own as there were things he could not do.
Mr Dyer said he had sold his caravan because he could no longer use it and he still has his boat and his 4-wheel drive although he has not used his boat.
The Claimant conceded that some days were better than others, but his back is always stiff and he has trouble reaching down to put his shoes and socks on. He says Christine cooks although he agrees he can get his own breakfast and lunch and heads out to the pub for a meal sometimes. He says he does not want to impose on Christine. She does the cleaning and looking after the home.
Mr Dyer says he helps his ex-wife out in her business every day for an hour or so, sorting the mail but does it in stages as he finds it difficult standing for more than 20 minutes. He said he is trying to get on with his life but after helping out Christine and talking to his dog he does not do much.
Mr Dyer talked about his scars which he did not like. He does not like the way his abdominal area has been disfigured as a result of his multiple surgeries.
The Claimant talked of his love of bushwalking which he cannot do any more. He spoke of a trip to the United States (California, Washington State and Alaska) in 2016 and the hiking he had done there (including a walk to the bottom of the Grand Canyon).
He said his back and his neck were a worry but the worst thing was the numbness he feels in his legs and his feet. He described a feeling like they would collapse and so he does not push himself.
He also described feeling useless having been in business all his life and being a doer and helping the person who bought his business and his ex-wife. He repeatedly said he did not like being a burden and that he was now ‘rubbish’.
The Insurer’s legal representative asked the Claimant about his cardiac history and the Claimant said he did not recall any advice Dr Waites had given him about his risk of further cardio-vascular events[20]. He explained about his stress test and said he felt fine afterwards. He did say that he had cramps in his feet and legs before the accident due to a particular medication but that when the medication was changed it resolved. He noted that during his hospitalisation his medications were changed and he again experienced similar symptoms but when his medication was changed back they disappeared.
[20] There is a report from Dr Waites in the GP’s notes [R6] dated May 2018 suggesting the Claimant had a 21% risk of a further cardio vascular event within five years and required medication to control cholesterol.
He reiterated that before the accident he felt ‘terrific’.
The Claimant conceded that he had experienced some improvement since leaving hospital noting that he could barely walk when he was discharged but he said he is no more than 30% of what he was.
He acknowledged that he had got back to driving but said he did not drive far. He also noted he had resumed work in his ex-wife’s business. He was taken to the history from Dr Siu that he was improving and said any improvement was ‘tiny’. He disputed the history taken by the physiotherapist of doing some boxing exercises on more than one occasion saying he tried it but did not do it again.
Mr Dyer was asked by the Insurer about whether his PTSD had improved, and he said he still got a lot of flashbacks. He wakes up and sees the car’s headlights coming at him. It makes him jump up and scares him. He said this still troubles him and it is hard to get it out of his head. He said he has been seeing Ms Stott for 18 months to two years and still does not get a good night’s sleep. He said he did not think he had improved.
The Claimant said there had been a small 5% improvement in his back pain but no improvement in his neck and his right shoulder aches the whole time. He was taken to Dr Sui’s history and confirmed he was still taking Lyrica but was not taking analgesia as he would prefer not to take any medicine.
He was asked about his shoes and socks and said he bought himself a shoe horn and a device to help him put his socks on but none of them worked.
He said he could do his laundry and light housework such as washing up and wiping down and he could do his own light shopping.
He talked about his sleep which he described as ‘absolute rubbish’ and the absence of a good night’s sleep was getting him down.
WHAT DAMAGES SHOULD I ASSESS FOR NON-ECONOMIC LOSS?
The submissions
The Claimant submits[21] I should award damages in the sum of $425,000 whereas the Insurer submits[22] I should allow damages in the sum of $160,000.
[21] The Claimant’s submissions were attached to the application form and are identified as [A7].
[22] The Insurer’s submissions were attached to the reply form and are identified as [R10].
The Claimant’s submissions note:
(a) the injuries were serious and permanent ‘at the very high end of the scale’,
(b) the Claimant’s pain is ongoing and significant with restrictions and he requires assistance with activities of daily living, and
(c) his injuries will have a serious adverse effect on his ability to enjoy his remaining life at the stage in his life when he should be enjoying his retirement.
The Insurer concedes the Mr Dyer’s injuries were significant but disputes they were at the high end of the scale noting the Claimant did not suffer a significant head injury or catastrophic spinal injury.
The Insurer says:
(a) while the Claimant’s statement suggests he does not feel better, the records suggest he has made improvements,
(b) the Claimant has resumed driving and can attend appointments on his own,
(c) the Claimant had a significant cardiac condition and sleep apnoea before the accident with significant cardiac risk factors, and
(d) ‘He is advancing in years, and his level of functioning would have decreased as he aged’ despite the accident.
Legislative framework and case law
Section 1.4 of the Motor Accident Injuries Act2017 defines non-economic loss as follows:
(a) Pain and suffering, and
(b) Loss of amenities of life, and
(c) Loss of expectation of life, and
(d) Disfigurement.
The maximum amount that may be awarded for damages for non-economic loss is currently set at $590,000[23].
[23] Clause 5, Motor Accident Injuries (Indexation) Order 2017.
In Hodgson v Crane[24] and RACQ Insurance Ltd v Motor Accidents Authority of NSW (no 2)[25], the Courts held that once the entitlement to non-economic loss was agreed or established, damages are assessed in accordance with the common law subject to a cap. Proportionality (familiar in the previous scheme of ‘a most extreme case’) was not to be applied. Those cases dealing with the assessment of non-economic loss under the Motor Accidents Compensation Act1999 are equally applicable to the Motor Accident Injuries Act2017 as the definition and almost all of the provisions surrounding non-economic loss are identical.
[24] [2002] NSWCA 276.
[25] [2014] NSWSC 1126.
In assessing damages for non-economic loss, I note the view expressed by Justice Kirby in James Hardie & Co v Newton[26] that ‘… in my opinion justice to litigants requires that awards for similar injuries be broadly comparable’.
[26] (1977) 42 NSWLR 729 at 732.
Mr Gilbert for the Claimant took me to the case of AQB v NRMA [2020] NSWSIRADRS 226 (AQB). Ms AQB’s damages for non-economic loss were assessed in that case at $325,000.
The female claimant was stated to have a life expectancy of 14-15 years which suggests she was close to Mr Dyer’s age. Ms AQB sustained life-threatening physical injury and a psychological injury which appears to have been disputed. She was hospitalised for a lengthy period and had four or five surgical interventions and had ongoing effects of her injuries which affected her independence. I note she had developed a form of epilepsy.
My assessment
In my view the sum of $300,000 is an appropriate amount for damages for non-economic loss for the following reasons:
(a) There was no real challenge to the reliability of the Claimant’s evidence or his credibility as a witness. While there were suggestions in the records of improvements and partial resolution of various symptoms, the Claimant gave evidence in a very straightforward, matter of fact fashion that there had been some improvement but that none of his neck, back, shoulder or psychological symptoms had completely resolved.
(b) In the case of AQB there was medico-legal evidence which suggested the Claimant’s injuries would deteriorate. There is no medico-legal evidence before me in Mr Dyer’s matter at all and limited evidence from his treating practitioners as to the future prognosis of his injuries.
(c) The evidence of Medical Assessor Lahz and Ms Roberts attests to the ongoing effects of the Claimant’s cognitive impairments. Before the accident, Mr Dyer functioned independently, helping out his ex-wife in her business and the person who had purchased his own hotel business (which he had sold in 2014). His ability to concentrate and remember things and assist others has affected him and left him feeling like ‘rubbish’.
(d) Medical Assessor Lahz and Ms Roberts along with the psychologists who have treated the Claimant also indicate the significance of the Claimant’s psychological symptoms which the Claimant so graphically described at the assessment conference. He says the vision of the approaching vehicle with headlights on in the seconds before impact has stayed with him for almost three years and is hard to get out of his head.
(e) The Claimant had five weeks in intensive care at John Hunter Hospital before being discharged to a rehabilitation hospital for a further two months. He has, according to the Insurer’s payment printout had a significant amount of treatment since leaving hospital. His most recent treatments include ongoing psychological counselling.
(f) The Claimant had a number of operative procedures and has hardware (rods and screws) in his spine to stabilise his thoracic fractures which I accept causes him permanent bending restrictions.
(g) I accept that his other physical injuries to his neck and shoulders causes restriction of movement and ongoing pain.
(h) The Claimant’s injuries were life threatening and he developed delirium present for three or four weeks.
(i) He has described shame at being dependent on those around in him in particular his ex-wife and requiring assistance with simple tasks such as putting on his shoes and socks (and on some days dressing) and embarrassing tasks such as when he is on the lavatory.
(j) He expressed embarrassment at his significant scars. The photographs of his scars, in particular his abdominal scars show significant disfigurement.
(k) The Claimant has, according to the life tables almost 11 years of life left. While the Claimant told me of the ages of his mother’s family (many of her siblings lived to the age of 100) there is no expert evidence to suggest I should consider a life expectancy beyond the medium. Similarly, while the Claimant has a pre-existing heart condition and there is evidence from Dr Waites of a risk of further cardio-vascular events, there is insufficient expert evidence to suggest I should consider a life expectancy below the medium.
(l) Of significance to me is the effect the injuries have on the Claimant’s recreational and daily life. His evidence about his lack of sleep and how that has caused ongoing fatigue was important. He had, four years before the accident retired and two years before the accident travelled overseas. He was a busy person before the accident, engaged with his community and his ex-wife in the renovation of her home and business.
ASSESSMENT OF COSTS
The Claimant’s submissions as to costs[27], when clarified, were not disputed by the Insurer.
[27] Document [A8].
The Claimant’s costs are to be calculated in accordance with the Motor Accident Injuries Regulation 2017 which provides for a series of events with an associated number of ‘monetary units’[28]. The current value of a monetary unit is $103.76 and any amount calculated with reference to that monetary unit is to be rounded up or down to the nearest dollar[29].
[28] Schedule 1, Part 2, Table A
[29] Schedule 3, clause 2 and 3
Noting the agreement between the parties I will assess the Claimant’s costs as follows:
(a)Stage 1 2.92 monetary units $303.00
(b)Stage 2 24.32 monetary units $448.00
(c)Stage 4(a) stage 3 - 114.48 monetary units $11,878.00
stage 3 - 2 cents x $200,000 $4,000.00
(d)Stage 4(b) 2 cents x $300,000 $6,000.00
(e)Conference settle Claimant’s statement $311.00
(f)Hearing assessment conference (< 2 hours) $3,113.00
TOTAL $26,053.00
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