Hamlin v QBE Insurance (Australia) Limited
[2025] NSWPIC 210
•15 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hamlin v QBE Insurance (Australia) Limited [2025] NSWPIC 210 |
| CLAIMANT: | James Hamlin |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | David Ford |
| DATE OF DECISION: | 15 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment; dispute about the amount of damages to be paid to the claimant; claimant was driver of a motor vehicle involved in a collision with the insured vehicle at a roundabout; insurer admitted liability and no allegation of contributory negligence; claimant suffered injury to lumbar spine; claimant is 24-years of age and an apprentice electrician; insurer conceded entitlement to non-economic loss; Held – claimant is entitled to damages for non-economic loss, past and future economic loss, and past and future superannuation. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of claim for damages made in accordance with s 7.36 of the Act On the issue of liability for the claim QBE’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.1. The amount of damages assessed in respect of this claim is $699,187.2. The amount of the claimant’s costs taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 are the regulated costs.3. Attached to this certificate are reasons for my assessment.4. |
STATEMENT OF REASONS
INTRODUCTION
On 4 February 2023 James Hamlin (the claimant) was driving his motor vehicle along Pembroke Rd, towards the roundabout at the intersection of Pembroke Road and O'Sullivan Road at Leumeah, when the motor vehicle being driven by the insured driver entered the roundabout from O'Sullivan Road, failed to give way, and collided with the rear passenger side of the claimant’s vehicle.
Approximately two weeks after the accident, he attended upon his general practitioner
Dr Harsha Lumburu, complaining of pain in the lower back with numbness and paraesthesia down the left leg, into the foot and toes. A CT scan of the lumbar spine dated 6 June 2023 showed L5/ S1disc herniation with compression of the S1 nerve root. The claimant was referred to physiotherapy. Ultimately, he was referred to a neurosurgeon, Dr Ganesh Shiva, whom he first saw on 21 June 2023. Initially he was treated with a cortisone injection to the S1 nerve, which worsened his pain. Ultimately, the claimant underwent a microdiscectomy and rhizolysis performed by Dr Shiva on 20 December 2023.The claimant was born in 2001 and is now 24 years of age. After completing year 12 at school, he attended university and commenced a cyber security course which he did not complete. He states he has been diagnosed with ADHD, and it was difficult for him to maintain concentration in a classroom or lecture theatre. He withdrew from this course.
At the time of the accident, he was working as an assistant manager at City Cave and commenced employment in February 2022. He ceased working there on 1 July 2023. After a lengthy period of unemployment, he obtained an apprenticeship as an electrician working for COMTEX, where he now works full time hours including some overtime.
The insurer wholly admitted liability by letter dated 31 October 2023. Accordingly, the claim comes before me solely to assess damages. The insurer has conceded the claimant is entitled to damages for non-economic loss.
Outline issues in dispute
The following issues have arisen in this matter:
(a) non-economic loss.
(b) past economic loss.
(c) future economic loss.
(d) past superannuation, and
(e) future superannuation.
The main issues requiring my determination are as follows:
(a) what is the entitlement to damages for non-economic loss;
(b) to what extent if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until the present time and for the remainder of his working life, and
(c) what is the entitlement to damages which flow from the findings on the above issues.
Documents considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Submissions made by the claimant
At the assessment conference the claimant confirmed he will complete his apprenticeship in two years’ time. Once he is qualified as an electrician, he can earn approximately $70 gross per hour. His employer COMTEX is engaged in work at the Sydney Western International Airport. He has worked there for the last two years. He described the work as being light and he can cope with his present duties. He understands the project will finish in approximately six weeks. He is only obliged to carry light materials. There is no repetitive bending over or crawling around in confined spaces. He still requires pain medication and is prescribed Lyrica, Nurofen and Panadeine Forte. The anti-inflammatories can cause issues with his stomach.
He attends Ultimo TAFE once a week for the whole day and has been successful in passing his exams. He wants to continue working at COMTEX and his goal is to be a supervisor. At this stage, he does not know whether he wants to run his own business.
I refer to the statement of the claimant dated 29 January 2025. I note the following paragraphs:
“15. After the motor accident, I underwent a plethora of treatment including regular attendances with my GP regular physiotherapy attendances regular attendance is with my treating surgeon and of course surgery.
16. On 20 December 2023 I underwent a micro discectomy at the hands of Dr Shiva.
17. The pain in my lower back has not subsided despite my surgery, although I am able to work in a laborious role at the moment, in full time hours. I do so with excruciating pain throughout the day. I have constant pain in my lower back that radiates into my legs particularly the left. I feel numbness in my left leg most of the day and sometimes when I sit, I will have an awkward stabbing pain down my leg.
18. At the end of each day my back is terribly sore. At the end of the week, it is even worse
19. I have recently split with my girlfriend, because I cannot bear to sit in the car for too long to go and visit her. All I can force myself to do is drive to and from work and that is about it. It is a shame because everything was going so well and, but for this injury, I would still be with her.
20. I am able to push myself through the work week because I have a mentality to work because I am only 23 years old, and I have my whole life ahead of me., I essentially forced myself to work through the pain and discomfort.
21. I know that this is not sustainable and there will come a time in the future, hopefully not the near future when I need to reconsider my career options, drop my hours or consider early retirement.
22. The problem with any of the above options is my ADHD will only allow me to work in roles that involve me being hands on. Unfortunately, my back injury has set a timer as to how long I can be in these hands-on roles for I have no idea what I will do when my pain becomes unbearable, and I could no longer work in hands on or laborious roles
27. My short-term goal at the moment is to reach the end of my electrical apprenticeship at least so that I have something to fall back on later down the track.”
The solicitor for the claimant arranged for him to be seen on a medico legal basis by Dr Peter Giblin, orthopaedic surgeon, and I refer to his report dated 10 September 2024. I refer to page 2 of the report and I note the following under the heading “Disabilities and Complaints”,
“His chief complaint is constant backache with intermittent sharp stabbing pains nearly always aggravated by long periods of sitting or bending and twisting. The pain in his leg is much diminished, but he still has some occasional pins and needles and discomfort, especially in the hamstring area. He has control of his urinary and rectal sphincters. Most nights he never gets more than four hours of sleep, at a stretch, because of the back pain. His sex life is table has greatly reduced.
Since his injury he has given away going to the gym and his hobby of target shooting has been compromised. Around the house he describes himself as having moderate problems in terms of his daily personal and household activities and he no longer does the outside maintenance work for his parents”
On page 4 of his report, I note the following under the heading “Prognosis”,
“His condition is stable, and his gentle prognosis is reasonable, notwithstanding the acknowledgement of persisting symptoms, permanent physical limitations and the prospect of long-term deterioration and future surgical considerations.
At this point in time, I assess him as permanently unfit to engage in a work environment requiring unrestrained heavy repeated bending, lifting and twisting. He would be fit for a sedentary or less physically demanding job, avoiding the aforementioned physical restrictions and one at which he can change his body habitus at will. It would be a reasonable projection that he will be able to finish his four-year electrical apprenticeship.”
On page 5 of his report, he states the following:
“In addition, the nature of his injury is such that it will remain susceptible to material aggravation from innocuous physical events and thereby limit his ability to engage in independently and without restriction in a normal open workplace environment
In essence, he is embarking upon the route of a blue-collar worker with a bad back, for which there is no satisfactory permanent medical or surgical solution. The most likely outcome is gradually diminishing physical stamina, ongoing symptoms, further surgery and the need to seek a self-employed or restricted physical environment on a part time basis. The timelines are difficult to determine, but are likely to occur after he turned 30, and then, be progressively accelerated over the next two decades.
The associated physical restrictions will apply indefinitely to his domestic and recreational occupational activities, all up his prognosis is that of deterioration and uncertainty.”
I refer to the report from his treating neurosurgeon Dr Shiva dated 14 April 2025. I note the following under the heading “Current Status and Treatment Plan”,
“At 11 months post microdiscectomy, Mr Hamlin has developed recurrent symptoms. A follow up MRI has demonstrated recurrence of disc herniation with left S1 nerve root compression. A nerve root injection has been scheduled for next month. If this intervention proves successful and his symptoms improve, further surgery may not be necessary, and his prognosis would be favourable. However, if the injection proves ineffective a revision microdiscectomy may be required.”
In relation to future management, he opines the following,
“If a revision microdiscectomy becomes necessary, Mr. Hamlin will require 4-6 weeks off work, after which a graduated return to light duties may be possible. He may require ongoing neuro surgical intervention for the next 1- 2 years doing his necessary. His rehabilitation programme will include physiotherapy and hydrotherapy, initially twice weekly, reducing to weekly and then fortnightly for maintenance.”
Regarding an occupational outlook, he opines the following,
“Based on Mr Hamlin’s successful return to work between May and October of the previous year, his future work capacity appears promising with potential for advancement. He is currently fit for reduced hours and light duties in his role as an electrical apprentice.”
The solicitor for the claimant arranged for him to be examined by physiotherapist Anjel Alias of High-Performance Health. I refer to his report dated 14 July 2024. He opined the claimant is certified to be fit to work as an electrical apprentice, but should avoid the following:
· repetitive forceful lifting from the floor;
· repetitive forceful lifting from waist to shoulder height;
· repetitive forceful lifting from waist to above shoulder height;
· repetitive and forceful carrying;
· repetitive and forceful pushing and pulling;
· prolonged driving more than 15 - 20 minutes, and
· prolonged sitting and standing more than 15 - 20 minutes.
Mr Alias states the following on page 12 of his report, under the heading “Current and Future Earning Potential”,
“Despite James's current employment and evident earning potential, there are uncertainties about ability to maintain the same level of earning potential in the future. His ongoing significant pain during and after work, may impact his ability to continue working at the same capacity. Considering his medical condition progress in rehabilitation, functional limitations substantial return to work challenges and pre-existing employment barriers, the following services are essential to improve his work readiness and employability”
He then recommends the claimant engage in several physiotherapy programmes.
Submissions made by the insurer
The insurer arranged for the claimant to be examined by Dr Robin Mitchell, occupational physician, and I refer to his report dated 16 October 2024. On page 3 of his report, under the heading, “Functional Capacity” he states the following,
“Mr Hamlin said that he could manage the following activities and time frames before increasing symptoms would develop,
· sitting for 10 minutes
· standing for 30 minutes
· walking for one or 2km
· lifting up to 20 kg he said on medical advice
· driving for up to 60 minutes”
Dr Mitchell states the following on page 6 of his report, under the heading “Current Capacity for Work”,
“Mr Hamlin has in my opinion a current capacity for suitable work that would avoid any aggravation of the reported symptoms and providing the following precautions were available. He should be able to manage such work on a full-time basis.
· Mr Hamlin should manage all physical activities below mid chest height and close to the body trunk particularly if repeated or sustained in nature to avoid aggravating his symptoms.
· It would be appropriate that frequent manual handling actions should be limited to 10 kg in force with respect to lifting, carrying, pushing and pulling actions undertaken
· On an occasional basis, up to 20kgs should be possible in the manner described above.
· Fixed and awkward spinal posture should be avoided, including unsupported spinal bending and frequent twisting of the lower back
· Frequent posture movement should take place throughout the day.”
Dr Mitchell provided a supplementary report dated 27 January 2025, in which he responded to the opinions expressed by Dr Giblin in his report dated 10 September 2024. On page 2 of his report, he states the following,
“There is absolutely no medical indication that further surgical treatment would be inevitable or likely to become necessary. The radiological studies already undertaken found no degenerative changes of significance and the isolated disc protrusion at L5-S1 has been addressed surgically with a good outcome achieved.”
He further states he agreed with the opinion of Dr Giblin when he opined,
“at this point in time, I assess him as permanently unfit to engage in a work environment requiring unrestrained heavy, repetitive bending, lifting and twisting. He would be fit for a sedentary or less physically demanding job, avoiding the above-mentioned physical restrictions and one at which he can change his body habitus at will. It would be a reasonable projection that he is able to finish his four-year electrical apprenticeship.”
REASONS
Non-economic loss
The claimant is entitled to damages for non-economic loss. The solicitor for the claimant submitted a sum of $450,000 for such damages, and in response, the insurer has submitted a sum of $200,000. In determining the appropriate amount to be awarded to the claimant, I was assisted by the reports of Dr Giblin. I was also assisted by the statement of the claimant dated 29 January 2025, referred to in paragraph 12 above.
I find the claimant to be honest and forthright when questioned by both counsel at the assessment conference. I also found him to be quite a stoic individual, and I accept this accident had a significant impact upon his enjoyment of life, and daily, he is in discomfort and suffers, as such, continually.
He is a young man, and I consider his ongoing disabilities are permanent. I therefore consider an appropriate allowance for non-economic loss, having regard to his injuries and disabilities, is the sum of $300,000.
Past loss of earnings
The parties agreed the amount to be allowed for past loss of earnings is the sum of $19,500. Statutory payments total $5,656.68. Fox v Wood is agreed in the sum of $2,542.
Past superannuation
The parties agreed the amount to be allowed for past superannuation is $2,145.
Future loss of earnings
The solicitor for the claimant, subsequently after the assessment conference, recalculated the claim for future loss of earnings and lodged on the portal a claim for future loss of earnings in the sum of $731,956.41 and a claim for future superannuation in the sum of $106,426.46. The claim for future loss of earnings was calculated in accordance with the deferred tables, on the basis, that in the future, the claimant would suffer a diminution in his earning capacity, over various periods, until the remaining five years of his working life, when it is submitted, he would be fully incapacitated for all employment.
I find the submissions are not substantiated by any documentation, including medical reports lodged in the application filed on behalf of the claimant. At the conclusion of the assessment conference, I indicated to the parties, I considered an amount by way of a buffer would be more appropriate circumstances of this claim.
I find the most likely future circumstances for the claimant, is that he will continue to suffer from his ongoing disabilities, which will cause him to suffer a diminution in his earning capacity for the remainder of his working life. I also find he will always be at risk on the open labour market, should he not be capable of continuing to work in his chosen profession as an electrician.
I accept the submission made by the insurer that it is appropriate in the circumstances of this matter, to allow an amount by way of a buffer, rather than a precise calculation. I therefore consider it appropriate to award future loss of earnings by way of a buffer, in the sum of $375,000, which includes an allowance for loss of future superannuation.
Assessment of damages summary
Under sub-s 7.36 (1)(b) of the Motor Accident Injuries Act 2017 (MAI Act), I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
non-economic loss $300,000
past loss of earnings $19,500
past superannuation $2,145
future loss of earnings (incl super) $375,000
Fox v Wood$2,542
total of economic losses and non-economic loss $699,187
reduction for contributory negligence Nil
TOTAL DAMMAGES ASSESSED $699,187
Costs and disbursements
I assess the claimant's legal costs and disbursements in accordance with the MAI Act and the Motor Accident Injuries Regulation 2017 as scheduled fees and agreed disbursements.
CONCLUSION
On the issue of liability for the claim QBE'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 $699,187 which includes the statutory benefits paid by the insurer which total $5,656.68.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, is assessed in accordance with the MAI Act as the scheduled costs and agreed disbursements.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
(a) MAI Act;
(b) Motor Accident Injuries Regulation 2017;
(c) Personal Injury Commission Regulation 2020;
(d) Motor Accident Guidelines 2017, and
(e) Personal Injury Commission Rules 2021.
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