Gabriel v Insurance Commission of Western Australia
[2024] NSWPIC 299
•27 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | ||
| CITATION: | Gabriel v Insurance Commission of Western Australia [2024] NSWPIC 299 | |
| CLAIMANT: | Michael Gabriel | |
| INSURER: | Insurance Commission of Western Australia | |
| MEMBER: | Terence O'Riain | |
| DATE OF DECISION: | 27 May 2024 | |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for economic loss damages; on 20 March 2020 claimant was motorcyclist who collided with vehicle entering road; liability for damages admitted; sustained injuries to his neck, both forearms and shoulders; claimant was suffering mental illness, which reduced his pre-earning capacity; no expert evidence about accidents mental impact; claimant had only worked in landscape and earthmoving as machine operator before accident; forearm fractures treated with internal fixation in both forearms; claimant attempted to return to work nine weeks after accident; insurer denies loss of earnings after nine weeks; medical certificate did not indicate restrictions despite recent surgery; claimant ceased work less than a week after return due to pain and loss of work capacity; return to work some months after; did not attend on GP; insurer declined treatment during Covid-19 pandemic; no counselling; no rehabilitation; employer provided opportunity for suitable duties, which increased claimant’s earning capacity due to reduced mental stress; claimant able to manage mental and physical impairment with suitable duties; claimant’s mental condition improving; change in circumstances for earnings; claimant now working more hours than before accident in suitable duties; continuing suitable duties dependent on employer’s generosity; claimant intended to revive own business; had bought new machinery; attempted to run own business before accident but unable to continue due to existing mental stress and lack of payments; insurer questioned credit; inconsistencies between statements and earnings documentation; proper basis for questioning; insurer prefers Medical Assessor’s opinion in permanent impairment assessment against initially jointly instructed orthopaedic surgeon who examined claimant twice specifically examining injuries effect on earning capacity as a labourer and plant operator; medical evidence supports accident caused permanent reduced efficiency using tools, lifting, carrying and gripping; unable to perform gym work, which maintained fitness for labouring; unable to remove hardware in forearms; claim for future economic loss based on earnings in suitable duties, early retirement, prejudice on open labour market; Held – claimant inconsistent witness but psychological condition supports alternative explanation to insurer’s dishonesty claim; medical evidence supports past and ongoing disability with early retirement; past economic loss claimed mostly accepted; accident caused change in most likely future circumstances; claimant able to maintain work with suitable duties; claimant will remain in landscape design as machine operator and assistant with reduced efficiency; past economic loss closed period $26,697.83; future economic loss assessed as buffer for forced early retirement and prejudice on open labour market at $250,000; $20,000 for loss of opportunity to run own business; credit for statutory benefits; total damages assessed in sum of $295,547.15; costs assessed in claimant’s favour. | |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.36(1) of the Motor Accident Injuries Act2017 Damages assessment made in accordance with s 7.36 of the Act
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INTRODUCTION
On 8 May 2024, I assessed Mr Michael Gabriel’s (the claimant) damages arising from the accident dated 20 March 2020 at the Personal Injury Commission’s (Commission) hearing rooms in Sydney.
Frank Boitano with Sachini Ellawela instructed Daniel Hanna of counsel for Mr Gabriel.
The insurer retained solicitor John Cooper of Moray & Agnew with his associate Yu Ting Wang. They instructed John Guihot of counsel.
The insurer insured the owner and/or driver of the motor vehicle at fault in this claim for liability to pay to the claimant any damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Jurisdiction
The rules of evidence do not apply to this assessment. I may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
Background
On 20 March 2020 at approximately 5:00pm, Mr Gabriel was riding his motorcycle in Greenacre. The insured driver’s Hi-Lux emerged from an intersecting street and suddenly turned right in front of him.
Mr Gabriel had no time to avoid the collision and hit the driver's side. That impact threw
Mr Gabriel into the air and he landed a few metres away.He immediately felt pain all over his body. An ambulance took him to Liverpool Hospital.
That hospital operated on both arms to insert fixations of bilateral fractures in the wrists and forearms. The hospital discharged him after four days with pain medication. I have seen photos and reports that confirm he was left with considerable, sensitive, and noticeable scarring on both arms.
The insurer admitted liability for common law damages in a notice dated 8 July 2022.
The accident caused the following injuries:
(a) left mid shaft radius forearm fracture;
(b) right distal radius forearm fracture with dislocation;
(c) bilateral shoulder injuries;
(d) neck injury resulting in radicular discomfort affecting the right upper extremity radiating from the cervical spine, and
(e) unsightly scarring.
Mr Gabriel alleges the accident has caused the following continuing disabilities:
(a) pain, and restricted range of motion in both forearms and shoulders;
(b) pain, discomfort, and restricted neck movement;
(c) weak upper extremities in all parts resulting in reduced capacity for manual activities including lifting, pushing, pulling, and driving, grip strength;
(d) he feels he has reduced ability to perform tasks quickly and efficiently particularly those involving overhead motions;
(e) he can no longer ride motorcycles, and
(f) he has suffered mental strain, including loss of confidence with increased irritability and disturbed sleep.
He developed bilateral shoulder pain while recovering from his forearm fractures.
His neck pain would shoot down his right shoulder.
His general practitioner (GP) noted these complaints.
The insurer disputes the claimant has developed bilateral disabilities in his shoulders, because Medical Assessor Kenna certified on 13 March 2024 that he did not note any restriction and there were few complaints to his GP.
Medical Assessor Kenna noted at paragraph 18 in his certificate that Mr Gabriel had regained full range of movement in both shoulders, elbows and almost the wrists.
The insurer wants me to accept Medical Assessor Kenna's opinion rather than Dr Nair’s reports dated 5 April 2022 and 28 March 2024.
The parties jointly instructed Dr Nair’s first report to measure permanent impairment and the accident’s impact on Mr Gabriel’s work capacity. Dr Nair calculated 8% permanent impairment but omitted the obvious scarring and miscalculated the other aspects of permanent impairment. The insurer declined to continue the joint instruction arrangement when the claimant proposed returning to Dr Nair to address the omission and error.
Dr Nair assessed 12% permanent impairment in his supplementary report.
The Commission assessed the scarring at 2% and the wrist impairment at 2%.
The claimant has no entitlement to non-economic loss.
The parties agree that the claimant was unfit for work for the period 20 March 2020 to
18 May 2020.
The parties dispute the amount of the claimant’s net weekly income at the time of the accident.
The parties dispute the claimant’s working capacity after 18 May 2020.
The parties dispute the amount that should be allowed for past-economic loss.
The parties dispute:
(a) whether there should be any entitlement to future economic loss, and
(b) if there is to be an allowance, the amount of future economic loss.
There is a dispute about the claimant's past economic loss, because although his statement says he worked between 30 and 50 hours per week and was earning approximately $1,050 net weekly, his tax records show he was earning in a range of approximately $475 to $514.12 weekly.
The certificates of fitness[1] certifies him as unfit for work from the date of accident until
18 May 2020. However, he says he could not work between 25 May 2020 and2 August 2020.[1] A16.
The insurer disputes that because it is not certified and because COVID-19 would have stopped him working anyway.
His GP certified him fit for work from 20 May 2020 without restrictions. The insurer submits that apart from the initial nine weeks after the accident there should be no further allowance for past economic loss.
The insurer calculated superannuation on his past economic loss for the nine weeks at $508.97. He received one payment of statutory benefits.
There is no claim for s 4.5(1)(d) of the MAI Act to reimburse income tax paid on statutory benefits.
The key points on future economic loss are:
(a) most likely circumstances;
(b) his potential to relaunch his business;
(c) premature retirement;
(d) prejudice on open labour market, and
(e) time off work.
The insurer disputes the claim that any of these situations were likely to lead to financial loss:
(a) the accident has stopped him being able to start his own business;
(b) that he could have earned $2,000 net per week in his own business;
(c) that the accident caused injuries resulting in the claimant losing $1,000 net per week, and
(d) that he will or has lost income because of the accident.
The insurer submits the claimant’s most likely future circumstances but for the accident were:
(a) he would have continued to work casually for Fort Moy Excavations Pty Ltd, and from time to time for other organisations;
(b) the number of hours he would have worked would vary from time to time;
(c) the amount of work he would have undertaken would be consistent with the number of hours he performed before the accident, and
(d) the claimant’s most likely future circumstances but for the accident are precisely those which have occurred.
I interpret the last item to mean that the insurer says the accident has made no difference to his future.
The insurer pointed out the claimant has recorded more hours since the accident than he was working in the two years before the accident.
Evidence
Michael Gabriel’s statements
This summary of the claimant’s statement dated 23 March 2023[2] includes undisputed points that were not included in the original statement but obtained during questioning.
[2] A9 joint bundle.
He resides in a van on a property owned by his employer.
He finished his education in 1992 with his High School Certificate
His entire work experience consists of manual labour with extensive experience in landscaping, earthmoving, and excavation.
From 1997, he began landscaping at various companies.
In 1998, he started a landscaping business called Earth Art Landscaping.
He undertook all landscaping and heavy machinery work and the business thrived. He closed the business in 2012 because of his marriage breakdown. He intended to revive the business after a small break.
However, he did not work again because of personal issues until sometime in 2015, when he did security work.
From 17 December 2018 Hays Recruitment hired him out as an excavator for a month. A note in the Hays’ record showed a final entry about Mr Gabriel breaking a pipe. From September 2019 until the end of November he worked as a full-time excavator at a Queensland council.
From November 2015 until the accident, he also worked for Fortmoy Excavations at Box Hill, New South Wales.
His duties included:
(a) labouring;
(b) lifting;
(c) workshop duties;
(d) metalwork;
(e) operating power tools;
(f) cleaning equipment;
(g) securing and operating heavy machinery and plant, particularly in excavations, and
(h) delivering equipment to sites.
He says before the accident he could work 30 to 50 hours per week at a rate of $30-$50 per hour. Although his hours and earnings could vary, he asserted he would earn $1,050 net per week before the accident.
After the accident because of his injuries, he could not work for at least nine weeks. He tried going back to work in May 2020 but only lasted a week because he could not cope with the pain. Both arms had been splinted for about six weeks after the accident, although later in the statement he said he had casts on both arms for nine weeks after the accident.
His return to work since early August 2020 was staggered, but he could not do the duties he could do before the accident. He realised he had returned to work too soon. He stopped working at all until August 2020.
In August 2020 he started working 20 hours a week and increased his hours until about six months later when he was doing 40 hours. Although questioning and what doctors recorded showed it was still varied.
He cannot do the heavy tasks he could do before or use a shovel or hammer. He has lost grip strength and cannot lift anything heavy because of his injuries. He loses his grip regularly.
He is worried that if he lost his current job no one else would hire him because he needs to work in suitable duties.
He says he was gearing up to return to being self-employed. He had bought a micro excavator, he said in late 2018 and had never used it.
He says the accident has robbed him of the ability to pursue any potential to run his own business and being able to earn more income. He estimates he could earn double what he is earning as an employee.
Relevant to his work capacity he says any overhead movement is painful. He struggles to lift objects heavier than 5kg. Attempting to do so causes pain and the need to rest. He has reduced driving endurance because it is difficult to grip the wheel.
He can no longer lift weights at the gym, which is relevant to staying fit for manual labour.
He manages his pain with ibuprofen and Panadol. He is fearful for his future.
The claimant’s statement dated 11 March 2024[3] refers to his aspirations to operate his own business again. He refers to the mini excavator and his intent to expand with loaders and dumpers. He was confident that he would have been able to obtain ongoing civil and rail work.
[3] A11 joint bundle.
The claimant’s final statement dated 20 March 2024[4] adopts the earlier statements without qualification.
[4] A12 joint bundle.
It refers to how he has been forced to manage his condition alone because the insurer declined to pay for treatment that he considers would have helped him, such as massage and similar therapy, so he could maintain himself at work.
He says the disabilities that he has now are as probably as good as they are likely to get. The problems described above which restrict him at work are continuing. If he pushes himself too hard at work, his forearms cramp and his neck and shoulders become stiff and painful. He will have pain the next day. He takes regular breaks to manage his pain, which affects his productivity. He disagrees with Medical Assessor Kenna’s opinion that his condition in the context of his disabilities, has largely resolved.
He relies on people to help him with his work when he could manage alone before the accident.
He says the accident means he cannot return to self-employment because he cannot work alone anymore, where he would earn up to $40 per hour than his current earnings or at least $1,000 net per week more.
Shane Donoghue is Fortmoy Excavations’ managing director who authored a letter dated 11 March 2024.[5] The letter confirms Mr Gabriel’s duties before the accident when he had no physical restrictions. He describes work requiring a high level of physical fitness.
[5] A13 joint bundle.
He confirms Mr Gabriel’s assertions about his pay and time at work before and his loss after the accident. Mr Gabriel was motivated to improve. Mr Donoghue observes that since the accident Mr Gabriel is impaired and less able to achieve higher skills. He performs light duties now and requires more breaks because of his arm injuries.
Claimant’s oral evidence
Mr Gabriel’s counsel asked him additional questions to supplement his statements.
I noted the insurer’s counsel’s objection, but I allowed the questioning because if there was anything new that the insurer could not meet there was the option of adjourning. The insurer also had leave to question the claimant extensively.
Mr Gabriel confirmed that he was still employed with Fortmoy on suitable duties. He is restricted to operating an excavator, which h manage for a full day but relies on labourers assisting him with the collateral tasks.
Excavation work is plentiful on civil and rail projects, but sometimes he needs to decline or take time off jobs when his accident -related disabilities become hard to bear. Occasionally he also needs time away from work to manage his emotional problems from before the accident.
He can no longer undertake long jobs like interstate plant deliveries and pickups. He was licensed and competent to operate trucks and all grades of excavators.
In 2015 he received psychological treatment, which led him to reducing work. He has had relief from his emotional problems in the last 12 months because he has reconciled with his children.
Despite having lost time away from work before and after the accident he has not sought Centrelink benefits and was only paid approximately $1,000 statutory benefits under the motor accident scheme.
He has not received any counselling since the accident, and he pushes himself to return to work.
His employer has given him much lighter duties, especially when the accident-related and personal issues have been difficult to manage. Examples given were being a “spotter”. This consisted of being sent with a gang to a project where he would only have to be actively working for a small part of the day.
He said he can manage this work, and sometimes he is able to rest at the job when not required.
He said; “I do not like bending the truth”.
The only medication he takes now is Panadol, but he took ibuprofen in the past. The hardware inserted into his forearms is permanent. His specialist advised him that the risk of operating to remove the metal could be greater than the benefit he would get from removing it.
His right wrist is the one that gives him the most problems now. He is right-handed.
Insurer’s questioning
Mr Guihot questioned Mr Gabriel extensively on his statement of 13 March 2023 and what he told doctors as follows:
(a) the mini excavator invoice showed that it was bought in February 2018 and not late 2018;
(b) that he stated that he had not used the mini excavator since he bought it when that was not true because tax returns for 2018 – 2019 financial year show that he netted $13,830 that year being self-employed. Mr Gabriel conceded that was correct saying he had tried returning to self-employment, but he struggled with getting paid for the work;
(c) that he left out of his statement that Hays Recruiting did not employ him again after November 2018 because the records show he damaged an underground pipe. Mr Gabriel said that Hays were not paying him properly and he did not remember breaking a pipe;
(d) that he asserted that before the accident he worked 30 to 50 hours per week and was earning on average $1,050 net each week. Mr Guihot pointed out that the insurer’s calculations showed he was working on average 10 hours per week before the accident and receiving appropriate pay for those hours, which was as little as $514 net per week when he was working regularly. There was only one occasion that he worked 40 hours in his employer’s records before the accident. Since the accident he has regularly worked a full week, so he has had no loss.
Mr Guihot put it to Mr Gabriel that he was attempting to mislead me about his earnings before the accident. Mr Gabriel conceded Mr Guihot was right about him getting the earnings wrong, and that his mental health issues had got in the way, even though he was physically fit before the accident. He meant to express what he could have earned if he was fully fit as a casual employee. He explained he now worked full weeks because his employer consistently found him suitable duties which he could manage physically and mentally;(e) that it was unreasonable for him to still be affected by his marriage breakup shortly before the accident because more than eight years had passed since that happened. Mr Gabriel spoke of trying to put his best foot forward and not rely on government handouts. He looked confused and distressed when he answered these questions;
(f) that he did not tell his solicitors about his mental health history and how he was regularly declining job offers before the accident for that reason. Mr Gabriel said that he was trying to self-manage his mental health and did not want to be a burden;
(g) that his GP Dr Tringali certified in May 2020 that he was fit to return to work without restrictions. This meant I should not accept that he was unfit for work between late May and when he returned to work in August 2020;
(h) that he told Dr Nair he was a stonemason and landscaper before and since the accident in both medical reports and that he told him that he worked 20 hours per week before the accident in the first report and 40 hours before the accident in the second report. Against this were objective signs Dr Nair measured such as reduced grip strength which affected his ability to perform manual tasks and operate tools and machinery, plus how Dr Nair assessed how the accident caused injuries and disabilities that would impact any worker reliant on physical fitness to perform the work efficiently. Mr Gabriel readily accepted that his occupation was wrongly recorded because he had been a full-time excavator and labourer, not a stonemason. Both of these jobs are physically demanding.
Mr Gabriel again agreed that his work hours before the accident were contingent on him being mentally well and 40 hours was aspirational, and(i) that his latest statements had adopted the earlier statement in full and did not correct any of the obvious mistakes, which he knew was to go before the Commission.
Medical evidence
Medical Assessor Clive Kenna's certificate dated 9 November 2023[6]
[6] A22.
Medical Assessor Kenna examined Mr Gabriel at the end of October 2023 to measure his permanent impairment from his accident -related injuries, apart from scarring.
Mr Gabriel told Medical Assessor Kenna that he still had mild to moderate pain in the right side of his neck with discomfort in both shoulders and forearms, although there was no referred pain. He indicated it is difficult to grip and he experiences cramps in both arms.
Mr Gabriel experiences dexterity problems. The Medical Assessor referred to stiffness in both upper limbs being largely resolved.
The Medical Assessor noted Mr Gabriel had regained full movement in the shoulders, elbows, and wrists. Medical Assessor Kenna referred to Dr Nair's earlier report, which recorded substantial mobility issues, but in the Medical Assessor's opinion these had resolved.
Mr Gabriel told Medical Assessor Kenna he was only working 20 hours per week at the time of the examination because his injuries were still impacting his work capacity. He told the Medical Assessor he is incapable of performing the full scope of his previous activities.
Dr Anil Nair's reports
Report dated 5 April 2022[7]
[7] A25 joint bundle.
Dr Nair recorded Mr Gabriel was stiff in both elbows with pain adjacent to the surgical scars. The pain at that time radiated into the right trapezius region from the cervical spine and into the right fingers. Cervical spine movement provoked pain in his upper extremities. There was also paraesthesia in his right upper extremity.
Mr Gabriel confirmed loss of dexterity, which affects his activities of daily living requiring lifting and minute upper extremity movement.
His grip strength was 10kg in the right and 15kg in the left.
Mr Gabriel has functional impediments and disabilities. He has residual pain and stiffness in the right greater than the left upper extremity. He struggles with rudimentary activities of daily living including self-care tasks such as showering. He struggles to lift objects. He previously used to use tools for work. He states he is not able to use tools due to pain and stiffness. He has significant loss of his grip strength.
The upper extremity conditions are permanent and highly unlikely to improve beyond current levels.
Both parties instructed Dr Nair to assess how the injuries impacted his earning capacity.
Mr Gabriel was working approximately 20 hours per week when Dr Nair examined him, the doctor found this was consistent with the injuries and disabilities.
The doctor confirmed the disabilities meant Mr Gabriel was unable to perform the full scope of tasks he used to perform including using tools in an effective manner.
Dr Nair found the limitations ongoing and likely to be permanent. Mr Gabriel has lost earning capacity as he has lost both work hours and the ability to perform the heavier types of tasks.
It is likely that future capacity is restricted.
He is only able to operate machinery, and this will extend to the future.
Report dated 28 March 2024[8]
[8] A27 joint bundle.
He still had pain and stiffness in both elbows. There is pain adjacent to the surgical scar. There is pain in the subaxial cervical spine radiating into the right trapezius and into the ulnar digits of the right hand. Movement of the cervical spine provokes upper extremity pain. There is paraesthesia in the cervical spine.
He still has difficulty with dexterity and self-care. He still relies on his left hand.
His grip strength was now 7kg on the right and the left was 13kg.
Dr Nair found the symptoms and function remained much the same.
There has been a significant impact on his ambition to be self-employed because he struggles with rudimentary activities of daily living. "It is a credit to his motivation that he continues to work."
He is working for 20 to 40 hours a week, which is appropriate. He struggles to perform hands-on work with tools. At this stage there is no loss of earning capacity.
His future earning capacity is limited due to the lack of efficiency. It is highly likely that he would have to retire early. The doctor could not predict when.
He is unable to attend the gymnasium because of the accident. He cannot maintain a high degree of physical fitness which he used to place a premium on before the accident.
Documents considered
I have considered the documents provided in the joint bundle.
Reasons
Credit
The insurer submits the claimant has made self-serving and subjective claims about his earning capacity and work practices before the accident and his future work intentions and that I should not accept his evidence unless it is corroborated with documents.
Reliability of the claimant’s evidence
Mr Gabriel suffered frank injuries, which are documented. He demonstrated that he was motivated to return to work, but the disabilities arising from his injuries will continue indefinitely. He tended to understate his disabilities.
It was apparent during the assessment that Mr Gabriel was a very anxious man. From his statement and oral evidence, it was apparent that anxiety and other mental illnesses had been present for many years. He had sought treatment sporadically. He described being diagnosed with post-traumatic stress disorder in 2007, family related trauma and undergoing a counselling session in 2015. He spoke of self-medicating with meditation, diet, and exercise, but it was hard to tell whether he was speaking of the period before or after the accident.
He tried to express himself forthrightly, but it gave the impression of vulnerability because he would agree with the propositions the insurer’s counsel was making, that he was not telling the truth, when in fact another person, such as his legal advisor or his GP had not paid attention to an assertion that could have been readily corrected. For example; checking his earlier statement against his available tax records before seeking instructions for a further statement or marking his certificate of fitness as fully fit when he was still recovering from surgery and had objective documented signs that the accident–related injuries would permanently affect his ability to do his customary hard manual labour such as reduced grip strength and inability to lift and carry heavy objects.
About the statement saying he never operated his micro digger since he bought it; it was plainly wrong to say that. However, the true picture that he tried before the accident but did not continue because he struggled with his mental health and getting clients to pay, did not change the trajectory after the accident. It also shows his plans were more concrete than just a wish, because he had tried.
The insurer referred to the certificate of fitness dated May 2020, which consisted of a form where the doctor had merely ticked a box that the claimant could return to his previous work. There were no boxes ticked for returning with restrictions or any notes about duties he should avoid.
I note the claimant gave evidence that when he returned to work after the accident, he was unable to do the harder labouring work he was used to, and only lasted a week, before he had to take more time off to recover. He was still recovering from open surgery and had internal fixations in his forearms. They are permanent.
The claimant alleged that he could not work during the period 25 May 2020 until
2 August 2020 because of his injuries.The insurer submits the claimant did not provide certificates of fitness for this period, which suggests that he was fit for work.
The claimant observes in his statement dated 20 March 2024 at paragraph 7 that the accident occurred around the period of lockdown due to the COVID-19 pandemic. The insurer wants me to consider the impact the lockdown had upon those members of the community who were unable to ‘work from home’ due to the nature of their occupations.
The insurer submits I would not accept that the claimant being absent from work until
2 August 2020 was due to any accident-related injuries.The certificate of fitness alone does not determine Mr Gabriel’s state when he returned to work in May 2020. There is ample authority that a tribunal must not ignore commonsense conclusions, such as it being highly unlikely Mr Gabriel would be fit to work without restrictions in heavy labour soon after breaking his forearms and undergoing bilateral fixation in those limbs, especially if medical science would accept that he would be still in recovery.[9]
[9] Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 Rich ACJ at 563–564; Bugat v Fox [2014] NSWSC 888.
Medical Assessor Kenna and Dr Nair both found Mr Gabriel had ongoing restriction of movement more than two years after the accident, although their range of motion measurements and opinions on his recovery differed. Mr Gabriel’s condition would have been more acute in the first year after the accident.
There was no expert psychological evidence that teased out his state of mental health before the accident from what had been his long-term mental disabilities from the accident, which had the potential to inflict primary trauma because of the frightening circumstances, and secondary conditions arising from pain and disability.
The Victorian case of Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 (Stevens)[10], highlights that if a party asks a tribunal to make findings on credit, then a tribunal may–where the claimant’s mental injury or other relevant factors are part of the facts– consider whether these could impact on how that claimant gives evidence. Accordingly, it is reasonable in this case to hypothesise that a lack of reliability or inconsistency could have been the product of Mr Gabriel’s psychological conditions rather than an attempt to mislead.
[10] See also Richelmann v McCabe [2024] NSWCA 37 [134]-[141]
It is plausible to consider that Mr Gabriel’s psychological condition affected how he interacted with his doctor and his instructions to his solicitor. There is no alternative explanation that he was actually fit to do the type of work he had been capable of before the accident a few weeks after his casts were removed. The documentary evidence about the pattern of the claimant’s earnings before the accident also easily correct Mr Gabriel’s inconsistencies in his statement. It is not a neat way to reconcile the differences, but his psychological condition plausibly explains inconsistency.
The evidence about what he was earning before the accident were corrected by the insurer in the submissions and did not mislead me. It appeared obvious reading the joint bundle before the conference. The impression was that those figures were aspirational and could have been expressed as comparable earnings for a physically and mentally fit plant operator and manual labourer. His pre-accident physical health was not holding him back, but his largely untreated mental health problems were.
Mr Guihot had a basis for questioning Mr Gabriel as he did. That questioning and the insurer’s submissions assisted me, when it would have customarily been the claimant’s legal advisers who could have corrected what was patently incorrect. It was fair to ask that I weigh Mr Gabriel’s assertions against the documentary evidence, because he was unreliable.
When the insurer’s submissions and questioning had cleared up those inconsistencies, I could still see with the assistance of Dr Nair’s reports and his employer that Mr Gabriel before the accident, had a normal capacity for physical work, albeit overlayed with existing emotional problems, and that the accident caused objective physical signs which supported Mr Gabriel’s continuing reduced economic capacity as an excavator operator and labourer.
The insurer submitted Medical Assessor Kenna’s report could assist me more than Dr Nair’s recent medico legal report because the Medical Assessor’s findings are more detailed and contained a review and findings as to the totality of symptoms alleged.
The insurer refers to Medical Assessor Kenna’s report as “independent” compared with
Dr Nair. However, I note initially the insurer either proposed or acceded to the parties jointly instructing Dr Nair to assess permanent impairment and earning capacity.I prefer Dr Nair’s reports over Medical Assessor Kenna’s certificate, because they specifically address his work capacity and consider how the claimant’s disabilities could operate in the context of hard labour. Medical Assessor Kenna assessed Mr Gabriel’s permanent impairment at the time of assessment. Dr Nair examined Mr Gabriel twice and was able to check the progress of the condition.
Finally, the COVID-19 pandemic also restricted people seeing their doctors, including attending to obtain certificates. I also consider it explains why Medical Assessor Kenna did not see more GP visits about symptoms. I note that the insurer declined to continue medical assistance for Mr Gabriel, so that would have also reduced the number of attendances.
Mr Guihot agreed he had lost his memory of exactly what happened during pandemic, but my recollection was that construction and outdoor work proceeded much sooner than other modes of work outside the home.
ASSESSMENT OF DAMAGES
Past economic loss
In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined in a case such as this is whether a claimant has sustained a loss or diminution in his or her earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard for the provisions of s 4.7 of the MAI Act.
I prefer the insurer’s calculations setting out the claimant’s earnings before the accident, rather than Mr Gabriel’s assertions that he was averaging $1,050 net per week. The insurer analysed the data in the payslips, tax returns and assessment notices to obtain averages of weekly earnings before and since the accident.
The insurer submitted that the claimant’s pre accident net weekly income was $514.12.
According to the certificates of fitness contained within the claimant’s bundle,[11] he was certified as unfit for work from the date of the accident until Monday 18 May 2020. It would appear from the records of Fort Moy Excavations Pty Ltd that he returned to work on that day. The insurer would submit that past economic loss for the period 20 March 2020 to
18 May 2020 would be $4,627.08. I agree with that calculation.[11] A16 joint bundle.
Before the accident, Mr Gabriel was physically fit to operate an excavator as well as perform the collateral tasks. This included delivering equipment set up, changing attachments such as hammers, augers, and buckets. He could also do all heavy labouring tasks relative to landscape design. However, before the accident he was already under mental strain, which restricted his availability to do such work as that condition ebbed and flowed.
Observing him and hearing about his determination to “soldier on” with his mental difficulties before the accident it was apparent that neither he nor his employer considered performing less mentally demanding tasks to keep him working, notwithstanding he was physically fit.
After the accident, he was under physical restrictions so there were a change of circumstances in his employment. His employer provided duties that were meant to suit his frank injuries, which saw him return to attempt to work soon after his casts were removed.
Those suitable duties also mitigated his mental restrictions - whether the accident caused them or not - so he could do more hours. Those suitable duties were available because of his employer’s generosity and flexibility. Those duties were now known to be necessary because of the frank injuries.
Mr Guihot referred me to the decision in Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 about paying attention to the claimant’s past earnings in his tax returns and payslips when calculating loss after the accident. I must explain why I would depart from that rule, because I consider that those changed duties also changed Mr Gabriel’s earning capacity.
When he returned to work on 21 May 2020 it was to work in suitable duties, which Mr Gabriel told me were more manageable than the type of work he tried to do when physically fit, but mentally impaired before the accident. The change meant he could have earned $1,050 in those suitable duties if he had worked a full week, but he only lasted 20 hours because of his physical injuries. I will allow $525 loss for that week.
The time away from work from the end of May until 2 August 2020 means that he lost all that time away from performing suitable duties. I will allow that loss claimed at $9,450.
I accept that from 3 August 2020 to 5 October 2020 he had 50% capacity (working approximately 20 hours per week) to perform the suitable duties that would have earned him $1,050 net each week. Losing 12 weeks at that rate nets $6,300.
From 6 October 2020 to 13 December 2020, he was at 75% capacity doing suitable duties, so he lost $262.50 net per week for 12 weeks, netting $3,150.
The total past economic loss up to that date is $24,052.08. The lost super at 11% is $2,645.75. The total is $26,697.83.
I accept the insurer’s submissions about him now working at least a normal work week on average. While he continues to do those duties, he is not suffering an economic loss. The continuing availability of those duties depend on his employer’s magnanimity and continuing to operate that business.
Future economic loss
Section 4.7 of the MAI Act 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.
I find the claimant’s most likely future circumstances but for the accident were:
(a) he would have continued to work casually for Fortmoy Excavations Pty Ltd, and from time to time for other organisations. The fact that his employer had been so generous to him including the tone of the supporting letter indicates Mr Gabriel is well regarded at least by this employer, and possibly in the industry;
(b) that he would have attempted again to revive his own business, especially as his mental health improved. I cannot give lots of weight to its probable success but that is also due to the factors that affect any business and self-employment;
(c) the amount of work he would have undertaken as long as he remained physically fit would become consistent with full-time hours because his mental health situation was getting better. This is based on what he said about his family connection improving and that it was benefitting his mental health. There is no evidence about Mr Gabriel’s mental health other than what he has disclosed, and
(d) that he would have worked until he was 67, because he enjoyed the work and needed to work having gone through divorce, although against this is the risks from heavy labour and working machinery which could curtail that ambition.
The accident caused disabilities that mean that remaining employed heavily relies on Fortmoy staying in business and Mr Donoghue remaining in charge. He cannot easily pivot to working for other entities unless they accommodate him as Mr Donoghue has.
The accident-related disabilities mean he must forego any opportunities to return to operating his own business.
That the accident caused physical disabilities that offset the growth in economic capacity that improving mental health would bring.
That despite enjoying work and needing to work he may not be able to work until 67 years old.
Retirement age
Dr Nair supports early retirement for Mr Gabriel because of his accident-related conditions.
Dr Nair connects Mr Gabriel accident injuries making him physically less efficient to the possibility he will need to retire early.
It is not certain when that would happen, but the claimant has frank injuries that generated disabilities, which would impair his ability to operate machinery, dig, move heavy objects, work with his arms above his shoulders, which are part of working as an excavator operator and outdoor labourer. This puts a load on the forearms, which results in a greater load on the rest of upper extremities.
Residual earning capacity
The insurer bears an evidential onus to establish that a claimant has a residual earning capacity that he is practically capable (rather than theoretically capable) of exercising. A practical assessment is required of the likelihood of Mr Gabriel obtaining and keeping a real job - other than his current employment - accessible to him, considering he is disabled by pain, restriction, and impairment: see generally Mead v Kearney [2012] NSWCA 215 and South Western Sydney Local Health District v Sorbello [2017] NSWCA 201.
Despite the emotional struggles Mr Gabriel demonstrated a strong work ethic before and after the accident.
Mr Gabriel worked consistently as an excavator and labourer, although his mental condition before the accident led to him declining work over the eight years between the end of his marriage and the accident.
Mr Gabriel prided himself on being able to operate alone before the accident. Now he is dependent on having assistance when he has to perform the heavier tasks associated with operating machinery such as changing attachments and loading and unloading equipment. He has to be part of a team since the accident if he is to work consistently.
The insurer offered no evidence about alternative duties he could undertake outside of his current employment with Mr Donoghue. There was no material that supported Mr Gabriel being able to pivot into running teams as a foreman, thus reducing his need to be on the tools.
Loss of earning capacity
I am satisfied that Mr Gabriel has discharged the onus that the accident caused him to lose some of his future earning capacity. This is mainly due to:
(a) the broad consensus of medical evidence supports an assessment that
Mr Gabriel will struggle to find suitable work in the future outside of his current employment because his injuries have left him with disabilities that will hasten his retirement in operating machinery and heavy labouring;(b) his education and work experience limits him to this type of work;
(c) Mr Gabriel is no longer able to do all the duties he could before the accident. He depends on his employer to be understanding and patient with his disabilities;
(d) he would suffer a substantial prejudice on the open labour market, and
(e) there is a Mead v Kerney[12] factor, and he would not readily find suitable work if his current employment ceased.
[12] Kerney v Mead & Anor [2011] NSWSC 518.
Despite being able to calculate an amount for his past loss for a closed period, the facts about his past earnings, mixed with his mental health before the accident are not sufficiently clear to establish a precise future claim.
Mr Gabriel works in a field where casual labour or sub-contracting is the rule. The records show intermittent times when he had many hours of work contrasting with relative inactivity. Because he cannot run his own business, he is dependent on his employer to find and allocate work.
The claimant’s lawyers have attempted to formulate a precise calculation by claiming a precise weekly figure based on earning an average of $1,050 net per week working 30-50 hours per week before the accident, but the claimant’s financial records show earnings in the recent past that do not match that figure. Before the accident his capacity to work long hours, was impacted by his mental state, which was fragile due to long term post-traumatic stress disorder and stressors from family fragmentation.
In Penrith City Council v Parks [2004] NSWCA 201 the Court of Appeal concluded that it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine.
The medical evidence in Dr Nair’s reports opines that the accident caused injuries that will result in restrictions on his current earning ability due to the loss of efficiency, inability to lift and move heavy loads, reduced capacity to work with his arms overhead and early retirement when his level of disability increases with age.
Mr Gabriel confirmed that was happening.
Despite the lack of precision, the loss will be substantial. He is now 50 and looked forward to being able to work until he was 67.
To formulate a buffer, it is proper for me to also consider Mr Gabriel’s pre-accident health to reflect a discount for that aspect. See: Adams v Tomes [2003] NSWCA 269, and Commonwealth of Australia v Elliott [2004] NSWCA 360 per Giles JA (with whom Hodgson and Tobias JJA agreed) at [81].
Mr Gabriel gave evidence that the pre-existing mental health issues are mitigated now, but still partially operative.
It should account too for the additional fact that he was engaged in demanding physical work without restriction before the accident. That work can be dangerous resulting in injuries that would shorten his work life.
I propose the appropriate figure should be a buffer of $250,000 for his future loss working as an employed plant operator and labourer who may need to retire early and be prejudiced on the open labour market without the prospect of alternative employment.
Superannuation
Superannuation is accounted for in the buffer.
Loss of opportunity
Mr Gabriel says he has lost the opportunity to reinstate his own business. He had activated plans to return to work shortly before the accident, because he bought equipment and attempted to operate briefly as a sole contractor.
In the past he had shown he could be self-employed and work alone. He was asked about his financial situation when his business was running smoothly, and he told me that he owned a home, owned substantial plant for his business, owned and rode motorbikes for pleasure, was able to send his family on holidays and buy cars.
He gave evidence about suffering emotional and psychological problems, which took some time to resolve. He had been growing fitter and becoming more ambitious before the accident. Purchasing the machinery necessary to run his own landscape design business and attempts to operate the machinery showed his intent.
The medical evidence supports the claim that his disabilities would now prevent him from returning to self-employment.
I cannot calculate a precise figure for his loss of opportunity. However, following the dicta in Malec v Hutton[13] and State of NSW v Moss,[14] the fact that returning to business was a possibility, is something I can allow as a future buffer.
[13] (1990) 169 CLR.
[14] (2000) 54 NSWLR 536.
I allow $20,000 for an additional buffer for loss of opportunity.
Assessment of damages summary
Section 7.36 (1) (b) of the MAI Act requires me to assess the damages that a court could likely award in these circumstances.
I assess the damages for this claim based on the above findings:
past economic loss including superannuation $26,697.83
past and future loss of earnings including buffers and superannuation $270,000
Credit for statutory benefits ($1,150.68)
Total of economic losses $ 295,547.15
Costs and Disbursements
I note there is agreement on some of the disbursements.
I have calculated costs and disbursements at $29,498.04 .
Conclusion
On the issue of liability for the claim, the insurer admits it 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.
Under sub-sections 7.36 (3) and 7.36 (4) of the MAI Act, I specify the amount of damages for this claim as $295,547.15.
The amount of the claimant’s costs and disbursements are $29,498.04 assessed in respect of this claim.
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