Hinch v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hinch v Allianz Australia Insurance Limited [2024] NSWPIC 604
CLAIMANT:	Scott Hinch
INSURER:	Allianz Australia Insurance Limited
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	29 October 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of contributory negligence and damages; claimant suffered injury while standing at the rear of his vehicle at night in blizzard like conditions; hazard lights not activated; vehicle parked on roadside in a position that reduced ability of other drivers to observe him and his vehicle; Held – claimant failed to exercise reasonable skill and care; contributory negligence established and found to be 20%; claimant suffered significant right leg injuries, scarring and post-traumatic stress disorder; damages for non-economic loss assessed at $320,000; awards made for past and future economic loss; after reduction for contributory negligence damages of $448,243 assessed.
DETERMINATIONS MADE:	CERTIFICATE Liability for the claim is admitted. The claimant’s damages are to be reduced by 20% on account of his contributory negligence. In accordance with s 7.36 of the Motor Accident Injuries Act 2017 I assess the amount of damages for this claim as $448,243. The insurer is to pay the claimant’s costs and disbursements in accordance with the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017.

STATEMENT OF REASONS

BACKGROUND

Scott Hinch (claimant) was injured in a motor accident on the Alpine Way, Kosciuszko National Park, on 9 August 2019 (accident). Following the accident he made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer). The insurer admitted liability for the claim on 4 April 2022. Contributory negligence has been alleged to the extent of 25%.
The claim was referred to the Commission for assessment of both contributory negligence and damages. The claimant is entitled to an award for non-economic loss, having been assessed by Medical Assessor Home as having a permanent impairment that is greater than 10% as a result of his accident caused physical injuries. The claimant also seeks awards for past and future economic loss.

ASSESSMENT CONFERENCE

The matter proceeded to assessment on 11 September 2024. The claimant gave evidence as did Mrs L’Orange, the driver of the vehicle insured by Allianz.
The parties confirmed that as the claimant had not received any weekly payments of statutory benefits there was no income tax paid or payable on statutory benefits.
The claimant’s pre-accident net weekly earnings were agreed in the sum of $1,376. It was also agreed that this equated to an hourly rate of $36.
At the conclusion of the assessment directions were made for provision by the parties of brief submissions addressing economic loss.

EVIDENCE

The parties provided a joint bundle of evidence relied on for the purposes of the assessment.
In addition to the documentary evidence and dashcam footage, the claimant and Mrs L’Orange gave oral evidence at the assessment. Both the claimant and Mrs L’Orange presented as honest and measured witnesses who did not embellish their evidence.

CONTRIBUTORY NEGLIGENCE

Evidence

Claimant’s evidence

In an application for personal injury benefits dated 20 August 2019 the claimant provided the following description of the accident:
“The car was stationary on the side of the road when I got out of the car & walked to the rear of the vehicle to change my shoes. I was then hit by another vehicle…travelling 15-20 km/hr. The car slid into the back of me, crushing my right leg.”
A statement dated 27 September 2019 was taken from the claimant by an investigator appointed by the insurer. The statement records that the accident occurred at “about 10:15pm”. The claimant stated that:
“[15] …I had pulled over, off to the side of the road leaving the headlights and parking lights on as the weather conditions had deteriorated significantly and I had decided it was too dangerous to continue without snow chains. The road had become icy and it was blowing a blizzard. Once pulled over I decided to call my sister who was in Jindabyne at the time and asked her to attend my location and bring me some snow chains.
[16]   On that particular stretch of road it is commonly known that you are not normally required to carry chains between Jindabyne and Bullocks Flat however at the time of turning onto Alpine Way the road was open. The weather was not great but in no way severe enough to know that chains would be required and there were no signs stating you need to carry chains at the time.
[17]   Whilst waiting for my sister’s arrival I decided to change my sneakers for a pair of boots that were in the boot of my car. I got out of the driver’s side and walked slowly to the back of my vehicle as the ground was slippery. I got to the back of the vehicle in front of the driver’s side tail light and opened the boot. As I was reaching across and grabbing my boots it was at this moment I was hit from behind. The driver of the car that hit me did not sound the horn and I did not hear or see the car coming due to the severe weather. I immediately fell to the ground in agonizing pain…
[18]   I would estimate her speed when she hit me would not be more than 15klm per hr as the weather conditions were so poor she would have been going slow…
[20]   …I was completely off the road and stationary when the accident happened, effectively a pedestrian…”
The claimant provided a supplementary statement dated 4 June 2024. He stated that prior to the accident he was driving a 2007 blue Nissan hatchback westwards along Alpine Way in the Kosciuszko National Park area with his wife. He states:
“[17] The weather had deteriorated. The road had become quite icy and covered with snow. I pulled the car over onto the shoulder of the lane. I did not think it was safe to drive any further without snow chains…
[18]   I called my sister and asked her to bring snow chains so I could continue driving.
[19]   My snow boots were in the boot of my car. They are timberland brand and waterproof. I decided to change into my snow boots before fitting the snow chains. It was going to be easier to apply the snow chains to my tyres while wearing snow boots instead of my sneakers, which would have been slippery on the icy road.
[20]   The boots were to the left side of my car boot. I was in front of the driver’s side tail light. As I was reaching to grab my boots I was struck by the vehicle at fault.
[21]   I did not hear a horn or any other sounds from the vehicle at fault to alert me that it was approaching.
[22]   I was facing towards my own vehicle whilst taking out my snow boots.
[23]   My right leg was crushed between my car and the vehicle at fault, causing significant lacerations and a large open wound at the front of my leg…”
In oral evidence the claimant stated that he commenced his journey in either Wollongong or Camden; he could not recall which. He was travelling to his lodge at Perisher. His intention was to catch the ski tube to Perisher, and was travelling on the Alpine Way on his way to the ski tube immediately prior to the accident.
The claimant’s evidence was that there weren’t any signs of serious weather conditions at Jindabyne, prior to him turning onto the Alpine Way. He gave evidence that there was no snow in Jindabyne, no ice on the road, no clouds in the sky, and it was “pretty clear”. The claimant’s evidence was that he had been on the Alpine Way for roughly 10 minutes, and had travelled 10 to 12km, before the weather started to change. His evidence was that as he started to ascend a hill on the Alpine Way, it became obvious that there was weather coming. The change in weather conditions was “fairly sudden”.
In response to questions from Mr Nesbeth, the claimant gave evidence that there was no snow on the road until he reached the top of the hill. He agreed that at the position he brought his vehicle to a stop there was snow on the side of the road. He confirmed that the reason he pulled over where he did was because his vehicle had slipped on the road. His evidence was that as he came over the other side of the hill the “minute [he] touched the brakes [he] felt the car start to slide”, and that:
“The minute it started sliding I pulled the car over and because it was sliding it’s sort of … you can’t just brake on ice, it will just keep sliding so it was sort of like immediately after I realised it was going to slide I moved the car off the road.”
The claimant agreed that once his vehicle started to slide he manoeuvred it to the side of the road. His evidence was that the vehicle was “starting to slide so [he] started to pull over and…it still slid into that position”.
The claimant gave evidence that he stopped on the shoulder of the road, entirely to the left of the yellow fog line. His evidence was that he had brought his car to a stop “as far as [he] could go without driving onto the snow, as far left as possible... past the yellow line”.
The claimant gave evidence that he was a regular snowboarder at Perisher. He did not have chains in his car, and didn’t usually have chains as they were not required on that stretch of road. He recalled passing a chain bay, and said at that time there was a “bit of wind”, but no obvious signs of snow or ice on the road. His evidence was that there was also a chain bay ahead of where he ultimately stopped his vehicle. He said that he decided to stop where he did because it was too dangerous to proceed further. He described travelling “really slow”, less than 15kmph, because the weather was so bad. He stopped his vehicle on the side of the road, and called his sister to ask her to bring him chains. His sister was coming from Jindabyne, and he expected her to reach him in 10-15 minutes. After making the call, he then left the vehicle, and “shuffled very carefully” to the back of his car because “it was really quite slippery”. He then opened the car boot to get his boots. He explained that he was wearing sneakers, that he could feel the road was slippery under foot, and that he knew he couldn’t put the chains on wearing sneakers, as they were not suitable for the conditions. He was asked whether the best time to change his shoes was after his sister had arrived, parked behind his vehicle, and he had chains to put on. His response was “not necessarily”. He explained that his intention was to change into the boots, and get back into his car until his sister arrived.
The claimant’s evidence was that as he was reaching for his boots, he was standing at the rear of the car, near the driver’s side taillight, facing forward. He was not covering the light cluster as he was leaning across to reach his boots that were positioned to the left. While he was standing to the right, he was not in front of the lights. His evidence was that as it was very slippery, he did not move to the left side of the vehicle to retrieve his boots. He was holding onto the car with his right hand and reaching for his boots with his left hand. He disputed that he stuck his right leg out as he was balancing. The claimant confirmed that the inside of his right leg was injured, that he is “duck-footed”, and that this explained his injuries.
The claimant agreed that, in hindsight, it would have been safer to stand on the left side of the car, away from traffic, as he reached into the boot. He also agreed that it is usually safer for a pedestrian to be positioned away from vehicles.
The claimant’s evidence was that he was not aware there was a vehicle on the road coming towards him. He first became aware of the vehicle when it struck him. The claimant’s evidence was that the vehicle did not sound its horn, he did not see the throw of the headlights, and he had no warning of its approach. The claimant was not able to say the angle at which he was struck as he was facing forwards.
The claimant gave evidence that when he pulled his vehicle over the headlights were on. He thought he had activated his hazard lights. He later gave evidence that he was “fairly certain” that the hazard lights were on. His evidence was that he didn’t turn them off, and that he “didn’t turn the car off”. He agreed that the only hazard light seen in the dashcam footage were those on the BMW, Mrs L’Orange’s vehicle.
The claimant’s evidence was that it did not occur to him at the time that if the road was slippery for him, it would be slippery for other drivers. He said that he did not expect there to be a car sliding into him. He explained that it was past 10.00pm, that there were not many other cars around, and none at the time he pulled up. He also gave evidence that at the time it did not occur to him that it would be safer to stop somewhere else.
The claimant was shown the dashcam footage taken from the second vehicle that hit his car. He had not previously seen the footage. His evidence was that the weather conditions seen in the footage were similar, but a bit worse than the conditions when he pulled over. He agreed that he could not see the hazard lights of his vehicle activated in the footage.

Mrs L’Orange’s evidence

Mrs L’Orange, the driver of the vehicle that collided with the claimant, gave a statement dated 1 October 2019. She stated that the accident occurred on Alpine Way, Kosciusko National Park, about four kilometres from the ski tube away from Jindabyne, at approximately 10.15pm. Like the claimant, she was travelling towards the ski tube. She stated that the damage to her car was to the front and rear door. The whole left side of the vehicle collided with the claimant and the right side of his vehicle as her vehicle slid off the road. The road was covered in snow and ice and was very slippery.
Mrs L’Orange was familiar with the roadway where the accident occurred and had travelled on it prior to the accident. Her evidence was that “…the weather was not fine. It was clear however had snowed and been wet prior to the accident. This caused the road to be covered in snow and ice”.

She stated:
“[38] I was going about 20k to 30k per hour as the conditions were very slippery. I came up over a hill and as I started to drive downward the car started to slide. I don’t believe I hit the brakes at all and I can just remember trying to steer away from Scott’s car. I started sliding before I saw Scott’s car. I recall trying to steer away but there was nothing I could do.
[39]   I saw Scott standing near the back right side corner of his car. It happened very quickly with no control over my car where it slid into the back corner of Scott’s car and then my car continued sliding along his car. It felt like I slid into his car and after impact my car came off his and at that point I regained control of my car.
[40]   I didn’t see my car hit Scott because I was focusing on steering away from him and his car. I recall my teenage sons screaming just after the collision and I said, ‘Did I hit him.’ They replied, ‘Yes.’
[41]   The impact caused my car to be pushed back onto the road where I regained control and I pulled to the side of the road not far in front of Scott’s vehicle…
…
[45]I was concerned as I thought another car may crash into us. I got my kids out of my car. I was also concerned Scott could get hit again at the back of his car. I think his sister and some other people arrived to help…
…
[47]Whilst waiting for the Ambulance another vehicle came over the hill in the same direction we were travelling. As the other car came over the hill it slid off the road and collided with Scott’s car as well…”
In Mrs L’Orange’s opinion, the cause of the accident was the weather and the road being covered in ice and snow.
In her oral evidence at the assessment, Mrs L’Orange described the conditions as she drove along the Alpine Way as “very snowy”. She said that there was snow all across the road, and it was “like blizzard conditions”. She was travelling “quite slowly and being very cautious”. Her evidence was that she was travelling at a speed of 20-30kmph. As she proceeded over the hill, she felt her car starting to slide out to the left, and she then lost control of the steering. She described the car sliding, and said that she saw the claimant standing at the back side of his car. Although she tried to veer away, she “couldn’t really do anything”.
Mrs L’Orange did not recall whether or not she saw any rear light or hazard lights on the claimant’s vehicle, nor did she recall whether she saw the claimant’s car before her car started sliding. She described the car sliding sideways. She did not see her car hit the claimant.
Mrs L’Orange gave evidence that she knew it was going to be snowing, and that when she stopped in Cooma to get chains she was told that they did not make chains for her car. Her evidence was that she first noticed her car starting to slip just before she lost control. She described snow covering the road from just after the turnoff from Jindabyne onto Alpine Road, “a couple of kilometres” from the turnoff. She thought “… it was covering the road but there was definitely snow like covering the fields…”. She did not recall whether she sounded the horn.

Photographs and dashcam footage

Dashcam footage, recorded by the second vehicle that collided with the claimant’s vehicle, is in evidence. I have watched the footage on multiple occasions, including at the assessment hearing. The footage commences at 10:25pm. It records that the vehicle was travelling at a speed of 31kmph when the footage commences. The speed then reduces to 27kmph when a light can be seen on the left of the roadway. The light appears to emanate from a mobile phone being waived by a pedestrian standing behind the claimant’s car. As the vehicle draws closer to the claimant’s vehicle the speed reduces to approximately 15kmph. It is at that speed there is a collision with the claimant’s vehicle. The claimant’s vehicle can be seen to move, or shunted, as a result of the collision. Prior to the collision, at approximately 10:25:51pm, the vehicle appears to start sliding on the roadway. It is apparent from the footage that it was windy and snowing, consistent with the description that the conditions were “blizzard like”.
The dashcam footage depicts snow on the side of the road, and some snow on the roadway. Both the claimant’s and Mrs L’Orange’s vehicles can been seen stationary on the left side of the road. The claimant’s vehicle appears to be parked to the far left of the road. The hazard lights on Mrs L’Orange’s vehicle can be clearly seen flashing.
A report from M & A Investigations dated 3 October 2019 contains three photographs of the accident scene that were taken after the second collision (photographs 3-5 in the report). Photograph 3 depicts the rear point of impact on the claimant’s car by the second vehicle. The rear righthand lights on the claimant’s car have been smashed. It is not apparent whether this occurred as a result of the first or second collision. Photograph 4 depicts Mrs L’Orange’s vehicle. Photograph 5 shows the claimant’s vehicle and a Landcruiser (the vehicle involved in the second collision). The Landcruiser is depicted where it came to rest after the collision. The rear left wheel of the Landcruiser is situated behind the rear right wheel of the claimant’s vehicle. The yellow fog line can be seen, partly obscured by snow.
A report from M & A Investigations dated 25 March 2022 contains photographs of the accident scene taken during daylight on 23 March 2022. Photograph 1 is an image taken looking west on the Alpine Way, Crackenback, approximately 10 metres east of the point of impact. The caption to the photograph states that the accident site is on a decline in the roadway and the camber of the road declines to the inside of the bend.
Photograph 2 depicts the Alpine Way looking west, approximately 25 metres east of the point of impact. Photograph 3 shows the Alpine Way approximately 50 metres east of the point of impact. Photograph 4 was taken looking west on the Alpine Way, approximately 75 metres east of the point of impact. Photograph 5 was taken approximately 100 metres east of the point of impact, and photograph 6 looks east on the Alpine Way approximately 25 metres west of the point of impact.

Photograph 7 is an image taken on the southern kerb of Alpine Way in the vicinity of the point of impact, depicting small debris.
Photograph 8 is an image taken looking from the northern side of the Alpine Way towards the accident site. Photograph 9 is described as an alternative image taken from the northern side of the Alpine Way towards the accident site.
Photograph 10 is an image depicting a chain bay and signage located approximately 1.7km east of the accident site. Photograph 11 shows signage stating “WHEN ICY REDUCE SPEED NEXT 300m”, located approximately 800 metres east of the accident site.
The report also contains a satellite image of the scene.

Diagrams

The report from M & A Investigations dated 25 March 2022 contains four electronic scale plans. The first plan depicts the configuration of the Alpine Way at the location of the accident, and includes the gutters, fog lines, and the edge of the bitumen.
The second plan includes a number of measurements. The distance from the gutter to the fog line in the claimant’s direction of travel is recorded as being 1.6 metres. No submission has been made that this measurement is inaccurate or should not be accepted for any other reason.
The third plan indicates where the various photographs referred to earlier were taken.
The fourth plan shows the location of the claimant’s stationary vehicle on the Alpine Way, together with an illustration of the trajectory of Mrs L’Orange’s vehicle.

Submissions

Insurer’s submissions

The insurer argues that the claimant voluntarily placed himself in a dangerous position on the roadway. In the insurer’s submission, the claimant parked over the fog line, just around a bend before the road straightens up, partially obstructing an active traffic lane, despite knowing that the conditions were difficult for driving. In doing so, he created an obstruction on the roadway for other road users. Further, the insurer submits that the claimant’s hazard lights were not on.
In the insurer’s submission, proceeding forward to a straight stretch of road, that was not also downhill, would have been the better place to stop.
The insurer submits that the claimant stopped in an area that was not permitted as his vehicle was not completely off the road, contrary to Rule 169 of the Road Rules 2014 that state “[a] driver must not stop at the side of a road marked with a continuous yellow edge line”.
In the insurer’s submission the claimant stopped in a place that was marked with a continuous yellow line, and that stopping where there is such a road marking may be unsafe. This is even more so, the insurer argues, given the prevailing conditions. The insurer’s case is that the collision occurred to the right of the fog line.
The insurer submits that the weather conditions had deteriorated such that a reasonable person in the claimant’s position would have stopped at the chain bay he passed on the Alpine Way.
The insurer also argues that the claimant placed himself in even greater danger, and contributed to his injuries, by getting out of his car when he did. In the insurer’s submission, once outside his vehicle, given there were no streetlights, the claimant ought to have seen some form of illumination coming from the headlights of Mrs L’Orange’s vehicle, even if his back was turned, and ought to have stepped off the roadway.
In the insurer’s submission, the claimant knew or ought to have known that his vehicle was partly positioned on the roadway, and knew or ought to have known that there was a risk another driver may lose control of their vehicle because of the conditions of the roadway, and that there was a risk of injury if he stood to the right rear of his vehicle.
In the insurer’s submission, the claimant should have either stayed in his vehicle or, if he were to get out of the vehicle, position himself away from the road. Further, it argues that had he waited for his sister, her vehicle, if parked behind his vehicle, would have created a more protective formation.
The insurer argued that Mrs L’Orange was driving carefully, was not driving too fast for the conditions, and was driving to the conditions. In the insurer’s submission, to sound a horn whilst she was confronted with her vehicle sliding on the road in the agony of the moment was not realistic.

Claimant’s submissions

The claimant’s case is that he did not fail to exercise reasonable skill and care, and that contributory negligence has not been established on the evidence.
The claimant submits that he stopped his vehicle when the weather conditions deteriorated and his car started to slide. In those circumstances, it was not safe for him to continue to drive, and it was reasonable for him to pull over when he did. He submits that when he pulled over he was in control of his vehicle.
The claimant rejects the submission that he voluntarily put himself in a position of danger by leaving his vehicle. He argues that he needed to get his snow boots and could not access the boot of the car by going around the left-hand side because the car was stopped up against an embankment. He argues that there was no obligation for him to stay in the car.
The claimant’s case is that his hazard lights were on, and that he was at the back of the car to the left of the fog line. He argues that Mrs L’Orange did not sound her horn, and that there was no reason why she shouldn’t have been able to steer her vehicle safely around him.
In the claimant’s submission, Mrs L’Orange knew that he was there, should have been able to see his lights, and gave no warning that she was approaching after her car started sliding towards him. In his submission, Mrs L’Orange should have been able to control her vehicle so that it remained in the marked traffic lane and did not cross over the fog line to the left of the lane. His primary submission, as recorded earlier, is that the contributory negligence allegation has not been made out. In the alternative, if a finding of contributory negligence is made, he argues that it should be “much less than 25%”.

Findings of fact

Agreed facts

The following facts are agreed between the parties:[1]
[1] Statement of agreed facts dated 1 September 2024.
(a)    the claimant was driving a Nissan Tida hatchback;
(b)    the claimant did not have snow chains in his vehicle;
(c)    once pulled over the claimant called his sister to bring snow chains;
(d)    the claimant was outside his vehicle when the accident occurred;
(e)    the claimant’s sister had not arrived by the time the accident occurred;
(f)    the claimant was a pedestrian at the time of the accident;
(g)    the claimant was standing behind his vehicle;
(h)    the headlights on Mrs L’Orange’s vehicle were activated;
(i)    Mrs L’Orange does not believe she applied the brakes prior to impact;
(j)    Mrs L’Orange did not see her car hit the claimant;
(k)    Mrs L’Orange was driving a BMW X5, and
(l)    another vehicle collided with the rear offside of the claimant’s vehicle shortly following the accident.
The facts agreed between the parties are supported by the evidence. I am satisfied that the agreed facts are established on the balance of probabilities and find accordingly.

Further factual findings

I accept the claimant’s evidence that there was no snow in Jindabyne, that the sky was “pretty clear”, and that there were no signs of “serious weather”.
I accept his evidence that when he passed a chain bay, located approximately 1.7km from where the accident occurred, there was a “bit of wind”, but no obvious signs of snow or ice on the road.
I also accept the claimant’s evidence that the weather started to change after he had been on the Alpine Way for “roughly” 10 minutes and had travelled 10-12km, and that there was a “fairly sudden” change in weather conditions as he started to ascend a hill on the Alpine Way.
I find that immediately after the claimant’s vehicle started to slide on the Alpine Way, he pulled over to the left side of the road, close to, but not flush with, the gutter.
I find that at the position where the claimant brought his vehicle to a stop the distance between the gutter and the fog line was 1.6 metres. I find that the width of the claimant’s vehicle was 1,695mm.[2]
[2] The claimant’s submissions dated 14 June 2024 at [17] refer to this measurement by reference to, and placing reliance on, >
I have considered the photographs of the accident scene taken on the night of the accident, in particular photograph 5 attached to the M & A Investigations report of 3 October 2019. I have reminded myself that care must be taken when using photographs which are tendered in evidence in factual inquiries: Taitoko v R [2020] NSWCCA 43 at [81]; Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72 at [42].
I am satisfied that photograph 5 shows the yellow unbroken fog line on the left hand side of the road. The photograph was taken after the second collision. That collision may have resulted in the position of the claimant’s vehicle moving from where he initially brought it to a stop. In this regard, I am satisfied that the dashcam footage shows the claimant’s vehicle being shunted as a result of the second collision. I am not satisfied that a finding about the precise position at which the claimant brought his vehicle to a stop can be made on the basis of photograph 5.
My findings that:
(a)    the claimant’s vehicle was not parked flush with the gutter;
(b)    the distance between the gutter and fog line was 1.6 metres, and
(c)    the width of the claimant’s vehicle was 1,695mm
support a finding on the balance of probabilities that the rear right wheel of the claimant’s vehicle was positioned partly on the yellow fog line and partly on the roadway.
I find that the claimant left the headlights and parking lights of his vehicle on when he stopped on the Alpine Way, and that these lights were on as Mrs L’Orange’s vehicle approached.
I am not satisfied on the balance of probabilities that the hazard lights on the claimant’s vehicle had been activated. While in oral evidence he said that he was “fairly certain” the hazard lights were on, the claimant did not refer to the hazard lights being on in either his statement dated 27 September 2019 or his subsequent statement of 4 June 2024. I consider it probable that if he had recalled activating his hazard lights, he would have said so in either or both statements.
I find that after bringing his vehicle to a stop in close proximity to the gutter, the claimant called his sister and asked her to bring chains. I find that he was at that time wearing sneakers. I accept his evidence that because the road was slippery, he concluded that he would not be able to put the chains on while wearing sneakers, and that he decided to retrieve the boots that were in the back of his vehicle.
I find that when the claimant proceeded to retrieve his boots he walked slowly to the back of his vehicle, and that he did not position himself at the left rear of his vehicle because of the slippery condition of the road.
While in oral evidence the claimant said that he was not standing in front of the lights, I prefer and give greater weight to the evidence given in his statement of 27 September 2019 that he “got to the back of the vehicle in front of the tail light and opened the boot”. I consider it probable that it was from this position that the claimant reached into the vehicle to retrieve his boots. I consider that his earlier statement in time is more reliable than his oral evidence about this matter; it was given just under two months after the accident.
I find that the claimant was standing at or about the position of the driver’s side tail lights, that he held on to the vehicle with his right hand, and reached for his boots, located to the left of the vehicle, with his left hand. I find that it was in this position the claimant was struck by the vehicle being driven by Mrs L’Orange. I accept the claimant’s evidence that he did not see or hear Mrs L’Orange’s vehicle before it struck him.
I find that when he reached into his vehicle the claimant’s right foot was positioned on or about the yellow fog line. I am not persuaded that he “stuck his right leg out” as he was reaching into the vehicle.
I find that Mrs L’Orange, like the claimant, had travelled on the Alpine Way on occasions prior to the accident. I find that she was travelling at a speed of 20 to 30kmph when her vehicle started to slide on the road. I accept her evidence that as she proceeded over a hill, and as the road began to decline, her vehicle started sliding to the left, and that she lost control of the steering. I find that she did not apply the brakes at any time after her vehicle started sliding on the road.
I find that Mrs L’Orange saw the claimant standing near the back right corner of his vehicle prior to colliding with him, and that she attempted to steer her vehicle away from him. I find that Mrs L’Orange’s vehicle slid into the claimant, impacting with his right leg. Her vehicle then impacted with the back corner of the claimant’s vehicle, and continued to slide along the side of the vehicle. I find that Mrs L’Orange did not immediately know that she had hit the claimant, and that she first became aware when one of her sons told her.
Mrs L’Orange did not recall whether she sounded her horn as her vehicle approached the claimant. His evidence was that he did not hear a horn sounded. I find that it is more probable than not that Mrs L’Orange did not sound her horn when her vehicle started sliding on the road and approached the position where the claimant was standing. I also find that she did not flash her lights or give the claimant any warning of her approach.
I find that 10 to 15 minutes after Mrs L’Orange’s vehicle collided with the claimant, a second vehicle lost control at a similar location on the road and collided with the claimant’s vehicle. The dashcam footage from this vehicle, to which reference has earlier been made, depicts the events leading up to this collision, including the weather conditions, the position of the claimant’s vehicle, the loss of control, and the collision.

Findings – contributory negligence

The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by s 4.17: s 4.17(1) MAI Act.
Section 4.17(2) is not engaged on the facts. The damages recoverable in respect of a motor accident are to be reduced on account of contributory negligence by such percentage as the Commission thinks just and equitable in the circumstances of the case: s 4.17(3) MAI Act.
Section 4.17(1) is in the same terms as s 138(1) of the Motor Accidents Compensation Act 1999 (MAC Act). For this reason, authorities addressing s 138(1) are relevant.
The onus of establishing the elements of contributory negligence, including causation, is on the insurer: Verryt v Schoupp [2015] NSWCA 128 Meagher JA (Gleeson JA and Sackville AJA agreeing) at [26].
The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965, s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 4.17(2) and (3) of the MAI Act vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility: Davis v Swift [2014] NSWCA 458 (Davis), Meagher JA (Leeming JA agreeing) at [23].
As the case does not involve a finding of contributory negligence made under s 4.17(2), an assessment of what is “just and equitable in the circumstances of the case” will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494 (Podrebersek): Davis at [28].
Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury: Davis at [29].
I am not persuaded that the exercise of reasonable care required the claimant to stop at the chain bay located approximately 1.7km prior to the point at which he ultimately brought his vehicle to a stop. I have accepted his evidence that there were no obvious signs of snow or ice on the road at the time he passed the chain bay. The evidence does not support a finding, on the balance of probabilities, that the roadway had been slippery at any time prior to the claimant first noticing his vehicle starting to slide.

I have accepted the claimant’s evidence that the weather started to change after he had been on the Alpine Way for “roughly” 10 minutes and had travelled 10-12km, and that there was a “fairly sudden” change in weather conditions as he started to ascend a hill on the Alpine Way. The change in weather conditions occurred after he had passed the chain bay.
I am not satisfied that the exercise of reasonable care required the claimant to continue to drive his vehicle further down the roadway before bringing it to a stop. The weather conditions had changed. The claimant’s vehicle had started to slide on the roadway. His decision to bring his vehicle to a stop immediately after it started sliding was reasonable in the circumstances, and consistent with his obligation to take reasonable care. Had he proceeded further along the road there was a real risk that he would lose control of his vehicle. The subsequent loss of control by Mrs L’Orange and the driver of the Landcruiser shows that the risk was real.
Even if I were to accept the insurer’s submission that in bringing his vehicle to a stop where he did the claimant was in breach of Rule 169 of the Road Rules, the determination of what reasonable care requires in a given case is not resolved by asking whether the omission is, or is not, prohibited by the Road Rules: Kollas v Scurrah [2008] NSWCA 17 at [76]. Given the dangerous circumstances in which he found himself, the claimant’s decision to stop where he did does not constitute a failure on his part to exercise reasonable skill and care.
I find that the claimant knew or ought to have known that he had parked his vehicle on or about the yellow fog line. He knew that the road was slippery, and that his car had started to slide on the road due to the presence of ice. He knew that it was night time and that weather conditions had deteriorated. He knew or ought to have known that driver visibility was likely to have been reduced as a consequence. He knew or ought to have known that it was possible other vehicles travelling behind him would also slide in or about the same location and that the drivers of those vehicles may lose control. He knew or ought to have known that it was dangerous for a pedestrian to stand on or near the roadway, particularly given the prevailing circumstances. He knew or ought to have known that his vehicle was positioned just around a bend, before the road straightens up, and that as a result the ability of drivers traveling behind him to see both him and his vehicle would have been limited.
I have found that the claimant did not activate the hazard lights on his vehicle. I find that a reasonable person in his position would have activated the hazard lights. This would have given Mrs L’Orange earlier notice of his presence on the roadway, and allowed her to respond earlier.
He knew or ought to have known that if a vehicle lost control and collided with his vehicle the collision would occur at the rear of the vehicle. I find that a reasonable person in the claimant’s position, who knew or ought to have known the matters to which I have referred, would not have stood at the rear right hand side of their vehicle proximate to the roadway.

I find that the claimant’s act of standing to the rear right hand side of his vehicle was a failure by him to exercise reasonable care for his own safety, and that his failure to exercise reasonable care was a cause of the damage he suffered.
The insurer has admitted liability for the claim. Implicit in this admission is that Mrs L’Orange failed to exercise reasonable skill and care in the driving of her vehicle.
Contributory negligence is determined on the basis of what is just and equitable in the circumstances of the case: s 4.17(3) MAI Act. This involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable person and of the relative importance of the acts of the parties in causing the accident. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek.
I have found that prior to her vehicle starting to slide on the road, Mrs L’Orange was travelling at a speed of between 20-30kmph. Given the prevailing conditions I find that the exercise of reasonable care required Mrs L’Orange to travel at a speed of no more than 15kmph, similar to the speed at which the claimant was travelling before his vehicle started to slide on the road. Mrs L’Orange was aware of the claimant’s presence on the road way, and that she had lost control of her vehicle. She took no steps to alert the claimant that her vehicle, that was out of control, was approaching him. She did not sound her horn, or flash her lights. The exercise of reasonable care required Mrs L’Orange to do either or both. She knew or ought to have known that if her vehicle, a large four wheel drive, continued to run out of control there was a risk it would hit the claimant.
Having made a comparison both of culpability and the relative importance of the acts of the claimant and Mrs L’Orange in causing the accident, I find that it is just and equitable in the circumstances to reduce the claimant’s damages by 20% to reflect his contributory negligence.

ASSESSMENT OF DAMAGES

Injury findings

I am satisfied, and the parties agree, that as a result of the accident the claimant suffered the following injuries:
(a)    crush injury – Morel-Lavallee lesion right thigh and knee;
(b)    crush injury – right patella fracture (lower pole);
(c)    crush injury – restricted motion of right ankle and hindfoot;
(d)    nerve damage (saphenous nerve), causing lower limb numbness;
(e)    scarring of the right knee, right shin, and
(f)    post-traumatic stress disorder.
The parties agree, and I find, that the post-traumatic stress disorder is in remission. However, I find that the condition has not resolved, and that the claimant continues to experience post-traumatic symptoms.

Loss of capacity

The insurer does not dispute that, as a result of his accident caused injuries, the claimant has a loss of capacity to earn. The insurer does, however, dispute that the loss of capacity is productive of financial loss.
The claimant’s case is that as a result of his accident caused injuries and consequential incapacity, he can only work 30 hours a week, and earn $1,200 net a week. He relies on the opinion of Dr Poplowski, orthopaedic surgeon, Dr Ting, vocational assessor, and his own evidence with respect to the limitations he experiences as a consequence of his injuries.
The claimant argues that his injuries prevent him from working longer hours, and from commuting to Sydney, thereby foregoing the associated increase in income a position in Sydney would attract. He argues that he therefore has restrictions with respect to the companies he can work for and the hours he can work. He submits that as a result of his significant sitting and standing limitations, he has had to employ staff in his company to take on a share of the workload which he otherwise would have been able to perform himself.
At the time of the accident the claimant was employed by Drool. His job description was “General Manager-Digital”. I accept the claimant’s evidence that his work at Drool involved him predominantly sitting at a desk. I also accept his evidence that he would work long days, from 7.30am to 6.00pm. He also needed to be able to concentrate and sustain focus for long periods.
I accept the claimant’s evidence that since the accident he has struggled to work long periods at a time at a desk due to pain and discomfort in his right knee. I also accept his evidence that:
(a)    following the accident he has suffered ongoing debilitating pain in his right leg;
(b)    swelling in his right leg has made it difficult to stand and walk for prolonged periods;
(c)    the pain in his right leg requires daily consumption of pain relieving medication;
(d)    he experiences pain while walking for prolonged periods, which occasionally causes his right calf and hamstring to cramp, and restricts movement;
(e)    he experiences pain in his right leg when sitting for long periods, and avoids doing so for that reason;
(f)    the scarring on his right leg is painful, sensitive, and itchy;
(g)    he has experienced problems with his sleep due to pain and discomfort in his right leg;
(h)    increased activity results in his right leg becoming more painful;
(i)    he has difficulty sitting for more than approximately six hours in total on any particular day due to pain and discomfort in his right leg;
(j)    after 30-50 minutes sitting down his right leg becomes sore, and
(k)    if he does not alternate between sitting and standing every 30-50 minutes his right leg becomes very painful and the pain affects his focus.
I also accept the claimant’s evidence that he is incredibly uncomfortable when he travels by train or car as a result of pain in his right leg.
The claimant’s evidence was that post-accident he has on occasion worked eight or nine hours in a day, and on weekends. He agreed that there had been a couple of weeks since the accident in which he has worked in excess of 37.5-40 hours. His estimate was that in the last six months he has worked “full-time hours” on less than half a dozen occasions. His evidence was that on the occasions he has worked for more than six hours in one day he has been in a lot of pain, and has had to compensate by either working shorter hours in the days that follow or taking a rest day. I accept his evidence about these matters.
The claimant gave evidence that his right leg swells, and the associated pain affects his sleep. He also gave evidence that when working the pain in his right leg affects his focus, such that he is unable to focus on the task he is working on.
Neither Medical Assessor Home, Dr Poplawski, nor Dr Keller suggested that the limitations the claimant reported to them where not genuine, or were inconsistent with his accident caused physical injuries. Indeed, each of these doctors appears to have accepted the claimant’s reported symptoms, limitations, and disabilities. Dr Poplawski thought that the claimant was restricted to four to six hours work a day as a result of his physical injuries and consequent difficulty concentrating on the job. I accept the doctor’s evidence in this regard. Dr Rastogi, psychiatrist, also expressed the opinion that the claimant was limited in the hours he could work due to pain and concentration difficulties.
The claimant’s general practitioner, Dr Lenahan, has, since 9 April 2020, certified him as being fit for some work 6.5 hours a day five days a week. The certificates record that the claimant experiences limitations associated with sitting and standing.
Dr Ting recorded that the claimant needed to take brakes every half an hour from sitting and standing, and that this disrupted his focus and concentration. The claimant also reported having difficulty maintaining concentration during creative activities or when completing “mop up” tasks.
In Dr Ting’s opinion, the claimant is limited by the restricted active ranges of movement of his right knee, his reduced right leg function, postural tolerance sitting and standing, and physical stamina. I accept his opinion about these matters. I also accept his opinion that the claimant’s reported deficiencies concentrating adversely affect his occupational performance, diminish his ability to sustain employment, and that he no longer has the physical capacity to fully perform his pre-accident duties.
I accept the claimant’s evidence that he struggles managing stress, becomes frustrated, suffers from ongoing flashbacks and nightmares and related symptoms, and has angry outbursts. These are all symptoms associated with the post-traumatic stress disorder caused by the accident. The symptoms persist. I also accept, as reported by Dr Rastogi, that the claimant becomes distracted due to pain, and that pain limited his concentration and ability to perform tasks.
Dr Keller expressed the opinion that the claimant has the physical capacity to work eight hours a day five days a week in a light or sedentary role, including his role at Drool and in his current work. In his opinion, it was reasonable that his right knee injury would restrict him from roles that require extensive standing, walking or heavy lifting.
I do not accept Dr Keller’s opinion that the claimant could work five days a week, eight hours a day in his pre-accident employment at Drool, in his current work, or in similar roles. I have accepted the claimant’s evidence with respect to the symptoms and limitations he experiences as a result of his right leg injuries, including limitations sitting and standing. Further, the symptoms and limitations experienced by the claimant include pain and a loss of concentration, that have, and will continue to, adversely impact his work capacity.
Professor Bright, psychologist, provided a vocational assessment report to the insurer. As recorded on the penultimate page of the report, the assessment was undertaken from a “psychological perspective”. The author acknowledged that evaluation of the claimant’s self-reported limitations was beyond his area of expertise. The report references the following note recorded by the claimant’s treating psychologist on 1 March 2022:
“…also an extended working period with no weekend. SH ended up in pain for the whole of the week”.
Reference was also made by Professor Bright to notes that record the claimant was not following his own rules in relation to work life balance (22 April 2022), and that he had been working very long hours an needed to reestablish better brake routines and habits (15 April 2023). Later in the report, Professor Bright again made reference to the claimant working long hours, and recorded that this caused him pain and resulted in him taking time off.
Professor Bright’s report contains descriptions of the duties involved in work as a web designer, digital designer, and graphic designer. I have taken those job descriptions into consideration. I have also taken into consideration the test results discussed in the report.
Professor Bright recorded that the claimant reported ongoing problems with pain management, together with problems managing his frustration and stress associated with his physical limitations. Professor Bright’s report records that these problems arise from the accident. He also records that the claimant continued to be reliant on significant amounts of pain killing medication.
The claimant was described as an intelligent and personable individual who has significant transferable skills. In Professor Bright’s opinion, “it would not take much to increase [from six hours a day five days a week] to a full-time load”, and that when administrative tasks are taken into account, he may well be working full-time already.
Professor Bright also prepared a “job match report”. The report contains information about the duties performed, and income earned, by web designers, digital designers, graphic designers, website editors, marketing consultants, and business development managers.
While I am satisfied that the claimant sometimes works more than 6.5 hours a day, and on occasion more than 38 hours in a week, including weekend work, I find that when he does so he will “pay for it” in the days that follow, and that as a result he will work shorter days or take days off.
I am satisfied on the evidence before me that as a result of his accident caused injuries, the claimant does not have the capacity to work full-time in his pre-accident role at Drool. Nor does he have the capacity to work full-time as a graphic/digital designer. The claimant has established that he has a loss of capacity to earn due to the combined effect of his injuries, including his physical limitations, pain, problems with concentration, disturbed sleep, and irritability. I find that the claimant is likely to suffer a loss of capacity to earn for the rest of his working life.

Non-economic loss

The claimant is entitled to an award for non-economic loss. This head of damages compensates him for pain and suffering, loss of amenities of life, and disfigurement: s 1.4 of the MAI Act. The current maximum amount of damages for non-economic loss is $654,000: s 4.13 as adjusted by cl 5 Motor Accident Injuries (Indexation) Order (No 2) 2024.
Once the s 4.11 threshold of 10% impairment is passed, damages for economic loss are assessed without statutory constraint, save that no more than the maximum declared by s 4.13 may be awarded: Hodgson v Crane (2002) 55 NSWLR 199; 36 MVR 551; [2002] NSWCA 276 at [39] per Heydon JA (Sheller JA and Davies AJA agreeing).
The absence of any “statutory constraint” requires the Commission to adopt the common law’s methodology for the assessment of damages for non-economic loss: RACQ InsuranceLtd v Motor Accidents Authority (NSW) and Others (No 2) [2014] NSWSC 1126 (RACQ) at [25]. The maximum has no bearing on the amount proportionate to the claimant’s injury; it simply caps what may be awarded: RACQ at [30].
The claimant argues that as a result of the accident he suffered significant and permanent physical injuries. He submits that the following factors are relevant to the award made for this head:
(a)    his age, life expectancy (48 years) and that it is likely he will continue to experience significant physical symptoms;
(b)    the significant impact on his recreational activities, including snowboarding;
(c)    that he has two young children and is unable to pass on his lifetime passion of snowboarding to them in the way he had hoped;
(d)    the restriction on his work capacity and the attendant financial consequences;
(e)    that the accident has affected him psychologically and that he sustained significant physical injuries which continue to cause him pain and restrict his ability to participate in his pre-accident lifestyle;
(f)    he is self-conscious about his scars, which are discoloured and sensitive to touch. He is not able to wear trousers due to sensitivity on his right knee and right leg, and
(g)    he is unable to attend to the gardening and heavy domestic work at home.
The claimant relies on Medical Assessor Home’s findings with respect to his physical injuries, and Dr Rastogi’s findings with respect to his psychological injury. He submits that an award in the sum of $350,000 should be made for this head of damages.
In its written submissions dated 25 August 2022 the insurer argued that no award should be made. Those submissions pre-dated Medical Assessor Home’s certificate dated 24 July 2023. In its written submissions dated 1 August 2024 the insurer argued that the award for this head should be $250,000.

Award

As a result of the accident the claimant suffered significant injuries to his right leg, including scarring, together with psychological injury. While his psychological injury is in remission, symptoms persist.
The claimant was transported by ambulance from the accident scene to Cooma Hospital. He was then transferred to Canberra Hospital, where he underwent surgery. He was discharged on 12 August 2019. The claimant subsequently underwent rehabilitation, has received psychological counselling, and continues to see his general practitioner, Dr Lenahan.
I accept the claimant’s evidence with respect to the symptoms and limitations he experiences as a result of his right leg injuries, and to which reference has earlier been made in these reasons. I accept his evidence that he is self-conscious about the scars on his right leg; they are discoloured and have been the subject of unwanted attention and comments whilst wearing shorts in public. I also accept that he has developed cellulitis on a number of occasions, and he has been prescribed antibiotics to treat that condition.
I accept the claimant’s evidence that because of pain and restriction in the movement of his right leg he struggles to remove and replace his shoes, and that he now sits down to put on his trousers. He also experiences low mood and stress, and has seen a psychologist to address these issues.
The claimant gave evidence that he has skied since he was three years old. He commenced snowboarding in his youth. Once he began, he was snowboarding “pretty much every weekend” from opening to close during the season. His hope was that he would continue doing so. The claimant can no longer engage in snowboarding as he did prior to the accident; his evidence was that he was now only able to snowboard for half an hour. He has not been able to race since the accident. His evidence was that he cannot physically teach his children snowboarding because of his injuries. He said that it was devastating to him that he was not able to pass his passion on to his children. This is a particular loss to him as snowboarding had been his passion for many years prior to the accident, having grown up snowboarding with his father, and was his only hobby.
I have taken into consideration the symptoms reported by the claimant to Medical Assessor Home, and the Medical Assessor’s findings on examination, including findings with respect to crepitus in the right knee, scarring on the claimant’s right leg, and the restriction of motion in his right ankle and hindfoot. As recorded by Medical Assessor Home, the claimant’s recovery was complicated by a Morel-Lavallee haematoma at the medial aspect of the distal right thigh and knee. Further, there is residual enlargement of the distal right thigh and proximal right leg.
Dr Poplawski, orthopaedic surgeon, recorded that the claimant experienced cramps and pain in his right leg, that he has limitations with respect to sitting and kneeling, and that he experienced difficulty removing and replacing his shoes, socks and trousers, and lawn mowing. The doctor noted that on examination the claimant’s right leg was swollen, particularly around the knee and calf.
Dr Keller, occupational physician, recorded in his report that the claimant presented in a forthright manner without signs of embellishment. The doctor’s observations in this regard are consistent with the impression I formed of him while giving oral evidence at the assessment. Dr Keller recorded that the claimant’s “self-stated” capacities include sitting for 30-60 minutes, standing for 25 minutes, walking for 60 minutes and driving for up to 60 minutes. The doctor recorded complaints of constant right knee pain that is aggravated by prolonged standing or walking.
I have considered the photographs that depict the scarring to the claimant’s right leg, and the opinion of Dr Lai, plastic and reconstructive surgeon. The doctor recorded that the claimant was very conscious of the scarring because he would often receive comments when he was in public. He experienced an itchy sensation all over the scar region, with loss of feeling and paraesthesia, and also occasionally felt a tearing sensation underneath the scar. I have considered the doctors findings on examination, that include a description of the scarring, together with measurements.
I have considered the impact that the accident caused post-traumatic stress disorder has had on the claimant. While the condition is in remission, symptoms persist. In this regard, Dr Rastogi recorded that the claimant struggled managing stress, is very frustrated, suffers from ongoing flashbacks and nightmares, was triggered by thoughts, visions, and replays of the accident, and reported angry outbursts, irritability and feeling displaced. She also recorded the claimant becomes distracted due to pain, and that pain limited his concentration and ability to perform tasks.

For the foregoing reasons, I have determined that the appropriate award for this head is $320,000.

Economic loss

If an injured person’s pursuit of gainful employment is interrupted or affected because of the negligent infliction of injury, they are to be compensated by an amount that reflects the financial consequences that follow from the impairment.[3]
[3] Husher v Husher (1999) 197 CLR 138; [1999] HCA 47 (Husher) at [6].
Damages for past and future economic loss are allowed to an injured person because the diminution of their earning capacity is or may be productive of financial loss. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the injured person in the same position as they would have been in if injury had not been sustained.[4]
[4] Husher at [7].
What earning capacity has been impaired or lost and what financial loss is occasioned by that impairment or loss must be identified[5]. What the injured person has lost are the financial rewards from work that are rewards they would have been able to direct to whatever purpose or destination they chose.[6]
[5] Husher at [17].
[6] Husher at [18].
At [23] the plurality in Husher held that:
“[23] Deciding what value is to be ascribed to the loss of future earning capacity of an injured plaintiff requires close attention to the facts of each case… the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal. Only when those inquiries are pursued can a judgment be made about what capital sum to allow as damages for the impairment of the plaintiff's earning capacity. In doing so, regard must be had, of course, to all those contingencies of life that might reasonably be expected to affect the course of events in the future.”
Section 4.7 of the MAI Act must be addressed when assessing future economic loss, even in cases where a buffer is awarded.[7] The section is in the following terms:
“4.7 Future economic loss—claimant’s prospects and adjustments
(1) Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
[7] Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281 at [30] per Barrett JA.
The claimant must prove the extent of his pre-accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and the extent to which the compensable injuries have diminished his ability to exercise the pre-accident earning capacity.[8]
[8] Morvatjou v Moradkhani [2013] NSWCA 157 McColl JA (Hoeben JA and Tobias AJA agreeing) at [54].

Past Economic loss - submissions

The parties agree, and I find, that the claimant’s pre-accident net weekly earnings as an employed Graphic Designer were $1,376 a week. It is also agreed, and I find, that the claimant’s net hourly earnings were $36.[9]
[9] $1,376 / 38 = $36.
For the period 10 August 2019 to 30 June 2020 the claimant was working at a reduced capacity, but continued to receive his pre-injury earnings from his employer. He does not press a claim for this period.
For the period 1 July 2020 to 28 March 2021 the claimant’s case is that he was earning an average of $994 net per week. The difference between his pre-accident earnings and his actual earnings is claimed for this period, a total sum of $14,898,[10] not $14,516 as recorded in the claimant’s submissions.
[10] $1,376 - $994 = $382 x 39 weeks = $14,898.
The insurer argues that the claimant was receiving Jobkeeper payments during this period, and that any loss of income cannot be related to the accident and is not compensable.
Further, in the insurer’s submission, the claimant’s employment at Drool was in jeopardy because of a slowdown in trade and a dispute between the directors of Drool. The insurer submits that the accident was irrelevant to the claimant’s loss of employment at Drool. The insurer points to the email from Dr Chris Brown of Drool by Dr Chris Brown Pty Ltd, dated 9 January 2024, in which Dr Brown wrote:
“With the arrival of the Covid pandemic and the financial implications on the business, Scott was transitioned to Job Keeper. The lack of trade during this period meant that once the Job Keeper payments ended, Scott’s employment was not continued.”
In the insurer’s submission, the claimant would have had to seek alternate employment notwithstanding the accident. The insurer argues that the claimant is working as he otherwise would have, and that he is not working the reduced hours he reports. In this regard, the insurer refers to Professor Bright’s reference to notes recorded by the claimant’s psychologist on 15 April 2023 that have been set out earlier in these reasons. Finally, the insurer relies on the opinion of Mr Kahler, a forensic accountant, as set out in his report of 6 May 2024.
For the period 29 March 2021 to 30 June 2021 the sum of $2,288 is claimed
($1,376 - $1,200 = $176 x 13 weeks = $2,288).
The claimant seeks an award from 1 July 2021 to 11 September 2024 in the amount of $81,329 ($487 x 167 weeks = $81,329) on the basis that:
(a)    if he continued to work as a graphic designer in paid employment, as opposed to self-employment, he would have been earning an annual salary of at least $145,000 ($1,687 net a week);
(b)    from 1 July 2021 to date his earnings derived from We Think Digital are $1,200 net per week, and
(c)    the difference between what he could have earned as a graphic designer ($1,687 net a week) and his actual earnings ($1,200 net a week) is $487.
The claimant also seeks an award of $13,739 for loss of superannuation (calculated at 14% of past economic loss in the amount of $98,133).
In the insurer’s submission, whilst it was possible the claimant might have been able to secure work as a graphic designer earning $145,000 a year, as a matter of fact, he started building his own business whilst still working at Drool in the context of the Covid-19 Pandemic and concerns that he would lose his job, and incorporated his business before his concerns were in fact realised. The insurer contends that a finding that the claimant would have secured a role as a graphic designer earning at least $145,000 a year is not available on the evidence.
The insurer submits that if an award is made, it should be limited to the period up to 31 December 2022, and that no award should be made after that time.

Past economic loss – award

No claim is made for the period 10 August 2019 to 30 June 2020. While the claimant suffered a loss of capacity to earn, there was no financial loss. I make no award for this period.
The parties agree that since 9 April 2020 the claimant has been certified by his general practitioner as having capacity for some type of work 6.5 hours a day five days a week. The certification is generally consistent with my assessment of his work capacity. I find that from 9 April 2020 to date the claimant’s capacity to earn has been limited to an average of 6.5 hours a day, or 32.5 hours a week, as a result of his accident caused injuries.
Although I am satisfied the claimant had a loss of capacity to earn during the period 1 July 2020 to 28 March 2021, I am not persuaded that the loss of capacity was productive of financial loss. The claimant continued to be employed by Drool until 28 March 2021. He was transitioned to Jobkeeper payments during the Covid lockdown. It was for this reason his earnings reduced. His loss of earnings was not a result of his accident caused injuries and disabilities or the consequential loss of capacity to earn. But for the accident, the claimant would have suffered the same loss in earnings. I make no award for this period.
For the period 29 March 2021 to 30 June 2021 the claimant seeks an award in the sum of $2,288, on the basis that his loss of capacity resulted in a financial loss of $176 a week.[11] The claimant’s employment at Drool came to an end on or about 28 March 2021. Prior to the accident the claimant undertook freelance work from time to time, operating under different trading names. On 4 December 2020 “We Think Digital” was registered as a proprietary company. The claimant has used the company as a vehicle to conduct his graphic and digital design business.
[11] $1,376 - $1,200 = $176.
The claimant’s employment at Drool came to an end as a result of a slowdown in trade associated with Covid 19, and a dispute between the directors of Drool. This would have come to pass whether or not the accident occurred. I am satisfied, on the balance of probabilities, that but for the accident, the claimant would have had to find alternative employment from 29 March 2021. I consider it probable that he would have secured employment, as opposed to starting his own company, and that he would have earned a salary equivalent to his pre-accident salary at Drool. He had a good work history, having been in continual employment since March 2008, following the completion of an Advanced Diploma. He is experienced, has relevant qualifications, and would be an attractive candidate to prospective employers.
I accept the claimant’s evidence that prior to the accident he was planning to continue to work at Drool. I also accept his evidence that there are limited job opportunities in Wollongong that align with his skill set, and that most jobs of this nature are based in Sydney. I find that the claimant’s right leg injuries give rise to limitations with respect to commuting. While he can undertake limited travel related to attendance at a Sydney based client, he would not be able to commute daily from Wollongong to Sydney as a consequence of the pain and discomfort this would cause in his right leg.
I accept the claimant’s evidence that he decided to build his own business, rather than find work as an employee, because working for himself provided him the flexibility with work hours required as a result of his accident caused injuries, in particular his right leg pain. His evidence, that I accept, was that while he had undertaken some freelance work before the accident, he did not intend to start a business. He did so following the accident to secure a source of income to support his family. Further, the difficulties he experiences in relation to travel also played a role in his decision to start his own business.
I accept, for the reasons given in his report, Mr Kahler’s estimation that the claimant’s earnings for the year ending 30 June 2022 approximated $88,000 before tax. There is a clear loss when compared to the claimant’s pre-accident earnings.
I find that the appropriate measure of the claimant’s loss of capacity to earn income for the period 29 March 2021 to 30 June 2021 is the claimed sum of $2,288.[12]
[12] 13 x $176.
The claimant’s actual earnings are relevant to, but not determinative of, whether he is entitled to an award for economic loss or the quantum of that award. For this reason, I do not accept Mr Kahler’s assessment of the claimant’s economic loss during this period. It follows that I do not accept the insurer’s submissions with respect to the award that should be made.
I find that the claimant’s capacity to earn during the period 1 July 2021 to 11 September 2024 has on average been 32.5 hours a week, and that but for the accident he would have worked on average 38 hours a week. During this period his capacity has been reduced on average by 5.5 hours a week as a result of his accident caused injuries. I find that the hourly loss should be valued by reference to his pre-accident earnings of $1,376 a week, or $36 an hour, and that the appropriate measure of his loss is $198 a week. I award the sum of $33,066 for this period.[13]
[13] 5.5 x $36 = $198 x 167 = $33,066.
The total award for past economic loss is $35,354.
I allow past superannuation in the sum of $4,950 representing 14% of the award for past economic loss.

Section 4.5(1)(d) damages

As recorded earlier, the claimant did not receive any payments of statutory weekly benefits from the insurer. Accordingly, there was no income tax paid or payable on statutory benefits. No award is sought or made for s 4.5(1)(d) damages.

Future economic loss – the claimant’s case

In his written submissions dated 14 June 2024, the claimant argued that an award in the amount of $565,263 should be made on the basis that:
(a)    he would have continued working for Drool or a similar marketing company full-time in Sydney and would now be earning $145,000 gross per year, or $1,987 net per week;
(b)    his tax returns, together with the letter from his accountant dated 9 October 2023, are the most accurate in determining his current earnings;
(c)    his current weekly earnings are $1,200 net per week;
(d)    he is suffering a loss of $787 net per week (the difference between $1,987 and $1,200 net per week), and
(e)    he is 35 years old and has a further 32 years left in the workforce.[14]
[14] He has subsequently turned 36 and therefor has a further 31 years left in the workforce.
In the claimant’s submission, utilising a rate of 14%, the award for loss of superannuation should be $79,137.
Following the assessment, the claimant sought leave to rely on further written submissions with respect to future economic loss dated 20 September 2024. On 3 October 2024 the parties were informed that the claimant had been given leave to rely on those submissions. While given an opportunity to do so, the insurer did not provide submissions in reply.
Leave to rely on the further submissions was granted in circumstances where:
(a)    the insurer was given an opportunity to respond to the submissions;
(b)    in its submissions dated 2 October 2024 the insurer argued that “in any event…the changing of the economic loss claim does not address deficiencies in the evidence”;
(c)    the submissions are underpinned by evidence that was before the Commission at the assessment conference, and
(d)    allowing the claimant to run his alternative economic loss claim will enable the Commission to determine the real issues in dispute.
The claimant’s alternative case, as articulated in his 20 September 2024 submissions, is that:
(a)    the earnings of a graphic designer in paid employment (as opposed to self-employment) provide a base line for his potential future earnings but for the accident;
(b)    he is earning more per hour worked in self-employment compared to paid employment;
(c)    he should be compensated for the reduction in his capacity to earn, which is a loss of at least two hours per day;
(d)    but for the significant crush injury to his leg sustained in the accident he would be able to work eight hours plus per day in his business, and would therefore have capacity to work at least an additional two hours plus per day;
(e)    he is only working at 75% capacity (six of eight hours) and is entitled to be compensated for the loss of capacity to work the extra two hours plus per day;
(f)    an annual salary of $160,000 (as calculated by Mr Kahler) equates to $115,733 net or $2,225 net per week ($74 an hour);
(g)    his loss is $740 net a week, and
(h)    there should be an award in the sum of $531,505
(10 hours per week x $74 = $740 x 845 less 15%).
The claimant argues that the award is supported by:
(a)    his oral evidence that prior to the accident he was able to sit at a computer and work for 9 or 10 hours per day, the injuries sustained in the accident limit his ability to sit at a computer to six hours per day, and that on the occasions he has been required to work longer than six hours per day, he “pays for it” over the next few days with disruptions to his sleep, a need to take increased pain relief and a need to work shorter days;
(b)    the certificates of capacity certifying him fit for 6 hours per day with restrictions,[15] and
(c)    the opinions of Dr Poplawski and Dr Ting.
[15] The certificates certify him fit to work 6.5 hours a day not six hours a day.
It is conceded that if the claimant is compensated on the basis that his future loss is a loss of capacity in self-employment, there can be no claim for loss of superannuation. In the event that an award is made on the basis of continuing paid employment the claimant seeks an allowance for loss of superannuation at 14%.

Future economic loss – the insurer’s case

The thrust of the insurer’s case is that any loss of capacity the claimant has is not productive of financial loss and, that being the case, no award should be made.
In its written submissions dated 1 August 2024, the insurer submits that the claimant’s most likely future circumstances were to continue in his sedentary work, in line with his pre and post-accident employment, which he is fit to perform “according to” Dr Keller, Dr Lai, Professor Bright, Dr Ting and Dr Rastogi.
The insurer submits the claimant’s alleged accident-related restrictions, if any, are temporary and would have no additional impact on his ability to work. The insurer submits the accident made little difference to the claimant’s functional ability in the context of his business. The insurer relies on the report of Mr Kahler and submits that no award should be made.
In oral submissions at the assessment the insurer confirmed its case that the claimant’s loss of capacity did not give rise to a financial loss, and that he is now earning more than he did pre-accident.
In its written submissions dated 2 October 2024 the insurer argues the claimant’s submission that “[a]s a young man he didn’t know his future with certainty” represents an “about-turn” with respect to the manner in which his claim was prepared and prosecuted, and is incompatible with the claimant’s evidence.
In the insurer’s submission there is no credible evidence that the claimant has a loss of capacity in the order of two hours a day in the context of operating his business. The insurer argues the evidence does not establish that:
(a) the claimant has been working six hours a day in accordance with the certificates of capacity, and
(b) the claimant has lost work or had to turn business away due to an alleged reduced capacity to work; and his business has lost money on account of his purported reduced capacity.
The insurer argues that in neither of his statements or in his oral evidence did the claimant suggest his business had suffered on account of his injuries. The insurer points to paragraph 44 of the claimant’s statement of 4 June 2024 where he states that he is “very worried” that he will have to close his business and that he will have no income. The insurer argues that when this issue was explored at the hearing, it transpired that this was a reference to a slowdown in trade at the end of 2023 for reasons unrelated to the accident.
The insurer submits that the claimant’s business had “recovered strongly”, and that evidence suggests that by the time the statement was signed the claimant’s business was enjoying a significant period of growth. The insurer also notes that although his statement records he was concerned he would have to close his business, he was in fact taking on more staff.
The insurer refers to the claimant’s evidence that one day a month he drove to a client’s premises in Marrickville, spent six hours on-site and then drove home, in addition to his usual work. It argues that in his statement dated 4 June 2024 the claimant did not disclose working with this client, but instead said the following:
“I do not believe I could work more than 6 hours per day, 5 days per week. On the odd occasions where I’ve had to do more than 6 hours in one day, I have been in a lot of pain. I had to use more pain killers and had difficulty sleeping. It ended up putting me backwards for a few days after. I was unable to do my usual 6 hours for the next few days.”

The insurer contends that this is inconsistent with the claimant committing to work at a client’s site in Marrickville once a month for six hours, including travel that would amount to a 9-10 hour day on his evidence. Further, the insurer points to the claimant’s evidence at the assessment that on a number of occasions in the months leading up to the hearing he had worked a full time work week, which he accepted to be in the order of 40 hours a week.
In the insurer’s submission, the medical certificates understate the claimant’s capacity to work. In circumstances where he is self-employed, the insurer argues that the purpose of the certificates of capacity is “unclear”. Further, in the insurer’s submission, the certificates were not prepared following detailed consideration of the claimant’s functional capacity, work environment and the activities he was undertaking.
The submissions record that the extent of the claimant’s impairment arising from the accident is in issue, and contend that he is tending to understate the amount he is working.
In the insurer’s submission, even if it is accepted the claimant has a reduced earning capacity, there is no evidence that it will be productive of financial loss. Further, the assumptions about future earning capacity, or other events on which the award is to be based “remain largely unaddressed”.
The insurer argues that the claimant’s submission that he is only working at 75% capacity, and that the annualised figure identified by Vincents of $160,000 reflects his working in this capacity, overlooks the fact that he has continued to scale his business and has been increasing his staffing levels. In the insurer’s submission the fact that the claimant has not needed to turn work away on account of his injuries, and plans to continue to grow his business, tend to undermine the suggestion that there has been or will be any limitations on the growth of the business on account of his injuries.
The insurer argues that the claimant has failed to establish that he has an entitlement to damages for future economic loss by reference to s 4.7 or that any theoretical loss of capacity has been or will be productive of loss.

Future economic loss – findings and award

While it is possible that, had the accident not occurred, the claimant may have started his own business, given:
(a)    he had worked in an employed capacity, while also undertaking some freelance work from time to time, after he completed an Advanced Diploma in Graphic Design and New Media in 2008;
(b)    he continued to work as an employee for over a decade until his employment with Drool came to an end, and
(c)    I have accepted his evidence that prior to the accident he intended to continue working as an employee and did not intend to start his own business,
I find that his most likely future circumstances but for his accident caused injuries were that he would have continued to be employed as a graphic and digital designer, in a role similar to that in which he was employed at Drool, for 38 hours a week until the age of 67.
I find that the claimant’s most likely future circumstances included that he would have continued to derive earnings similar to his pre-accident earnings, and that it is possible his earnings may have increased to $145,000 as he contends. This was acknowledged by Mr Kahler in his report at 5.25.
It is also to be noted that the claimant’s earnings while employed by Drool were greater than his earnings with previous employers. For example, in each of the years ending 30 June 2017 to 2019 his income from salary and wages was $90,000 gross. His income from salary and wages in the year ending 30 June 2014 was $63,865. In 2015 it was $67,293, and in 2016 it was $78,176. The claimant also reported business income in the years ending 30 June 2014 to 2016 ($5,242 in 2014, $3,524 in 2015, and $4,237 in 2016).
While it is possible his income may have been higher than he earned at Drool, it is also possible that it may have been lower. In this regard, it is relevant that I have found the claimant’s employment at Drool came to an end as a result of a slowdown in trade associated with Covid 19, and a dispute between the directors, and that this would have come to pass whether or not the accident occurred. I have also found that, but for the accident, the claimant would have had to find alternative employment from 29 March 2021. Accordingly, it is possible that the claimant would have obtained employment in which he earned a lower salary than he was earning at Drool.
I have found that the claimant has a loss of capacity to earn income that is permanent. I have also found that the loss of capacity is the result of his physical and psychological injuries, and the consequential physical limitations, pain, problems with concentration, disturbed sleep, and irritability. I have accepted the claimant’s evidence about the impact of his injuries on his ability to work as a graphic designer.
I do not accept the insurer’s submission that while the claimant has a loss of capacity to earn, it is not productive of financial loss. I am required to assess the economic consequences that will probably flow from the claimant’s loss of capacity. The claimant cannot work on average a full 38 hour week as a result of his accident caused injuries. While it is likely that there will be some weeks in which he does work 38 hours, and possibly more, he will “pay for it” and will be required to have time off to recover, as he has in the past. As a result of his accident caused loss of capacity, the claimant cannot earn what he had the potential to earn if he were uninjured.
The claimant’s business has, over time, expanded both in terms of income and staff. This does not, however, mean that he is not suffering a financial loss as a consequence of his accident caused loss of capacity. His ability to derive income from his business has been compromised because he cannot perform his work duties at the same level as he did prior to the accident as a consequence of his injuries.
I have found that the claimant cannot work full time as an employed graphic/digital designer. Likewise he cannot consistently work full time hours in his business. I am comfortably satisfied that he has a loss of capacity to earn that is likely to be productive of financial loss.
The claimant’s post-traumatic stress disorder is in remission. It is possible that there will be further improvement in that condition and the associated symptomatology. It is also possible that his business will continue to expand, and that he will increasingly take on management duties as opposed to work as a graphic designer. This may in turn enable him to reduce the activities that presently give rise to restrictions and pain, including sitting and standing, and to further tailor his working environment to cater for his accident caused restrictions.
In his report, Mr Kahler records his assessment of the financial performance of the claimant’s business. I accept that his summary of the financial records is accurate; there has been no submission to the contrary. Mr Kahler’s analysis of the financial records demonstrated that there has been significant variability in the performance of the business, including the assessed net profit. The adjusted net business income in the year ending 30 June 2021 was $58,998. In 2022 it was $62,503, and in 2023 it was $119,689. As is highlighted in the report at 4.39, the financial performance of the business during the second half of the year ending 30 June 2023 was far superior to the performance of the business in the first half of that year.
Mr Kahler observed at 4.42 that the claimant’s annualised income from the business during the six months ending 30 June 2023 is materially higher than his salary package at Drool. I consider it likely that the performance of the claimant’s business will vary from year to year.
It is to be remembered that, as discussed by Heydon JA (Mason P and Handley JA agreeing) in State of New South Wales v Moss [2000] NSWCA 133:
“[71] [S]trictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss... The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income... Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities.”[16]
[16] Citations omitted.
I am satisfied that this is a case in which the assessment of the claimant’s damages for future economic loss involves such a degree of speculation as to render a calculation by conventional techniques inappropriate. I award a buffer of $200,000 inclusive of superannuation.

Summary of damages award

Under s 7.36(1)(b) of the 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  $320,000
·        Past economic loss  $35,354
·        Past loss of superannuation  $4,950
·        Section 4.5(1)(d) damages (Fox v Wood)                  $Nil
·        Future economic loss   $200,000
Total Damages   $560,304
After a reduction of 20% to reflect the claimant’s contributory negligence, I assess damages in the sum of $448,243.

DRAFT REASONS

The insurer requested that draft reasons be issued to allow it to make submissions in relation to costs. Draft reasons were provided to the parties on 18 October 2024. The parties were given an opportunity to provide submissions in respect of obvious typographical or mathematical errors and in relation to costs.
While the insurer initially took the position that there was a mathematical error in the draft reasons, it subsequently confirmed that there was no error. The insurer also confirmed that it did not seek to make submissions with respect to costs as the damages assessed fell between the offers exchanged by the parties.
The claimant did not make any submissions with respect to obvious errors.

COSTS

In my draft reasons I informed that parties that I proposed to order the insurer to pay the claimant’s costs and disbursements in accordance with the Motor Accident Injuries Regulation 2017. I make that order.

[2024] NSWPIC 604

29 October 2024