Hall v Transport Accident Commission of Victoria
[2023] NSWPIC 267
•8 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Hall v Transport Accident Commission of Victoria [2023] NSWPIC 267 |
| Claimant: | Brian Anthony Hall |
| insurer: | Transport Accident Commission of Victoria |
| Member: | Hugh Macken |
| DATE OF DECISION: | 8 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - MotorAccident Injuries Act 2017; assessment of claim for damages; section 7.36(4); the claimant was injured when he went off the road whilst riding his motorcycle after the insured’s vehicle emerged on his right whilst exiting a caravan park; the insurer has admitted breach of duty of care on the part of its insured but alleges contributory negligence of 50% on the part of the claimant; the parties agree that the claimant’s injuries exceed the 10% whole person impairment threshold; matters requiring assessment are contributory negligence, non-economic loss, past and future economic loss; expert reports; Held – the amount of damages for this claim are assessed as $800,000 which includes the statutory benefits paid by the insurer; order for costs; breach of duty of care, loss and damage as a result established. |
| determinations made: | AMENDED CERTIFICATE OF DETERMINATION 1. I assess the Claimant’s legal costs and disbursements in accordance with the MotorAccident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet in the sum of $66,855.10. 2. On the issue of liability for the claim, Transport Accident Commission’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. 3. I specify the amount of damages for this claim as $800,000 which includes the statutory benefits paid by the insurer. 4. 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 $66,855.10 inclusive of GST. |
BACKGROUND
The claimant was injured when he went off the road whilst riding his motorcycle after the insured’s vehicle emerged on his right whilst exiting a caravan park. The insurer has admitted breach of duty of care on the part of its insured but alleges contributory negligence of 50% on the part of the claimant. The parties agree that the claimant’s injuries exceed the 10% whole person impairment threshold. Accordingly, the matters requiring assessment are contributory negligence, non-economic loss, past and future economic loss.
It is appropriate to deal with the question of a brief outline of my findings in respect to the claimant and then the issue of contributory negligence prior to the assessment of damages in this matter.
The claimant is a 55 year old man who provided 2 statements in respect to this matter and was questioned at length at the assessment conference.
I found him to be a truthful witness and I accept the veracity and accuracy of his statement and his responses to the questions at the assessment conference.
Whilst he originally had a poor recollection of the precise sequence of events of the accident he ultimately had a good understanding of all the circumstances of the accident. He was honest in respect to his pre-injury health concerns, particularly cardiac issues, and did not seek to embellish his ongoing disabilities in any way. He is a hard working and industrious man who has done his level best to return to some type of employment. He lives in a somewhat unique environs being in a very small country town with a population of about 3000 people in regional New South Wales.
LIABILITY
The insurer submits that there ought to be a finding of 50% contributory negligence as the claimant ought to have seen the vehicle driven by the insured driver pulling out onto the road had he been keeping a proper lookout. That is, that he did not act reasonably in that:
“Reasonable actions would have involved slowing down rather than trying to go past the insured driver’s vehicle. His failure to do that was a significant cause of the accident”.
There was a very significant amount of material in respect to this. There was evidence from Chris Hall at the assessment conference in which different scenarios were put to him and identified some deficiencies in his report. In particular it was noted that he did not attend at the scene of the accident but rather made his calculations and observations based on Google Earth maps. The primary matter of concern was the assumption he was requested to make in respect to when the claimant first observed the insured’s vehicle. In particular, in his instructions, Mr Hall was asked to assume that:
“The claimant was about 200 metres away to the left when the insured driver made a right hand turn onto Tooma Road.”
I do not find this contention and assumption to have been made out. Indeed the material, which I accept, is completely contrary to this.
The claimant stated at the assessment conference that he was “on the bridge” and shortly to commence riding up the hill, when he saw the insured’s vehicle to his right. Once the vehicle turned into his lane he was unable to overtake the vehicle on the right because of an oncoming car. He was unable to stop in time and accordingly, he pushed his bike to the left hand side of the road, onto the shoulder where he was thrown from his bike. The distance from whence the claimant first saw the vehicle and the intersection from whence the insured vehicle came out was measured as being 61 metres. The material also contained a statement of Jason Scott Brown who was driving behind the insured vehicle. He stated:
”He was not driving at an excessive speed, maybe 100 to 105 kilometres.”
There is no allegation that the claimant was exceeding the speed limit. He goes on to say:
”At the point when the motor cyclist was on the bridge, probably by about a bike length, the Mitsubishi Magna came out in front of him from the northerly exit of the camping ground. I observed the motorcycle breaking heavily, because the back end of the bike was whipping out, which is normally caused by breaking.”
This statement says:
“The cause of the accident was totally because the Mitsubishi Magna pulled out in front of him when he was on the bridge giving him no alternative but to react in the way he did”.
I do not accept the version of events submitted by the insurer based on a statement from the insured driver, that he saw the motorcycle “200 metres away”. I note the insured driver did not give evidence at the assessment conference and accordingly the claimant was not able to test this evidence in any meaningful way.
In my view the claimant’s evidence is preferable to that suggested by the witness, Christopher Walker, who said:
“As the vehicle was coming out he saw motorcycle head down at high speed Magna was a couple of hundred metres away”.
At the assessment conference it was conceded by Chris Hall that had he been made aware that it was only 60-65 metres from the first observation of the insured vehicle by the claimant then the claimant would not have been able to brake in time to avoid an accident. That is, he would have still been travelling more rapidly than the car and would have needed to take evasive action. He stated at the assessment conference that, noting the distance between first observing the insured vehicle and going off the road was not 200 metres but about 60-65 metres that:
“In those circumstances he could not have done anything other than other than what he did”.
In all the circumstances I am not satisfied the insurer has established any contributory negligence on the part of the claimant. Accordingly, I assess contributory negligence at zero%.
NON-ECONOMIC LOSS
The claimant submitted that the appropriate figure for non-economic loss is $350,000. The insurer submitted a figure of $150,000 was a fair reflection of the pain and suffering and loss of capacity of pre-accident social, sporting, domestic and recreational activities which goes to make up non-economic loss.
I note the claimant continues to suffer significant problems particularly in respect to his shoulders to which he has undergone operative procedures. This adversely affected his psychological condition. He has difficulties performing day to day activities and these accident related disabilities will affect him for the rest of his days. I assess non-economic loss in the sum of $250,000.
PAST ECONOMIC LOSS
The insurer has made payments for pre-accident weekly earnings to the claimant totalling $47,572.91. This includes an agreed amount for tax payments (Fox v Wood) of $9,500. The insurer submits that a cushion for both past and future economic loss $100,000 would be allowed. The claimant submits that a calculation of total past economic loss, excluding the payments made by the insurer, ought to be a figure of in the order $250,000.
The matter is somewhat complicated by a number of factors. Firstly, although the claimant has been working as a truck driver shortly before the accident he had in fact ceased work a few days before the accident. This is apparently on medical advice is to allow the claimant to manage a pre-existing heart condition. That is, his treating cardiologist advised him that truck driving was not as healthy for him as painting contracting work. Noting this he was in fact between jobs at such time of the accident although he states, and I accept, he had arranged some painting jobs.
Since the accident the claimant had been significantly disabled and has shown great stoicism in seeking to return to work. He left shoulder causes significant pain, discomfort and restriction of movement. He has undergone an arthroscopic repair to his shoulder. He has worked driving front-end loaders and a backhoe as well as tippers. This proved to be quite difficult for him noting the gear changes required and he was unable to continue this employment after about 7 months work in the first half of 2020. That he showed stoicism is also reflective of his ongoing capacity for work.
The material does bear out significant difficulties in the claimant returning to work. This is partly as a consequence of his limited vocational qualifications but it is also reflective of the reduced occupations available to him living, as he does, in regional NSW.
I accept that there is some uncertainty in respect to calculations of past economic loss noting he had just ceased work as a truck driver at the time of the accident, has shown a capacity to work since the accident notwithstanding his injuries and noting that there are also some non-accident related factors, primarily in relation to his cardiac issues, which ought to also be taken into consideration.
I agree with the insurer insofar as I consider it a proper matter to provide a buffer for past economic loss which would include the payments made by the insurer and the Fox v Wood component of these payments agreed between the parties in the amount of $9,500.
I note it a little over 5 years since the accident and the claimant has only been able to work a relatively short period since the accident.
I assess the claimant’s past impaired earning capacity as being reflective of a figure which is little over half of his pre-injury earnings. There is also some uncertainty about whether or not he would have had the benefit of any employer superannuation contributions in any event.
In all the circumstances, and including the payments of the pre-accident weekly earnings paid by the insurer, I assess the claimant’s past economic loss, as a buffer, in the sum of $200,000.
FUTURE ECONOMIC LOSS
Since January 2022 the claimant has been in receipt of Centrelink payments. He is a 55 year old man who would, in the ordinary course of events, would have had a continued working life of between 10 and 15 years.
The insurer’s submissions suggested a modest buffer for future economic loss to take into account any diminution in his earning capacity. The claimant’s submissions are that he suffered a total loss of earning capacity and future economic loss ought to be allowed to age 67 together the loss of superannuation benefits.
As I have outlined above the claimant has not suffered a total loss of his earning capacity. He is a man of strength and stoicism who, despite severe difficulties in undertaking the physical work which he had previously undertaken, does have a residual earning capacity. This has been demonstrated by his attempts to work since the accident. That said, I have no difficulty accepting that his impaired earning capacity is reflective of a loss of earning capacity which would exceed 50% of his pre-injury earnings. Such a calculation, uncertain and difficult to quantify, would also need to take into account some wage earnings since the time of the accident as well as the loss of employer superannuation contributions.
I agree with the insurer that it is too difficult to calculate with precision. In these circumstances I would assess the claimant’s loss of future earning capacity as being generally reflective of a figure of in the order of $750 per week for about 12 years noting that at the time of the accident it was the claimant’s intention that he would be self employed and accordingly has not established a loss of employer superannuation contributions.
In all the circumstances I assess the claimant’s future economic loss in the sum of $350,000.
Assessment of Damages Summary
I assess the claim as follows on the findings set out above:
Non-economic loss $250,000
Economic losses
·Past loss of earnings (incl. superannuation and Fox v Wood) $200,000
·Future loss of earnings (incl. superannuation) $350,000
Total of economic losses and non-economic loss $800,000
Total Damages Assessed $800,000
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
Statutory benefit payments $47,572.91
Conclusion
Costs and Disbursements
I assess the Claimant’s legal costs and disbursements in accordance with the MotorAccident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet in the sum of $66,855.10.
On the issue of liability for the claim, Transport Accident Commission’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.
I specify the amount of damages for this claim as $800,000 which includes the statutory benefits paid by the insurer.
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 $66,855.10 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017
·Motor Accident Injuries Regulation 2017
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