Evans v Allianz Australia Insurance Limited

[2022] NSWPIC 99

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Evans v Allianz Australia Insurance Limited [2022] NSWPIC 99

Claimant:

Dean Evans

insurer:

Allianz Australia Insurance Limited

Member:

Susan McTegg

DATE OF DECISION:

18 February 2022

CATCHWORDS:

MOTOR ACCIDENTS – Assessment of damages; Motor Accident Compensation Act 1999; non-economic loss; past loss of earnings; future loss of earnings; treatment; equipment needs; past gratuitous care, future commercial care; retirement age; orthopaedic injuries; causation of traumatic brain injury; retirement age; motorbike accident; claimant age 45 at date of accident and 51 at date of assessment; hospitalised five months;  fracture of left distal radius; fracture of right distal radius; fracture of the left ulnar styloid; fracture of right distal ulnar, open book facture of the pelvis; injury to the bladder associated with the pelvic fracture; fractures of the T6, T7, T8, T9 and T10 spinous process; erectile dysfunction; closed head injury; Held- also suffered mild traumatic brain injury; aggravation of pre-existing psychological injury; damages assessed for past and future treatment expenses, equipment costs, past and future economic loss, past and future domestic assistance, non-economic loss; capacity to work two three hour shifts per week but no likelihood of actually securing such work; Mead v Kerney and Nominal Defendant v Livaja applied; damages assessed on basis of total incapacity for work; Nicholson v Nicholson applied; no entitlement to damages for care whilst hospitalised; future commercial assistance assessed on basis reasonable for claimant to live on small acreage out of town; Dang v Chea and Chulcough v Holley applied; damages assessed in the sum of $2,244,628.43.

determinations made:

1.   On the issue of liability for the claim, the Allianz Australia Insurance Limited’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.

2.   Under sub-sections 94 (3) and 94 (4) of the Motor Accidents Compensation Act 1999 (the Act),I specify the amount of damages for this claim as $2,244,628.43

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 Act is $130,417.10 inclusive of GST.

Reasons for Decision

Issued under section 94 (5) of the Motor Accidents Compensation Act 1999

INTRODUCTION

1. On 27 April 2016 Dean Evans (the claimant) was riding his motorcycle, at a speed of approximately 80 kilometres per hour, along the Princess Highway, travelling southbound near Tuross Heads on the South Coast, when the driver at fault pulled out in front of him. Mr Evans’s motorcycle collided with the driver’s side of the vehicle at fault resulting in serious injury to Mr Evans.

2. I am asked to assess damages pursuant to the provisions of the Motor Accident Compensation Act, 1999 (the MAC Act) in respect of the injury sustained by the claimant.

3. The claim was listed for assessment on 8 February 2022. Mr Evans was represented by Ms Lesley Whalan of senior counsel, Mr Jamie Ronald of counsel, Ms Laura Green and Mr Jonathan Coyle of Longton Legal.

4. Allianz Australia Insurance Limited (the insurer) was represented by Mr Keith Rewell of senior counsel, Mr John Renshaw and Mr Tim McHutchison of McInnes Wilson Lawyers.

5. The insurer has admitted liability for the claim in a section 81 notice dated 31 August 2016.

6. The insurer sought credit for section 83 payments made on behalf of the claimant in the sum of $342,964.07 and section 84A payments made to the claimant in the sum of $90,000.

7. The parties agreed past gratuitous care should be assessed at the rate of $31.50 per hour.

8. The parties agreed future commercial care should be assessed at the rate of $48 per hour.

9. The claimant alleges he sustained the following injuries:

   ·closed head injury;

   ·comminuted intra-articular fracture of the left distal radius requiring open reduction and internal fixation;

   ·comminuted intra-articular fracture of the right distal radius requiring open reduction and internal fixation;

   ·displaced comminuted fracture of the left ulnar styloid;

   ·fracture of the right distal ulnar shaft requiring open reduction and internal fixation;

   ·open book fracture of the pelvis requiring open reduction and internal fixation of the symphysis pubis;

   ·injury to the bladder associated with the pelvic fracture;

   ·erectile dysfunction;

   ·fractures of the T6, T7, T8, T9 and T10 spinous process; and

   ·psychiatric injury

10. The following issues are in dispute:

    (a)   whether the claimant sustained a traumatic brain injury;

    (b)   whether the claimant sustained a significant psychiatric injury;

    (c)whether the claimant has any residual earning capacity and his likely earnings had the accident not occurred;

    (d)   the extent of care required by the claimant;

    (e)   the need for treatment arising out of the accident.

11. I had the opportunity to assess Mr Evans during the Assessment Conference. I formed the view he was an honest, stoic and straight forward man who not surprisingly is frustrated, maybe even angry about the circumstances in which he has found himself as a result of the accident.

12. I am asked to assess damages in respect of the following:

    ·        Non-economic loss.

    ·        Past treatment expenses.

    ·        Future treatment expenses.

    ·        Economic loss.

    ·        Past gratuitous assistance.

    ·        Past commercial assistance

    ·        Future commercial assistance.

TRANSITION OF EXISTING DISPUTES TO THE PERSONAL INJURY COMMISSION

1. The Personal Injury Commission commenced operation on 1 March 2021. The former Claims Assessment and Resolution Service was abolished by Clause 3 of Division 2 of Part 2 of Schedule 1 to the Personal Injury Commission Act2020, (the PIC Act). The PIC Act and the Personal Injury Commission Regulation 2020 (the Regulation) establishing the Commission provide that a new decision-maker may determine pre-existing disputes in accordance with the previously applying legislation.

2. Clause 14B(4)(c) of Schedule 1 of the Regulation provides that the provisions of any Act, statutory rule or other law that would have applied to determine the proceedings, had the PIC Act not been enacted, continues to apply.

THE PRE-ACCIDENT HISTORY

1. The claimant is now 51 years of age. He was aged 45 years at the time of the accident.

2. Mr Evans provided statements dated 2 July 2021, 1 December 2021 and 6 February 2022. He was also questioned during the assessment conference.

3. After leaving school during Year 11 Mr Evans completed an apprenticeship as a spray painter in Bega before working for Dulux selling paint. He then worked on dairy farms in the Bega area as a roustabout for about eight years. Mr Evans subsequently moved to Wagga Wagga where he drove trucks and interstate semi-trailers moving livestock and general freight for nine years.

4. Mr Evans married and had two children a son and daughter. In 2003 Mr Evans purchased a house in Bega. In about 2007 or 2008 Mr Evans and his family moved to Bega and for about two years he drove trucks for Steel Line Trucks delivering roofing products.

5. Mr Evans subsequently moved back to dairy farming. He leased a 440-acre farm called Willowview and purchased farm machinery. He kept over 300 cows with 200 of the herd in the dairy for milking and the other 100 in the paddock. He supplied milk to Bega Cheese.

6. It is apparent from the clinical records of Canning Street Surgery that Mr Evans had a history of depression dating from 17 July 2008 when he was prescribed Zoloft and subsequently Lexapro on 25 May 2010. The records show ongoing prescriptions of Lexapro until about 29 September 2014.

7. The claimant’s father died in 2013 and on 4 April 2014 Dr Bell psychiatrist provided a diagnosis of profound grief and changed the claimant’s medication.

8. When he was 35 years of age Mr Evans sustained a fracture to his left arm and about December 2014, he hyper extended his arm. Mr Evans states he does not remember significant pain or an impact on his ability to work although he did complain of right shoulder pain and neck pain whilst a patient at Bega Hospital on 22 February 2016.

9. On 6 December 2014 Mr Evans degloved his left thumb whilst trying to clear an Auger. On 20 February 2015 he underwent a left thumb skin graft and lengthening of the extensor tendon under care of Dr Nott. Mr Evans states this injury did not impact on his ability to work on the farm.

10. Sadly, on 19 January 2015 Mr Evans’ 17-year-old son Rory committed suicide by gunshot. Mr Evans subsequently developed depressive symptoms and medication was prescribed.

11. On 4 May 2015 Dr Bell psychiatrist concluded profound grief was the dominant process. During 2015 Mr Evans continued to work whilst struggling with his mental health.

12. Because his wife no longer wished to live on the farm Willowview where his son had died Mr Evans sold his house in Bega and purchased a 180-acre farm at Nambugger which he used to run his heifers.

13. In December 2015 Mr Evans had a CT scan of his neck and an x-ray of his right shoulder which were apparently normal.

14. Mr Evans attempted suicide and was admitted to Bega Psychiatric Hospital between 17 December 2015 and 6 January 2016. The hospital diagnosis was of an adjustment disorder secondary to psychosocial stressors including the death of his son and his turbulent relationship with his wife.

15. In early 2016 Mr Evan’s wife left him. Mr Evans attended Bega District Hospital on 11 January 2016, feeling anxious after attending the police station where police threatened to charge him. His wife had taken out an apprehended violence order against him.

16. Mr Evans was admitted to Bega District Hospital from 5 February 2016 to 10 March 2016 after an intentional carbon monoxide overdose resulting in atrial fibrillation, neuropathic pain of the bilateral forearms and headache. The clinical notes discuss refer to selling his cows, buying a Harley Davidson, an offer on the house, selling equipment and suggested a plan to buy a caravan and travel.

17. A Discharge Transfer Summary dated 11 March 2016 provided a diagnosis of alcohol and behaviour risk management.

18. Dr Gordon Elliott, psychiatrist provided a report dated 30 March 2016 after undertaking an assessment of Mr Evans following his admission to the Bega Mental Health Inpatient Unit. Dr Elliott reported there had been three psychiatric admissions in the preceding six months all precipitated by self-presentations with high-risk suicidal behaviour. He reported the episodes were precipitated by the death of the claimant’s son, the breakdown of his marriage and stressors associated with his dairy farm which he was in the process of selling. Mr Evans reported he was well, had formed a new relationship and reported he felt a sense of relief at not having to care for his dairy any longer. Dr Elliott concluded Mr Evans did not have a major mental illness but maladaptive personality traits that were more evident when he was under stress. Dr Elliott noted that despite an Axis 1 disorder the claimant had been prescribed Escitalopram, Lithium and Chlorpromazine.

19. At the time of the accident Mr Evans was still taking Escitalopram and Lithium. However, his evidence was that he had turned a corner, was starting to come good and had been given a clearance to return to living at home.

20. Mr Evans asserts prior to the accident he had intended to cease farm work at the end of 2016 and resume driving trucks interstate carrying livestock from early 2017. He intended to buy out his wife, to agist the land and to live in the house whilst working as a truck driver.

21. In early 2016 Mr Evans commenced a new relationship with Melinda Carey known as Min although that relationship ceased shortly before the accident.

22. As a younger man Mr Evans had been ranked fourth in the State for under 18’s tennis, was a sprinter in Athletics and won awards in Surf Life Saving. Prior to the accident Mr Evans played tennis frequently, including competition and weekend tennis. He also enjoyed riding motorcycles and played golf twice a month with friends. Mr Evans also enjoyed fishing and attending the gym.

23. Significantly the claimant is left hand dominant.

THE POST-ACCIDENT HISTORY

1. Police and Ambulance services attended the accident on 27 April 2016. Mr Evans was airlifted to the Canberra Hospital where he remained for five months until 27 September 2016.

2. In addition to the claimant’s orthopaedic injuries, it was noted that he had a small scalp contusion in the left frontal temporal region. Mr Evans reported a loss of consciousness. At the scene the ambulance recorded a Glasgow Coma Score of 15 but on admission it was 14. The Abbreviated Westmead PTA (post traumatic amnesia) Scale showed that generally the PTA fluctuated between 11 and 12. Mr Evans was admitted to neurosurgery for observation.

3. The claimant underwent a clinical neuropsychological assessment on 10, 11 and 12 May 2016. The report prepared for clinical purposes by Felicity Leslie, Clinical Neuropsychological Registrar stated:

   “The vast majority of Dean’s cognitive abilities were intact and commensurate with pre-morbid estimates”.

4. Further Ms Leslie concluded:

   “Whilst Dean continues to fluctuate on formal PTA testing on the ward, on the basis of the testing conducted and qualitative observations, he is likely not in PTA. The fluctuations on PTA testing and subtle deficits observed across Dean's cognitive profile are consistent with the effects of a TBI, with likely additional contributory factors including brain changes associated with his recent carbon monoxide poisoning, fatigue and mood. Of note, despite Dean denying any current psychological distress, the nature of comments made during the assessment, suggest ongoing concerns regarding his mood.”

5. An MRI scan of the brain dated 28 November 2017 found no evidence of previous cerebral microhaemorrhages.

6. Mr Evans underwent the following procedures whilst at Canberra Hospital:

   ·external fixation of the pelvic fracture on 27 April 2016;

   ·open reduction and internal fixation of the left distal radius on 27 April 2016;

   ·open reduction and internal fixation of right distal radius on 27 April 2016;

   ·debridement of the right arm wound on 27 April 2016;

   ·removal of screws and application of an external fixator to the left distal radius on 13 May 2016;

   ·application of a plaster cast to the right arm on 13 May 2016;

   ·removal of the external fixation of the left wrist and pelvis on 13 July 2016;

   ·right iliac crest pin insertion and removal of the right supra-acetabulum pin on 27 May 2016; and

   ·open reduction and internal fixation of the pubic symphysis and insertion of left sacroiliac joint percutaneous screw on 27 July 2016.

7. Whilst in Canberra Hospital Mr Evans sold the farm owned with his former wife.

8. Mr Evans was transferred to Gosford Private Hospital on 27 September 2016 for rehabilitation.

9. Gosford Private Hospital referred Mr Evans to Dr Louie-Johnson, urological surgeon who he consulted for the first time on 6 October 2016 in relation to penile shaft pain on voiding associating with some frequency and also erectile dysfunction. He consulted Dr Thomas Jarvie, urological surgeon on 1 June 2018. He recommended medication, namely Sildanafil and if that did not work, Caverject injections.

10. Mr Evans was discharged home to the care of his sister on the Central Coast on 14 October 2016. He resided with his sister who provided care until 17 November 2016.

11. After returning to Bega Mr Evans resided with a cousin for a while before buying a van and moving to the Caravan Park at Coila. He resumed a relationship with Ms Carey who he stayed with from time to time.

12. Since the accident Mr Evans has been in receipt of JobSeeker payments from Centrelink.

13. Dr Marchallack reported on 29 September 2016 that Mr Evans was still mobilising with one crutch and was still in the spinal brace. Dr Coughlan authorised the removal of the back brace on 13 October 2016.

14. On 27 October 2016 Moore Rehab Outcomes reported Mr Evans had noticed occasional decreased short-term memory and recommended the claimant undergo neuropsychological assessment. The assessment did not proceed because the claimant underwent further surgery. It was noted Mr Evans was independent with all personal care tasks using a modified technique and self-pacing although he otherwise remained significantly limited with regards to his functional tolerances.

15. On 7 November 2016 Moore Rehab Outcomes undertook an assessment of the claimant’s activities of daily living at his sister’s house at Long Jetty. Mr Evans reported ongoing pelvic pain, lower back and thoracic pain, bilateral upper limb pain and decreased short term memory. At that time the claimant continued to wear a back brace for one to two hours per day and was observed to be wearing bilateral splints.

16. On 31 October 2016 Mr Evans was assessed by Dr Jordan Wood who concluded in the longer-term Mr Evans would require a multidisciplinary pain assessment.

17. On 1 November 2016 Mr Evans underwent removal of the plate in the right ulnar and a right wrist arthroscopy under the care of Dr Stuart Myers at Prince of Wales Private Hospital.

18. On 7 February 2017 Mr Evans underwent left wrist arthrodesis and resection of the distal ulna at Prince of Wales Private Hospital under the care of Dr Stuart Myers.

19. On 8 September 2017 Dr Nott removed the anterior pelvic plate resulting in an improvement of his groin pain.

20. Mr Evans was admitted to Moruya District Hospital between 30 November 2017 and 3 December 2017 with abdominal pain, considered to be the result of post-surgical inflammatory changes adjacent to the pubic symphysis.

21. On 8 January 2018 Dr Nott removed the distal plate and screws from the left wrist.

22. In a report dated 26 March 2018 Dr Myers stated he thought that Mr Evans had non-union of the middle carpometacarpal joint arthrodesis and recommended revision plating of the non-union and bone graft.

23. Mr Evans underwent left middle carpometacarpal joint fusion and bone graft on 27 March 2018 at Prince of Wales Private hospital.

24. Mr Evans was reviewed by Professor Paul Smith on 8 April 2019. He reported his main problems were developing pain around the right hip. Professor Smith reported a reduced range of motion of the right hip and irritability at the extremes of movement. He concluded Mr Evans will require hip replacement surgery. Following a bone scan Professor Smith noted increased activity in both sacroiliac joints consistent with his pelvic ring trauma.

THE MEDICO-LEGAL EVIDENCE

Dr Stephen Buckley

1. Mr Evans was assessed by Dr Stephen Buckley on 14 August 2017. He provided a report dated 5 September 2017. Mr Evans described his worst problems as the mid-thoracic back pain, following by left hand and wrist pain and impaired memory. He also described pelvic pain, pain in the region of the right hip and impotence. Dr Buckley advised he required additional records to address whether Mr Evans had sustained a brain injury.

2. Dr Buckley reviewed Mr Evans on 20 August 2020 and provided a report dated 24 September 2020. He reported considerable difficulty with his bladder, back pain, impaired sexual function, whilst noting the pelvic fractures and the wrist fractures were more or less stable.

3. Dr Buckley reported the bladder problems were not too bad with no major episodes of incontinence, but Mr Evans found he “dribbled” into his underclothes. He identified a constant back pain made worse by activity with only limited tolerance for walking. Dr Buckley reported Mr Evans was completely impotent and at that time had a complete loss of libido. He continued to experience constant pain in the left, fused wrist, and restriction of movement of the right wrist. He continued to experience pain and restriction of movement of the right hip and noted he had deferred undergoing a total hip replacement until he was able to move from the caravan to a house because of the difficulty of access in a caravan. He also complained of numbness at the top of the right thigh.

1. Dr Buckley reviewed the ambulance report and the records of the Canberra Hospital and concluded Mr Evans had sustained an assessable brain injury as per the Motor Accident Permanent Impairment Guidelines.

2. Dr Buckley expressed the view Mr Evans was unemployable on the open employment market. He provided the following opinion as to diagnosis:

   ·assessable brain injury requiring neuropsychological assessment;

   ·multiple thoracic spine crush fractures without neurological impairment;

   ·left wrist fracture with a reduced range of movement;

   ·open book fracture of the pelvis;

   ·severe bladder scarring causing urinary incontinence; and

   ·marked sexual dysfunction with impotence.

Dr John Cummine

1. Dr Cummine, orthopaedic specialist assessed the claimant and provided a report dated 7 October 2020. He noted the claimant’s medications were limited to Tramadol SR and/or Tramadol twice per week and Osteo Panadol.

2. Dr Cummine reported constant pain in the left wrist, a reduction in range of motion of the right wrist, constant pain in the pelvic region, discomfort in the region of both hips, particularly the right hip and pain in the right groin. He reported the claimant could walk approximately two kilometres and in terms of bladder function still had some terminal dribbling. Dr Cummine reported constant pain in the thoracic spine aggravated by any attempt to lift or bend.

3. Dr Cummine reported Mr Evans was at risk of developing osteoarthritis in the right wrist, of developing degenerative change in the discs adjacent to T7 and possibly in the right hip. He agreed it was likely the claimant will require right total hip replacement and possibly left total hip replacement.

Dr Stephen Allnutt

1. Dr Allnutt, psychiatrist assessed the claimant at the request of his lawyers and provided a report dated 23 December 2019. He reported Mr Evan’s memory for events, particularly dates was unclear and suggested he may have suffered some cognitive damage.

2. Dr Allnutt reported prior to the accident the claimant drank rarely and did not use illicit or recreational drugs. The claimant conceded he was irritable and short tempered, and his concentration had worsened. Dr Allnutt noted:

   “He did not like himself and attributed this to feelings of guilt about his son’s suicide and his perception of his role as a father to protect his family. He had confidence in his decision-making but was struggling to maintain interest in things and felt, to some degree, as it he had lost direction. His capacity to enjoy things was improving, he was not experiencing suicidal thoughts and could not recall experiencing panic attacks.”

3. Further, Dr Allnutt reported at the time of the accident Mr Evans had been attending to his activities of daily living, such as diet, exercise and health, although his preference was to avoid social situations.

4. When asked how he felt at that time the claimant described his sense of loss, having “lost all”, “lost his way in life” and “lost his farm”. He reported a persistent, daily sadness, diminished motivation, irritability and emotional volatility. He also reported impaired memory and a loss of focus, describing himself as “useless” and “worthless”. He reported episodes of shakiness, shortness of breath and palpitations. The legal process triggered anxiety.

5. Dr Allnutt reviewed the relevant medical records. He reported Mr Evans had seen Lyn Tremblay, psychologist monthly until about two months earlier. In a report dated 13 February 2019 Ms Tremblay noted anxiety, post-traumatic stress disorder and low mood as a result of being a failure to his family and partner and guilt about his son’s death.

6. He noted the clinical notes from 23 August 2017 until 12 November 2019 referred to scripts for Lithium and Olanzapine, the latter apparently ceasing on 16 October 2018.

7. In a letter dated 1 February 2019 Dr Riddell referred to a presentation with anxiety with post-traumatic stress disorder. In an earlier report dated 16 October 2018 Dr Riddell referred to finding his dead son, Rory who committed suicide, his divorce, losing his farm and a motorbike accident with multiple injuries.

8. Dr Allnutt refers to a report from Trisha Atkin, mental health clinician dated 18 July 2018 who reviewed the claimant following his admission to Canberra Hospital. He was started on Escitalopram and Lithium to maintain a stable mental state and was receiving weekly psychological assessment.

9. Dr Allnutt noted Mr Evans manifested anxiety and depressive symptoms and also diagnosed a panic disorder.

10. In terms of the head injury Dr Allnutt stated:

    “I understand he had a period of post-traumatic amnesia and suffered a head injury at the material time of the index injury. Neuropsychological testing in May 2016 found cognitive impairments that were subtle deficits consistent with the effects of a traumatic brain injury. He performed poorly on a Mini Mental Status Examination (MMSE) when he saw me, described difficulties with memory, and feeling easily overwhelmed, which could be due to ongoing cognitive difficulties that compound his anxiety because they undermine his confidence.”

11. He concluded the accident made a substantial contribution to the claimant’s mental state. Dr Allnutt concluded the prognosis for the foreseeable future was poor stating:

    “Therefore, while there is evidence for a pre-existing condition at the material time of the index injury, the index injury itself has resulted in an aggravation of his anxiety and depressive condition. His persistent physical disability arising from the accident acts as a perpetuating factor for his depression, and it possible that cognitive difficulties, compounded with his physical difficulties, undermine his self-confidence and contribute to aggravation of his panic disorder”.

Dr Angelo Virgona

1. Dr Virgona, consultant psychiatrist assessed Mr Evans and provided a report dated 3 December 2020. Dr Virgona noted in the last clinical record before the accident the claimant was not presenting with significant anxiety or depressive symptoms. However, he concluded it was likely at the time of the accident Mr Evans had some residual post-traumatic stress disorder symptoms related to the death of his son.

2. Dr Virgona concluded the claimant may have suffered a mild traumatic brain injury and that his recall of events in hospital may have been clouded by his analgesic use at that time.

3. Dr Virgona reported:

   “He describes being frustrated and somewhat depressed by his pain and associated limitations, as well as losses incurred as a result of the accident. He is distressed by his impotence. He reports being particularly worried about the future. He describes some assistance from the psychological therapy with adjusting to these circumstances. He described a reasonable range of functioning within his reported physical limitations and had a capacity for enjoyment.”

4. Dr Virgona found as a consequent of the accident Mr Evans suffered from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.

Report of Professor Bruce Brew

1. Professor Brew, Neurologist assessed the claimant and provided a report dated 17 January 2020. He concluded the claimant had sustained a mild traumatic brain injury stating:

   “In relation to the traumatic brain injury, I say this is mild because the Glasgow Coma Scale score at the scene was 15 out of 15. It did drop to 14 out of 15, but in the context of Ketamine administration. Secondly, whilst the degree of post traumatic amnesia is not entirely clear and in fact Mr Evans has no memory until he woke up in the spinal ward at the Canberra Hospital, it is nonetheless recorded by the clinical neuropsychologist assessment that he had a normal score on the formal PTA testing on the day after the accident. He does report loss of consciousness at the scene of the accident, but the duration is unclear. Whilst he had a fluctuating PTA assessment in hospital, the more formal assessment by Felicity Leslie on 12 May 2016 showed essentially normal cognition”.

2. Professor Brew noted the unremarkable MRI scan of 28 November 2017 with no evidence of microhaemorrhages which would be expected if there were significant traumatic brain injury.

3. However, he also noted Mr Evans complained of forgetfulness, losing track of conversation and some difficulties with planning.

4. Professor Brew reported the diagnosis of a mild traumatic brain injury puts the claimant at risk, albeit small, of future seizures and he also noted that he is at risk of degenerative arthritic changes, particularly in the right hip, the pelvis, the thoracic spine and the wrists.

Dr Grant Walker

1. Dr Walker, consultant neurologist assessed the claimant and provided a report dated 30 September 2020. The main symptoms reported by Mr Evans was thoracic pain which was constant and affected by positioning of his back. Whilst Mr Evans has ceased taking Endone and Targin he was taking Tramal and Panadol Osteo. He also reported pain and restriction of movement of the right wrist. He noted the fusion of the left wrist and the recommendation for right hip replacement surgery.

2. Dr Walker did not accept the claimant had sustained a traumatic brain injury because “there was no proven loss of consciousness, his Glasgow Coma Scale was normal at the scene, there was no post-traumatic amnesia recorded, and later he had normal imaging”. He concluded the claimant’s cognitive functioning was influenced by his mental health issues

Associate Professor Farnsworth

1. Associate Professor Farnsworth, urologist assessed Mr Evans on 5 March 2020. He reported the claimant’s bladder was functioning normally. In respect of sexual function, he opined that as a consequent of the pelvic injury, the minor sacral nerves or the minor blood vessels, both of which are relevant to erectile function were damaged and have led to the impaired erections described by Mr Evans. He expressed the view there was no chance of spontaneous improvement in erectile dysfunction.

2. He suggested if medication and penile injections were not successful an artificial erection may be achieved with a penile implant where a prosthetic device is inserted in the shaft of the penis with an intraabdominal reservoir and a pump in the scrotum. However, at that time he noted Mr Evans emotional state was such that he could no longer cope with any further attempts at artificial erections.

Dr Robert Wines

1. Dr Wines, urologist assessed the claimant and provided a report dated 22 July 2021. He reported as a result of the open book fracture and the separation of the symphysis pubis it is likely that the associated blood vessels and nerves supplying the penis and erectile mechanisms were damaged resulting in the erectile impotence.

2. He concluded it was unlikely Mr Evans will ever regain the ability to obtain and maintain an erection satisfactory for intercourse.

3. Whilst Dr Wines noted the claimant was currently experiencing reduced libido, he recommended the insertion of an inflatable penile prosthesis.

THE INJURY SUSTAINED BY THE CLAIMANT

1. There is no dispute the claimant sustained the following orthopaedic injuries:

   ·comminuted intra-articular fracture of the left distal radius requiring open reduction and internal fixation;

   ·comminuted intra-articular fracture of the right distal radius requiring open reduction and internal fixation;

   ·displaced comminuted fracture of the left ulnar styloid;

   ·fracture of the right distal ulnar shaft requiring open reduction and internal fixation;

   ·open book fracture of the pelvis requiring open reduction and internal fixation of the symphysis pubis; and

   ·fractures of the T6, T7, T8, T9 and T10 spinous process.

2. It is also agreed he suffered injury to the bladder associated with the pelvic fracture and erectile dysfunction.

Traumatic brain injury

1. In dispute is whether the claimant sustained a traumatic brain injury (TBI). It is clear the claimant sustained a small scalp contusion in the left frontal temporal region due to the accident.

2. The competing neurological opinions as to the traumatic brain injury are provided by Professor Brew and Dr Walker. I prefer the opinion of Professor Brew where it is consistent with the opinion of Felicity Leslie, the Clinical Neuropsychologist Registrar. Even though she reported essentially normal cognition when Mr Evans was assessed on 12 May 2016, she still concluded the fluctuations on PTA testing and subtle deficits were consistent with the effects of a TBI caused by the accident but also the recent carbon monoxide poisoning, fatigue and mood.

3. Dr Allnutt also reported Mr Evans performed poorly on a Mini Mental Status Examination, described difficulties with memory, and felt easily overwhelmed.

4. However, the assessments undertaken at the Canberra Hospital and the unremarkable MRI scan of 28 November 2017 with no evidence of microhaemorrhages, demonstrate that any TBI was at best, mild.

5. I am also satisfied that psychological factors played a role in any cognitive deficit as suggested by Ms Leslie, who recommended psychiatric and psychological treatment. Furthermore, whilst Dr Walker did not accept there had been a TBI he concluded the claimant’s mental health issues impacted his cognitive functioning.

Psychological injury

1. The other area of dispute is the extent of any psychological injury resulting from the accident having regard to the claimant’s pre-accident psychological condition. The insurer submits the injury was no more than a minor and probably temporary aggravation of a pre-existing depressive condition.

2. As I have already indicated Ms Leslie concluded psychological factors played a part in the claimant’s presentation whilst at the Canberra Hospital.

3. As at December 2019 Dr Allnutt concluded the accident aggravated the claimant’s pre-existing anxiety and depressive condition which was perpetuated by his persistent physical disability. He reported a persistent daily sadness, diminished motivation, irritability and emotional volatility.

4. Whilst Dr Virgona concluded the claimant was still experiencing residual symptoms of post-traumatic stress disorder at the time of the accident, he also concluded the claimant was frustrated and depressed by his pain and physical limitations. He noted he was distressed by his impotence.

5. Of particularly significance has been the impact of the erectile dysfunction on the claimant’s psychological functioning. As of 5 March 2020, Professor Farnsworth noted Mr Evans emotional state was such that he could no longer cope with any further attempts at artificial erections. In July 2021 Dr Wines reported the claimant informed him his inability to maintain an erection was embarrassing and “affects his mental health”. Dr Wines concluded the reduction in the claimant’s libido was possibly secondary to psychological factors.

6. In his statement dated 2 July 2021 Mr Evans stated:

   “Now I am plagued with pain, restriction and fatigue and have been unable to work. I often feel angry and depressed about my injuries and how my life has changed and how this accident has impacted on my ability to have relationships and has taken away my ability to be intimate with my partner. I am worried about the future and my health deteriorating and how I am going to continue to look after myself.”

7. I am satisfied the claimant has suffered a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood although I accept the claimant’s pre-existing condition may be a contributing factor to his current psychological condition.

THE ASSESSMENT OF DAMAGES

Non-economic loss

1. Section 3 of the Act defines non-economic loss as including pain and suffering, loss of amenity of life, loss of expectation of life and disfigurement.

2. The claimant submitted an appropriate assessment of non-economic loss was $500,000. The insurer submits an appropriate allowance for non-economic loss would be $300,000. The current maximum payable for non-economic loss is the sum of $595,000.

3. The pain and suffering experienced by Mr Evans to date has been significant. The claimant sustained serious injury in the accident and was initially hospitalised at Canberra Hospital for five months where he underwent numerous surgical procedures as set out in paragraph 41 above. The claimant wore a back brace for over five months and as of 7 November 2016 was still wearing bilateral splints.

4. He was transferred to Gosford Private Hospital for rehabilitation for a further two weeks before being discharged into the care of his sister where he remained for another two plus weeks. The claimant underwent further surgical procedures on 1 November 2016, 7 February 2016, 8 September 2016, 8 January 2018, and on 27 March 2018.

5. As a result of the accident the claimant has been unable to afford accommodation other than in a caravan, where he has resided since 2017.

6. Whilst right hip replacement surgery has been recommended Mr Evans has deferred the surgery because of the access difficulties posed by his current accommodation.

7. There is always the possibility of revisionary hip replacement surgery and Dr Cummine was also of the view the claimant may possibly require future left total hip replacement. During the assessment conference the claimant suggested removal of the hardware from the pelvis had also been discussed. Further, the claimant may undergo surgery for the insertion of an inflatable penile prosthesis.

8. The claimant continues to suffer from constant pain in his left wrist, a reduction of the range of motion of his right wrist, constant pain in the pelvic region, pain and restriction of movement of the right hip, pain in the right groin region, constant thoracic spinal pain, restrictions in bending, lifting, sitting, walking and physical activity generally.

9. The claimant is unfit to return to work as a dairy farmer or as a truck driver and, is largely unfit for employment.

10. The claimant experiences erectile dysfunction, as he said he cannot be “like a normal man” which affects his self-view, his capacity for intimacy and the possibility of any future relationship.

11. Mr Evans suffers from depression and anxiety as a result of his chronic pain, he worries about his future, the impact of his physical injuries on both his earning and domestic capacity, his sexual dysfunction and his capacity for future relationships. Unfortunately, it seems the claimant’s psychological condition undermines his capacity to cope with his physical limitations.

12. Mr Evans is no longer able to enjoy recreational activities such as tennis and golf, nor can he ride a motor bike. He can go fishing with the assistance of a friend.

1. Mr Evans was 45 years of age at the time of the accident, and he is now 51 years of age with a life expectancy of 33 years. Even with some expected improvement in his right hip pain as a result of the hip replacement surgery the medical evidence suggests there is only likely to be an inexorable increase in the claimant’s pain and disability with the development of degenerative change in the thoracic spine, right hip, pelvis and both wrists likely.

2. The impact of this accident on every facet of this man’s life has been significant and I consider an appropriate award for non-economic loss to be the sum of $400,000. I assess damages accordingly.

Past commercial assistance

1. The insurer provided commercial domestic assistance for a time. The amount paid is included in the past treatment expenses paid by the insurer pursuant to section 83 of the MAC Act.

Past gratuitous assistance

1. An entitlement to recover damages for gratuitous assistance arises where a need for care or domestic assistance has been caused by the accident. However, s 141B of the MAC Act imposes a threshold prohibiting the recovery of compensation for services provided for less than six hours per week and for less than six months.

2. After his discharge from hospital the claimant stayed with his sister Donna on the Central Coast from 14 October 2016 to 17 November 2016. He then stayed with his cousin in Bega for a short period of time before purchasing his caravan and moving to Coila. According to the report of Ms Caukill Mr Evans also stayed with another Cousin Cody Backhouse in Bega following surgery on at least two occasions for at least eight weeks in total.

1. The claimant relies upon an occupational therapy report of Lindy Williams of the Lighthouse Health Group dated 16 May 2019 and a nursing services and equipment report of Jane Burns of the same date.

2. The claim for care is particularised as follows:

Particulars of claim

Amount claimed

27 April 2016 to 13 July 2016 (11 weeks)

Personal, domestic, transport and general assistance by Mr Evan’s mother for 8 hours per week @ $25 per hour

$200 x 11 weeks

$2,200

14 July 2016 to 27 September 2016 (11 weeks)

Personal, domestic, transport and general assistance by Mr Evan’s sister for 33 hours per week @ $25 per hour

$825 x 11 weeks

$9,075

28 September 2016 to 14 October 2016 (2.5 weeks)

Personal, domestic, transport and general assistance by family members for 43.6 hours per week @ $25 per hour

$1090 x 2.5 weeks

$2,725

14 October 2016 to 17 November 2016 (5.1 weeks)

Personal, domestic, transport and general assistance by Mr Evan’s sister for 18.4 hours per week @ $25 per hour

$460 x 5.1 weeks

$2,346

18 November 2016 to 14 May 2019 (130 weeks)

Personal, domestic, transport and general assistance by Ms Carey for 14 hours per week @ $25 per hour

$350 x 130 weeks

$61,846

Total past gratuitous care

$61,846

1. Ms Williams undertook an assessment at the home of Melinda Carey on 12 February 2019 where she reported Mr Evans spent a great deal of time. This is not consistent with the claimant’s testimony at the assessment conference. He stated whilst he stayed friends with Ms Carey they were not in a relationship after 2017.

2. Mr Evans stated he might have stayed at Ms Carey’s house one night a fortnight when she undertook all domestic tasks. Otherwise, Mr Evans stated Ms Carey provided only limited assistance, maybe a bit of shopping, washing the doona cover and changing the bed, which he struggled to do.

3. Since living in the caravan a friend Keith has assisted Mr Evans once a week with his washing. Mr Evans stated he otherwise battled to care for himself in the caravan which he pointed out was only 19 feet by 4 foot and required only limited cleaning. Because he was unable to comfortably use the shower and toilet in the caravan Mr Evans stated he used the amenity block in the caravan park.

4. Ms Williams reported Mr Evans has difficulty with the following tasks:

   ·sweeping;

   ·vacuuming;

   ·mopping;

   ·changing sheets on the bed;

   ·cooking;

   ·washing up due to difficulty with static standing;

   ·washing;

   ·shopping;

   ·lawn care and gardening, and

   ·washing the car.

5. The insurer relies on an occupational therapy report of Ms Kathryn Caukill dated 9 March 2021. Ms Caukill assessed Mr Evans in his caravan at Coila on 11 November 2020. Ms Caukill reported:

   “Functionally, he presents with chronic pain and with some restrictions to his range of motion, strength and activity endurance. He is left hand dominant, and he has functional restrictions to his left hand (more so than right hand). This impacts his capacity for everyday activities with heavy physical demands and bilateral activity requiring hand strength. He is independently mobile, independent in personal care and requires some assistance with heavier domestic tasks”.

6. Ms Caukill assessed a past need for care for a total of 70 hours up to 17 November 2016 at the statutory rate of $31.50 per hour which equates to $2,200. From 8 November 2016 Ms Caukill assessed a need for past care of two hours per week which falls below the statutory threshold of six hours per week. This is in addition to the past assistance paid by the insurer.

7. In accordance with the decision in Nicholson v Nicholson 21 MVR 125 there is no entitlement to recover damages for gratuitous care whilst hospitalised. Therefore, there is no entitlement to recover damages for gratuitous care during the entire period of hospitalisation from 27 April 2016 until 14 October 2016.

8. During the period the claimant resided with his sister on the Central Coast and up until he commenced to reside in his caravan at Coila in 2017 the claimant received commercial care paid for by the insurer.

9. It is difficult to assess the claim for past gratuitous care because the evidence of the claimant about the care provided by Ms Carey is inconsistent with the history recorded by Ms Williams who assessed the claimant at the home of Ms Carey on 12 February 2019. I also note Ms Burns reported Ms Carey advised her on 14 May 2019 that she and the claimant had broken up not long after the assessment. I am satisfied the report based on the assessment undertaken on 12 February 2019 is a contemporaneous record and more reliable than the claimant’s testimony at the assessment conference which is dependent on his memory of events some three years earlier. I propose to assess the claim on the basis the claimant continued to receive assistance from Ms Carey until that date.

10. Having regard to the extent of the claimant’s orthopaedic injuries I also accept that the gratuitous care received by the claimant exceeded the threshold set by section 141B of the MAC Act, although I do not accept the assistance reached 14 hours per week as suggested by Ms Williams.

11. On the basis Mr Evans commenced to live in the caravan at Coila in early 2017 I propose to assess past gratuitous care for a period of two years from on or about mid-February 2017 until on or about mid-February 2019.

12. Ms Carey provided a statement dated 27 July 2021 in which she stated she assisted the claimant by cooking meals, doing his washing and grocery shopping and driving him to his medical appointments. I also accept that Mr Evans stayed with Ms Carey at her house on a regular basis and on those occasions, she undertook all domestic tasks. Whilst there was undoubtedly some variation in the hours of assistance provided each week I propose to compensate Mr Evans on the basis he received gratuitous assistance from Ms Carey, and also from his cousin following surgery for an average of one hour per day or seven hours per week during that period.

13. The parties agreed damages for past gratuitous care should be assessed at the rate of $31.50 per hour.

14. Accordingly, I calculate damages for past gratuitous care at 7 hours per week x $31.50 per hour x 104 weeks in the total sum of $22,932.

Future commercial assistance

1. A claim for future commercial assistance is made in the total sum of $1,163,808.74 based on the opinion of Ms Williams and Ms Burns of the Lighthouse Health Group.

2. In her report Ms Williams recommends a need for assistance for four hours per week for heavy domestic tasks such as cleaning the kitchen and bathrooms, mopping, sweeping, vacuuming, heavy laundry and bed making. She also recommended the need for four hours assistance per month for garden and lawn care if living in a free-standing home and handyman services of one hour per month for basis home maintenance. She also recommended an additional 12 hours per year for seasonal cleaning.

3. Ms Burns assessed a need for additional assistance with light domestic tasks such as laundry, meal planning, meal preparation and shopping and in addition she reported the claimant required assistance with organisational tasks such as paperwork, planning and leisure activity. Ms Burns assessed the need for light domestic tasks at six hours per week until age 55 increasing to 10 hours per week after age 55. She assessed the need for organisational assistance at four hours per week until age 55 and two hours per week thereafter. She also suggested the claimant would require an additional allowance of one week per annum following illness or surgery and after age 55 a travel companion for four weeks each year.

4. The insurer relies upon the opinion of Ms Caukill who assessed a need of two hours per week for cleaning, one hour per month for garden maintenance, one hour per month for home maintenance and one car wash per month.

5. Mr Evans was questioned at the assessment conference about his future plans. He made it clear his preference is to live out of town in a two-to-three-bedroom house on a small block, of say two to five acres. Mr Evans stated he had never lived in town and felt it would be better for his mental health if he was able to live out of town.

6. It was suggested to Mr Evans he could manage with the assistance of a cleaner for four hours per fortnight. Mr Evans indicated he had allergies to dust and would prefer the cleaning to be undertaken weekly. Mr Evans was also adamant that it would be necessary for grass to be mowed at least weekly.

7. Assuming Mr Evans resided in an average size suburban cottage Dr Buckley recommended a need for indoor domestic assistance of five hours per week and handyman assistance of three hours per week.

8. Dr Cummine noted Mr Evans suffered an increase in pain when bending and lifting and as a result he experienced pain when cooking, washing up and vacuuming.

9. I do not find the opinion of Ms Burns of assistance. I do not accept there is any need for assistance with meal planning, meal preparation, organisational tasks, paperwork or with planning activities. Nor do I accept a travel companion will be required by Mr Evans after he reaches 55 years of age.

10. Following resolution of his claim I accept Mr Evans is likely to purchase a two-to-three-bedroom house on a small acreage out of town.

11. I find there is a need for weekly assistance with heavy domestic tasks involving vacuuming, mopping, sweeping, cleaning the bathroom, changing the bed, shopping and with heavier laundry tasks. I consider it appropriate to allow three hours per week.

12. The question is whether the claimant is entitled to recover the cost of maintaining a small block of two to five acres of land. I was referred to the decision of the Court of Appeal in Dang v Chea [2013] NSWCA 80 where Garling J reiterated the principle that the aim of an award of damages was not to fulfil the ideal requirements for an injured plaintiff, but the reasonable requirements. His Honour referred to the following paragraph of Windeyer J in Chulcough v Holley (1968) 41 ALJR 336 at [338]:

    "A plaintiff is only entitled to be recouped for such reasonable expenses as will reasonably be incurred as a result of the accident. What these are must depend upon all the circumstances of the case - including the particular plaintiff's way of life, prospects in life, family circumstances and so forth. It does not follow that every expenditure which might be advantageous for a plaintiff as an alleviation of his or her situation or which could give him or her happiness or satisfaction must be provided for by the tortfeasor."

13. In this case Mr Evans has always resided out of town on a farm or small property. His wish to live out of town is not a whim, it is his way of life, and I am of the view it is reasonable that he should be given the opportunity to continue to do so.

14. However, living out of town on small acreage creates a greater need for assistance with gardening and lawnmowing, noting Mr Evans said the need to keep the grass down to combat the presence of snakes and other vermin. For these reasons I assess damages for gardening, lawnmowing and handyman tasks at two hours per week.

15. I am aware of the decision of the Court of Appeal in Nominal Defendant v Ismail [2014] NSWCA 432 where the court stated some allowance must be made for the needs of most elderly people for domestic assistance in their later years. However, having regard to the extent of the claimant’s orthopaedic injuries I am of the view any such allowance should be weighed against the very likelihood of a deterioration in his condition as he ages. For this reason, I propose to allow future care for the remainder of the claimant’s lifetime.

16. When assessing damages for future commercial care I propose to apply a discount of 15% for the vissisitudes of life. In Avopiling Pty Limited v Bosevski [2018] NSWCA 146 the Court of Appeal suggested it is appropriate to discount all future losses for the vicissitudes of life regardless of whether life tables have been used.

17. Accordingly, I allow future commercial care in respect of domestic, gardening and handyman tasks calculated at the agreed rate of $48 per hour for five hours per week. The claimant has a life expectancy of 33 years and the multiplier for 33 years on the 5% tables is 855.7. I calculate 5 hours per week at $48 per hour x 855.7 less 15% for the vicissitudes of life in the sum of $174,562.80.

18. In addition, I consider it is appropriate to allow the cost of car washing at the rate of $10 per service per month or $10 per week. I calculate $10 per week x 855.7 less 15% for the vicissitudes of life in the sum of $7,273.45.

19. I assess total damages for future commercial care in the sum of $181,836.25.

Past treatment expenses

1. The parties agreed past treatment expenses in the sum of $345,742.92 including s 83 payments made by the insurer in the sum of $342,964.07 and treatment expenses paid by Medicare in the sum of $2,778.85.

Future Treatment Expenses, travel expenses and equipment needs

Psychological/psychiatric treatment

1. A claim is made for 24 consultations with a psychologist at $288 per session in the total sum of $6,765. A claim is also made for psychiatric treatment being 12 consultations at a cost of $288 per session in the total sum of $3,382.89.

2. Dr Allnutt recommended consultations with a psychologist weekly or two-weekly over six to 12 months at a cost of $225 to $350 per hour. He also recommended four to six consultations with a psychiatrist with less frequent contact thereafter, also at a cost of $225 to $350 per hour. Dr Virgona recommended further psychological therapy of six to eight sessions at a cost of about $250 per session.

3. The insurer submits the sum of $5,000 is sufficient to treat any accident-related psychiatric symptoms.

4. I propose to allow the sum of $7,000 in respect of the cost of psychological and psychiatric treatment.

Hip replacement surgery

1. Professor Paul Smith, Dr Buckley and Dr Cummine support the need for right total hip replacement surgery. The following table refers to the cost estimates provided:

Prof Smith	Dr Buckley	Insurer
Theatre fee	$5,320
Surgeon’s fee	$7,296.25
Assistant fee	$952
Hip prosthesis	$17,970
Bed costs (7 days)	$10,010
Anaesthetist	$2,352
Pathology	$607.50
Radiology	$820
Rehabilitation – bed cost (14 days)	$18,200
Rehabilitation specialist	$1,425
Total	$7,296.25	$57,656.50	$30,000

1. The claimant submits I should allow the sum of $64,952.75 plus the cost of two revisionary surgeries as recommended by Dr Buckley in his report dated 5 September 2017.

2. The insurer submits the claimant may need one revision but that it will be deferred 15 to 20 years and the present value of the cost of the revision will not exceed $15,000. Whilst Dr Cummine did not comment on the need for revisionary surgery, he also suggested the claimant may require left total hip replacement.

3. Noting the claimant’s life expectancy of 33 years I only propose to allow for one revisionary surgery.

4. I propose to allow the sum of $90,000 for hip replacement surgery to take into account the costs of one revisionary surgery to the right hip and the possibility of left hip replacement surgery.

General practitioner review

1. A claim is made for the cost of monthly general practitioner reviews, including two extended consultations in the total sum of $23,945.45 in accordance with the recommendation of Dr Buckley.

2. The insurer accepts the claimant may have to visit his general practitioner six times per annum in relation to his orthopaedic injuries and makes an allowance of $5,000.

3. I do not accept the claimant is likely to require monthly general practitioner reviews. I consider six consultations per annum to be appropriate for the claimant’s lifetime. I allow 6 consultations per annum at a cost of $83 per consultation or $9.57 per week. I calculate $9.57 x 855.7 less 15% for the vissisitudes of life in the sum of $6,960.68

Medication

1. The claimant relies upon the Lighthouse Health Group report to support a need for Panadol Osteo, Caverject injections and Nuromol at a cost of $29.35 per week or the sum of $25,417.33 over the claimant’s lifetime.

2. Associate Professor Farnsworth provided a report dated 16 December 2021. He stated Cialis medication costs $3 to $5 per tablet whilst Caverject injections would incur the cost of the medication at $50 for six injections and $5 per injection for sterile syringes and needles.

3. A claim is made for the cost of anti-depressant medication for one year at a cost of $23.07 per week in the total sum of $1,174.62. Dr Virgona noted the claimant may require antidepressants at some point due to his pre-existing vulnerability.

4. The insurer accepts the claimant will require pain-killing medication for his orthopaedic injuries and may have a greater need for anti-depressant medication in the short term. The insurer submits $17,000 or around $20 per week over the claimant’s life expectancy is appropriate for the cost of medication.

5. I note the submissions of the parties and propose to allow the sum of $20,000 in respect of future medication costs.

Consultations with a urologist

1. A claim is made for 12 consultations with a urologist at a cost of $6,765 78.

2. The insurer makes no comment on the need for review by a urologist. However, having regard to the severity of the claimant’s urological injury and the treatment options available I consider it appropriate to make an allowance for ongoing review by a urologist in the sum of $5,000.

Orthopaedic review

1. A claim is made for twice annual review by an orthopaedic upper limb surgeon. In accordance with the recommendation made by Dr Buckley a claim is made in the total sum of $3,412.47.

2. A claim is also made for the cost of annual review by an orthopaedic specialist in respect of the claimant’s hip and pelvic injuries in the sum of $1,615.23.

3. The insurer concedes the claimant may need supervision by an orthopaedic surgeon two to three times per annum and the present value over the claimant’s lifetime is $20,000.

4. I agree with the insurer. The claimant has sustained multiple serious orthopaedic injuries and it would be appropriate to allow the sum of $20,000 to cover the cost of orthopaedic review over the course of the claimant’s lifetime.

Penile implant

1. Professor Farnsworth provided a report dated 16 December 2021 in which he provided various costings. The cost of surgical intervention for the insertion of a penile implant with a prosthetic device would include the cost of the prosthetic device of $3000 to $12000, the surgeons fee of $5000 to $15000, the anaesthetist’s fee calculated at 30% of the surgeon’s fee and the cost of hospitalisation of $2000 to $3000. Notably Dr Wines stated the AMA fee for the surgeons’ fee was $3,365.

2. The insurer submits the claimant is unlikely to submit to such surgical intervention.

3. The evidence was the claimant is currently trialling medication, but it is not inconceivable that Mr Evans may opt for an implant in the event he forms a further relationship and I propose to allow the sum of $12,000 for such surgery.

Pain management/physical therapies

1. In accordance with the recommendation of Dr Buckley a claim is made for 12 physiotherapy treatments per annum for the remainder of the claimant’s lifetime in the sum of $30,138.46.

2. A claim is also made for annual membership of a gym or club with heated swimming facilities at a cost of $1,612 per annum in the total sum of $26,842.90.

3. A claim is also made for alternative therapy such as massage at an annual cost of $4,160. Ms Caukill reported Mr Evans undergoes remedial massage through Coco Calm in Moruya every couple of months which he reported to be beneficial.

4. The insurer allows the sum of $10,000 for intermittent physiotherapy.

5. I note Dr Cummine believed the claimant’s condition had largely plateaued and other than therapy following surgical interventions did not consider physiotherapy, hydrotherapy, acupuncture or massage were likely to significantly benefit the claimant.

1. However, noting the future proposed surgery and the possibility of deterioration as a result of degenerative change together with the benefit the claimant obtains from remedial massage, I consider it appropriate to make an allowance for the cost of future physical therapies and adopt the insurer’s figure of $10,000.

Occupational therapy

1. A claim is made for the cost of occupational therapy, alternative therapy and podiatry as per the Lighthouse Health Group report dated 16 May 2019 at an annual cost of $6016.82 for the remainder of the claimant’s life in the total sum of $100,191.24.

2. The claim is for a block of eight hours of occupational therapy to teach cognitive and memory strategies together with annual assistance to review the claimant’s home, equipment, pain management and independent living skills at an initial cost of $1,434.08 and an annual cost of $717.04. The insurer relies upon the opinion of Ms Caukill who supported the need for functional education and equipment advice as a one-off short course at a cost of $1,170.

3. I am not satisfied there is a need for annual occupational therapy, but I propose to allow the sum of $1,170 in respect of a one-off short course as recommended by Ms Caukill.

Podiatry

1. Lindy Williams reported Mr Evans required assistance with foot and toenail care due to pain from bending over. Having regard to the extent of the claimant’s pelvic and hip injuries I consider it reasonable to make a small allowance for podiatry at the rate of $70 per treatment four times per year for the remainder of the claimant’s lifetime. I calculate $5.38 x 855.7 less 15% for the vissisitudes of life in the sum of $3,913.11.

Case management

1. A claim is made for case management at a cost of $5,993.84 to assist Mr Evans with his rehabilitation and adjustment to disability. Even though I have accepted Mr Evans sustained a mild traumatic brain injury I am not satisfied there is a need for case management arising out of the accident. Noting it is nearly six years since the accident I think there is unlikely to be any further significant adjustment Mr Evans can made to enable him to live with his disability.

Mobility scooter

1. Ms Williams recommends the future provision of a mobility scooter. Not only is there no medical evidence to support the future need for a mobility scooter even Ms Williams concedes the claimant is likely to remain independent with local driving and transport into the future. I do not propose to make any allowance for the provision of a mobility scooter or any associated costs.

2. Ms Williams also suggests there is a need for roadside assistance and a disability parking permit. I agree with Ms Caukill that a need for roadside assistance is a corollary of car ownership and not a need created by the accident. A disability parking permit requires a medical certification which the claimant is unlikely to secure whilst he can walk up to two kilometres without aid. I do not propose to make any allowance for either.

Transportation and staff needs

1. A claim is made for a taxi/uber allowance of $1,200 per annum. Where Mr Evans is independent with local driving, I do not propose to make any allowance for the cost of a taxi or uber.

2. Ms Williams reported Mr Evans would require care assistance for longer journeys and holiday travel with an upgrade to business class airfares. Under the heading Staff Requirements, a claim was made for the cost of domestic upgrade to business class and international upgrade to business class at a cost of $7,468.32 per annum until age 55 and a cost of $16,994.32 per annum after age 55 including the cost of staff accommodation and staff meal allowance. A claim was also made for handwash and basic firefighting equipment.

3. Ms Burns suggested the need for the upgrade to business class is so Mr Evans can recline and change his position if he is required to travel for longer than two hours.

4. Ms Caukill states there is no basis to believe Mr Evans will require domestic air travel four years out of five or international travel every five years as claimed and there is no reasonable requirement for Mr Evans to be accompanied by a support worker or carer for travel.

5. Certainly, there is no evidence to support the need for a support worker or carer to accompany Mr Evans if he was to travel. There is also no suggestion of regular air travel by Mr Evans. However, Mr Evans has mentioned the discomfort he experienced in flying to Sydney, presumably for a medical assessment. Having regard to his orthopaedic injuries including the thoracic and pelvic injuries I agree that an upgrade to business class would be reasonable. In the absence of any evidence of regular air travel I propose to make an allowance of $10,000 for the cost of future travel upgrades Mr Evans is likely to incur.

6. I am at a loss to understand how the accident has created a need for basic firefighting equipment or hand wash and do not propose to make any allowance for either of these heads of damage.

Equipment needs

1. Ms Burns proposes the claimant be compensated for the cost difference between a standard dishwasher and a drawer dishwasher with replacement every 10 years. Ms Caukill suggests a one-off purchase of a single drawer dishwasher at a cost of $1,299 is reasonable. She suggests the ongoing replacement would be considered a household expense. I propose to allow the sum of $1,299 for the cost of a dishwasher.

2. A claim is also made for the cost of a recliner lounge and replacement every 10 years at a cost of $199.50 per year. Ms Caukill supports the purchase of a powered/electric recliner as a one off to allow change of posture for comfort. Ms Caukill otherwise submits the costs of an electric recliner does not necessarily exceed the cost of non-reclining furniture. I do not accept that proposition and I propose to allow the sum of $2,000 for the additional capital and recurring costs of purchasing an electric recliner.

3. Both Ms Burns and Ms Caukill concluded it was reasonable for various items of equipment to be provided to promote the claimant’s independence and safety. The following table outlines the recommendations from each and my assessment of what is reasonable:

Item	Ms Williams/Ms Burns	Ms Caukill	Allowed/not allowed
Stick vacuum	Cost $139.80 per year	Cost $289 with replacement every five years	Allowed at cost of $289 with replacement every five years.
Household trolley	Cost $50 per year	Not required as Mr Evans has functional use of his hands and is independently mobile	Not allowed
Laundry trolley	Cost $10 per year	Supported	Allowed
Mrs Pegs clothesline	Cost $24.90 per year	Supported	Allowed
Shower chair	Cost $11.90 per year	Supported	Allowed
Long handled shower sponge	Cost $25 per year	Supported	Allowed
Long handled shoehorn	Cost $3.20 per year	Supported	Allowed
Easy Reacher	Cost $65 per year	Supported	Allowed
Car seat cushion	Cost $41.67 per year	Supported	Allowed
Back rest	Cost $22.67 per year	Supported	Allowed

1. Noting the claimant’s life expectancy of 33 years I allow a buffer of $20,000 for future equipment needs.

2. I assess damages for future treatment expenses in the total sum of $209,342.79

Past Economic loss

1. The main issues in dispute are the following:

   (a)      whether the claimant has any residual earning capacity; and

   (b)      the claimant’s likely earnings had the accident not occurred.

Whether the claimant has any residual earning capacity

1. It is agreed the claimant remains incapacitated for return to work as a dairy farmer or a heavy vehicle driver.

2. The insurer concedes the claimant was totally incapacitated for work until April 2019 but thereafter asserts he had a modest capacity for part-time employment undertaking simple administrative or clerical work, light repetitive work, or light driving work as a courier or delivery driver. The insurer values that residual capacity at $250 per week.

3. Mr Evans provided a statement dated 6 February 2022. He said until his accident he had always been a “worker” and he has attempted to secure limited casual work for a few hours a week.

4. He stated he attended Eurobodalla Council for an induction day in May 2019 with the hope of doing volunteer driving for the council. Unfortunately, the work was not simply transporting people locally but driving to Canberra and Bega which he was unable to do.

5. In November 2021 Mr Evans undertook two trial shifts at a service station. One shift was for six hours and the other for two hours. Whilst he was working as the cashier, he was also asked to fill gas bottles, get ice for customers and pack away food and drinks delivered to the service station. Not only did Mr Evans find the lifting too heavy he also had difficulty handling money where he has no movement in his left wrist requiring him to try and use his right hand which he found awkward. He also found he was very sore following the trial shifts.

6. He stated a friend offered him casual work at the Woolworths store in Moruya. After completing an induction, he was given work in the bakery which required him to put biscuits into plastic packages. Initially, he was also asked to rearrange stock on shelves, mainly in the biscuit and cereal sections. Mr Evans described working on five or six occasions at night. He stated he was asked to do different types of work, for example, stacking the freezers and soft drinks. Mr Evans said he was able to cope with the three hour shifts in the bakery section but was not able to lift heavy items or to work, as asked, a minimum of 15 hours per week. He also described difficulty with his concentration and states he found the work mentally draining.

7. Mr Evans reiterated when questioned at the assessment conference that he was not able to work 15 hours per week and believed the limit of his capacity would be two three hour shifts per week of light, sedentary work.

8. Medical opinion supports the view taken by Mr Evans and, indeed, several specialists were of the opinion he was totally incapacitated for employment.

9. Whilst Professor Smith suggested right hip replacement might give the claimant significant functional benefit and may assist him in being employable in some capacity he also stated:

   “In the long term however, he will be unsuitable for manual-type labouring jobs because of his pelvic and hip trauma. He has significant limitations in regard to his bilateral wrist trauma which may also well impact on his employability also in the long term.”

10. Dr Allnott was of the view the claimant was totally unfit for any occupation taking into consideration the combination of physical and mental conditions.

11. Professor Brew was of the view the claimant is permanently unable to re-enter the workforce in any capacity, given his wide-ranging pain and also the mild cognitive impairment arising from the mild traumatic brain injury.

12. Dr Walker concluded the claimant’s orthopaedic injuries prevent him from performing any work that he is suitably trained for. He was not prepared to say that the claimant’s current functioning is likely to improve in the future.

13. Dr Cummine agreed the claimant was unlikely to return to running his own farm but suggested he might be capable of part time office work, that is clerical or sedentary in nature or perhaps involving driving vehicles for limited periods.

14. I consider Dr Cummine was overly optimistic. Mr Evans underwent a Job Assessment for Newstart on 31 May 2109 when it was reported he had no computer skills and limited business administrative skills.

15. Furthermore, it has been documented that Mr Evans finds it difficult to sit or stand for long periods of time. Dr Virgona reported:

    “When asked about his physical limitations, he stated that he is unable to drive a truck again. He stated that he can't sit in one spot, can't write well and is trying to learn how to do it again”.

16. In Mead v Kerney [2012] NSWCA 215 the parties accepted the principle set out in Nominal Defendant v Livaja [2011] NSWCA 121 that, notwithstanding a theoretical ability to perform certain jobs, there must be a practical assessment of the likelihood of actually obtaining such work.

17. In this case, notwithstanding the prevailing medical opinion, Mr Evans has done his best to secure suitable part time work. However, I accept the evidence of Mr Evans that suitable part time work would be limited to two three hour shifts per week on non-consecutive days. I am also satisfied that there is no likelihood of the claimant actually securing such work. Accordingly, I find that Mr Evans has no real residual earning capacity. I propose to assess damages on the basis of total incapacity for work.

The claimant’s likely earnings had the accident not occurred

1. At the time of the accident in April 2016 the claimant was a self-employed dairy farmer and truck driver. He derived income from his company, D & S Evans Pty Ltd, and from the Evans Family Trust.

2. In his Personal Injury Claim Form, the claimant asserted that his usual weekly income at the time of the accident was $1,000 net per week. This is reasonably consistent with his pre-accident earnings as disclosed in his tax returns:

   •    Financial year 2013 - $1,051 net per week

   •    Financial year 2014 - $683 net per week

   •    Financial year 2015 - $1,100 net per week

   •    Financial year 2016 - $792 net per week (10 months only)

3. The claimant asserted that he intended to cease farm work and in early 2017 start driving trucks interstate carrying livestock. In submissions the claimant stated he intended to drive semi-trailers, heavy combination vehicles working five days a week. He planned to upgrade his licence.

4. The claim for loss of earnings was based on the earnings of a Grade 8 transport worker under the Road Transport (Long Distance Operations) Award 2010 from 1 July 2017 at $838.90 per week. In addition, it was submitted he would have been entitled to earn 43.62 cents per kilometre. On the basis the claimant drove 4000 kilometres per week he would earn $1744.80 per week plus a livestock allowance of 2.42% of the standard rate per week which is $20.30 per week. The claimant argued this would have accorded him a gross income of $2,604 per week or $1927.69 net per week.

5. On this basis a claim for past economic loss was calculated based on total incapacity for work at the rate of $1927.69 net per week.

6. At the outset of the assessment conference Mr Rewell pointed out the claimant had misconstrued the Award. The insurer uploaded to the portal a copy of the relevant pages of the Award. It is clear from identical clauses in both the 2010 and 2020 versions of the Award that am employee is only entitled to be paid at either the cents per kilometre method or the hourly rate method and it is the employer who nominates the method of payment.

7. The insurer submitted that applying either the kilometre rate or the hourly rate and working 38 hours per week as a Grade 9 transport worker the claimant would have earnt approximately $1,125 net per week.

8. Mr Evans was questioned at length about his intentions and his likely earnings as an interstate truck driver. He agreed it would have been necessary to upgrade his licence but did not foresee any difficulty in doing so. He also believed it would be easy to find employment as a truck driver. He stated he had a number of friends who drive, and he believed he would have had no difficulty earning in the vicinity of $2,000 per week. The claimant was adamant he would have been able to drive 4000 to 5000 kilometres per week, he would not have been limited to a 38-hour week and, indeed, stated he had never worked only 38 hours per week.

9. Mr Evans stated if he was only able to earn $1,500 per week as a truck driver he would have gone back to working as a farm manger where he could earn about $80,000 per annum and be provided with a house, a car and free electricity.

10. Mr Evans stated he intended buy out his wife’s share of the farm, to rent out the house for an estimated $400 per week and to agist 40 to 60 head of cattle at $100 per head.

11. I have not been provided with any evidence to establish that work as a truck driver earning in the vicinity of $2000 per week was available in 2016 or at any time since. The claimant has not worked as a truck driver for over 10 years and his anecdotal evidence is not sufficient to ground an award of damages on that basis.

12. Whilst the claimant’s evidence was that he was the director of the company which paid his rental expenses and electricity in addition to paying him a wage, Mr Rewell correctly pointed out the company had not declared the payment of fringe benefits and the claimant’s earnings should be assessed by reference to his taxation returns.

13. However, in assessing past economic loss I note that the claimant’s earnings in the 10-month period prior to the accident would have been impacted by Mr Evan’s absences from work by reason of his psychiatric condition and subsequent inpatient admissions.

14. Therefore, regardless of whether the claimant’s employment was as a truck driver or a dairy farmer I propose to adopt the approach proposed by the insurer. Mr Rewell suggested past economic loss be calculated for the entire period without any deduction for any residual earning capacity at a rate of $1,125 net per week based on the hourly rate payable under the award for a 38-hour week. Mr Rewell nominated a figure based on 301 weeks being the period since the accident. Noting an additional two weeks have now passed I calculate past wage loss for 303 weeks in the total sum of $340,875. I assess damages for past wage loss accordingly.

15. Assuming paid employment as a truck driver or as dairy farmer I also assess damages for past loss of superannuation benefits calculated at 11.25% of the past net wage loss in the sum of $38,348.43.

Future economic loss

1. In calculating future economic loss, I must have regard to the provisions of section 126 of the MAC Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances.

2. There is no doubt the accident has caused a change in the claimant’s most likely future circumstances. I find he would have continued to work as a truck driver or employed dairy farmer until retirement.

3. I have already concluded Mr Evans has no residual employment capacity on the open labour market and, is for all practical purposes, totally unfit for a return to work.

4. A claim is made on the basis the claimant would have worked until age 70. Until the tragic circumstances surrounding the death of his son and the breakdown of his marriage Mr Evans maintained his own farm and the dairy farm over which he held a lease. Those events placed him in a position where he found it necessary to buy out his wife’s share of the family farm. Prior to the accident the claimant was physically well, and the evidence suggests he was recovering from the psychological illness he experienced following his son’s suicide. Since leaving school Mr Evans had always worked and having regard to his changed circumstances in the lead up to the accident, I accept he would have continued to work until age 70 years.

5. Noting Mr Evans is now 51 years of age uninjured he would have worked an additional 19 years. The multiplier on the 5% tables for 19 years is 646.2.

6. I propose to assess future economic loss at $1,125 net per week. I calculate $1,125 x 646.2 less 15% discount for the vissisitudes of life in the sum of $617,928.75.

7. In accordance with the approach taken in Najdovski v Crnojlovic [2008] NSWCA 175 I assess damages for future loss of superannuation benefits calculated at 14.18% of the net future wage loss in the sum of $87,622.29.

ASSESSMENT OF DAMAGES SUMMARY

1. I assess the claim as follows on the findings set out above:
   
   

   Non-Economic loss   $400,000.00

   Past Loss of earnings (incl superannuation)  $379,223.43

   Future Loss of earnings (incl superannuation)  $705,551.04

   Past treatment (incl. s 83 payments)  $345,742.92

   Future treatment  $209,342.79

   Past gratuitous assistance  $22,932.00

   Future commercial care  $181,836.25

   TOTAL DAMAGES ASSESSED  $2,244,628.43

1. The claimant’s economic losses are to be reduced by and the insurer is to have credit for the following payments in accordance with section 130:       

   Section 83 payments  $342,964.07

   Section 84A payments  $90,000.00

COSTS AND DISBURSEMENTS

1. A schedule of costs and disbursements dated 25 January 2022 was filed by the claimant.

2. The only dispute was the sum of $14,953.77 in respect of the report from the Lighthouse Health Group. The claimant submits the fee covers a report by two experts, the report was very detailed, it provides detailed costs and was relevant to the assessment of damages for non-economic loss, and past and future assistance.

3. The insurer submits no allowance should be made on the basis the report was of no probative value and the cost of the report extravagant. I agree the report fee is exorbitant. However, whilst there was a lack of support for a number of the recommendations made by Ms Burns, I agree both reports were relevant in the assessment of the claim for past and future assistance. I propose to allow $6,000 plus GST for the report.

4. I allow $1,288 plus $1,236 for four additional hours for representation at the assessment conference.

5. I allow six conferences as claimed.

6. I otherwise assess costs and disbursements in accordance with s 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2020 in accordance with the attached sheet.

Susan McTegg

Member (Motor Accidents Division)

Personal Injury Commission