Horsley v QBE Insurance (Australia) Limited
[2022] NSWPIC 387
•19 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Horsley v QBE Insurance (Australia) Limited [2022] NSWPIC 387 |
| CLAIMANT: | Adam Horsley |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 19 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Assessment of non-economic loss; factors to consider following severe traumatic injuries to right knee and leg, including seven operations in assessment of non-economic loss; assessment of economic losses past not contentious, future economic loss; career path and residual earning capacity; remote location; retraining impact on capacity for work; legal costs claimed; Held - the insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty; entitled to payment of legal costs. |
| DETERMINATIONS MADE: | 1. On the issue of liability for the claim, the QBE’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-ss 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017 (the Act), I specify the amount of damages for this claim as $2,609,972.60. 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $138,824.90 inclusive of GST. |
Reasons for Decision
Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 (the Act)
This determination relates to an assessment of damages under Part 4 of the Act:
BACKGROUND
Adam Horsley (the claimant) a 46-year-old male who was injured in a motor vehicle accident occurring on 20 December 2019. The accident occurred when a vehicle having dropped him off at the top of a steep driveway, attempted to reverse, lost gear and came down the driveway impacting with him and his garage door.
He was taken by ambulance to Wagga Wagga Base Hospital. He went under general anaesthetic to reduce the dislocation of his right leg and was subsequently transferred to Canberra Hospital for vascular review.
During the ambulance trip from Wagga Wagga to Canberra his leg dislocated again and he underwent surgery on 21 December 2019 to perform a closed reduction of the right knee with external fixation. He remained in Canberra until 1 January 2020 and was then transferred back to Wagga Wagga Base Hospital. He remained in hospital until 17 January 2020. He returned home to the care of his specialist and general practitioner.
At the time he was employed as a paramedic with New South Wales Ambulance working at Wagga Wagga.
Liability was wholly admitted by the insurer. On 24 September 2021 the insurer conceded the claimant was entitled to non-economic loss as his permanent impairment exceeded the statutory threshold.
On 21 December 2021 the claimant lodged his application for damages assessment pursuant to s 7.36 of the Act.
The issue that remains is the amount of damages to which the claimant is entitled.
Documents considered
I have considered the documents provided in the Application and the Reply and any further information provided by the parties. The parties were issued my draft determination on 7 July 2022 for review on costs and calculations with the insurer to provide updated payment details. The final replies were received on 19 July 2022.
Injuries
The written submissions lodged on behalf of the claimant with the Application, allege that the claimant suffered a severe injury to right lower limb, in particular incorporating a tibial plateau fracture, meniscal injuries, multiple ligament ruptures and dislocation requiring reduction.
Psychologically, the impact of the accident has caused chronic post-traumatic stress disorder.
Ongoing disabilities
The claimant particularised ongoing disabilities as the following:
(a) Severe pain in right knee.
(b) Weakness to right lower limb, in particular right knee, right hip, right ankle joints and associated muscles.
(c) Stiffness in the right knee, hip and ankle joints.
(d) Tenderness to muscles communicating with right knee including foot, shin, calf, hamstrings, quadriceps, hips, lower and upper back and neck.
(e) Difficulty walking.
(f) Extreme difficulty in negotiating gradients.
(g) Inability to negotiate stairs.
(h) Necessity to use a custom knee brace for stability and mobility.
(i) Necessity to wear compression stockings due oedema from vascular injury.
(j) Post traumatic neurovascular compromise with swelling.
(k) Hypersensitivity/pain sensation changes, temperature changes and colour changes.
(l) Disfigurement with scarring.
(m) Bowing to the leg.
(n) Atrophy to muscles.
(o) Colour changes, swelling and remodelling to the right knee.
(p) Sleeping difficulties.
(q) Difficulties with concentration, both from pain and discomfort, as well as constant recurring memories of the accident and the post-surgical procedures.
(r) Social difficulties.
(s) Loss of friendship and hobbies.
(t) Inability to enjoy pre-accident recreational activities such as mountain biking and training at a gym.
(u) Loss of professional career and future projected career advancements.
(v) Inability to carry out normal household and domestic activities such as vacuuming, mopping, bathroom cleaning, mowing, roof gutter clearance, washing the car, gardening, hanging out the laundry and grocery shopping.
(w) Inability to reach the front of his house, because of his inability to negotiate steep sloping drive.
(x) Anxiety.
(y) Depression.
(z) Irritability.
(aa) Insomnia.
(bb) Intrusive memories of the accident.
(cc) Social isolation.
(dd) Loss of confidence.
(ee) Short-temperedness.
(ff) Symptoms consequent upon development of chronic post-traumatic stress disorder.
(gg) Inability to enjoy physical activities with his young children.
(hh) Anxiety because of uncertainty about future career prospects.
(ii) Probability that he will need further surgery, namely a right knee replacement.
(jj) Increased pain in the right knee on walking and standing.
(kk) Swelling in the right knee and instability when negotiating uneven terrain or inclines.
(ll) Inability to kneel or squat.
(mm) Necessity to take painkilling medication.
Evidence of the claimant
Pre-accident
The claimant had previous injuries to his left leg which resulted in surgery from sporting accidents. He had recovered with minor ongoing problems which did not impact on his work capacity or ability to participate in domestic and recreational activities.
The impact of the subject accident
The claimant relied upon his lengthy statements provided in the matter. His statements were dated 21 December 2021 (document A3) and 21 March 2022 (document A4). These provided particulars of the effects of the horrific injuries he sustained and the pain and suffering he was exposed to. Details of each surgery undertaken, the complications and his journey of recovery.
a. After the initial surgery, his was advised the artery that supplies blood to the right knee had not healed. A bulge was creating an aneurysm. This prevented reconstructive surgery. He had further surgery on 5 February 2020 to remove the external fixator.
b. He remained in hospital until 14 February 2020 suffering excruciating leg pain.
c. Further surgery was performed on 3 March 2020 in Canberra to repair the popliteal artery aneurism at the knee crease. He was discharged on 6 March 2020.
d. He was advised by his surgeon Dr Kulisiewicz that a further three surgeries would be required to reconstruct his knee including the use of synthetic LARS ligaments, removal of external fixation and reconstruct the cruciate ligaments and posterolateral corner.
e. Further surgery took place on 11 May 2020 wherein the knee was manipulated under anaesthetic but found to be too stiff to implant ligaments at this time. He was discharged from Canberra Private Hospital on 14 May 2020. He returned home to be bedridden for eight weeks on a CPM machine. He describing the pain as “excruciating” once again.
f. Dr Airey vascular surgeon diagnosed post traumatic Reynaud’s syndrome necessitating wearing of a compression garment on 10 June 2020.
g. Further surgery was performed by Dr Kulisiewicz on 22 June 2020 which included multi-ligament reconstruction.
h. On 28 September 2020 a ligament repair to LCL and posterolateral corner was performed in Canberra.
i. Due to degeneration of the knee, his specialist made the decision he was to return to wearing a knee brace in November 2020.
j. On 23 March 2021 open reduction and internal fixation of the anteromedial tibial plateau fracture was performed. A bone graft was undertaken and medical meniscus capsular repair was performed.
There is a further plan for a hinge joint knee replacement. Currently the claimant is too young to undertake it as the implement would wear out and revision of the replacement may not be possible. When the pain is unbearable the further surgery will take place. The claimant anticipates holding off for as long as possible.
The claimant remains walking with a brace and with limited mobility. He cannot walk up inclines. He is unable to do any work in or around the home. He is unable to work.
He undergoes physiotherapy weekly and attends the gym five times a week.
Medications currently used are paracetamol, aspirin and ibuprofen.
He wears a leg stocking and is provided with assistance by the insurer for lawns and house cleaning and maintenance on a regime of 39 gardening visits and cleaning fortnightly.
He cannot work in his chosen profession due to his injuries. He is restricted in any form of work.
Whilst he attempted to train as a sonographer, he would not be able to obtain local employment as evidence by Mr Roach - chief radiographer at Wagga Wagga Base Hospital.
He reports he continues to suffer pain in his right knee and leg on standing and walking. He is unable to play with his children. Can no longer mountain bike or hike. He is depressed, upset, irritable, short-tempered and suffers insomnia. He suffers intrusive memories and is socially isolated. He lacks confidence.
In his further statement of 21 March 2022 the claimant confirmed whilst studying his knee became very stiff and more painful. Upon making the decision to stop the course, he found that the symptoms improved. He continues to undertake physiotherapy rehabilitation program.
The plan is to hold off the surgery for at least 10 years. He noted the ongoing risk of the artery attaching to the scar tissue and significant future risks of catastrophic bleeding and nerve damage. He reports even a possibility of amputation, which he is keen to avoid at all costs.
Statement of the claimant’s wife
Fleur Horsley described the impact of the injuries on her husband. She described the period post accident:
“6. When he eventually came home, I had to attend to all his daily need. Because of his immobility, he would mainly just sit on the lounge and watch a lot of TC. I could see that he became very depressed. He was also very concerned about his future. He knew that he would not be able to go back to work as a paramedic. His career had been very important to him. He was looking forward to promotions. From the day of the accident to currently, because of the problems with his leg, he is unable to do much around the house. He can’t do any lawns or gardens. He does some basic cooking and attends to the laundry. He can’t be doing any household maintenance such as the gutter. He can’t even walk to the main street because of the slope of the driveway. He is unable to kneel or squat.
7. For almost 12 months following the accident, he moved into the fourth bedroom, There was no sexual activity for at least 12 months. I could see he was in a lot of pain. He would take medication but it didn’t seem to work. He has particularly bad pain following the various surgical procedures.
8. Adam is struggling emotionally with the fact he is currently totally incapacitated for performing any work”
Medical evidence
Claimant’s
Whilst significant volume of medical records were produced in this matter (documents A7 to A69 ) there is little dispute that the claimant suffered the injuries he claimed.
Medico-legal report to support the claimant’s claim were obtained from the following doctors and I summarise their opinions below;
a. Sophia Lahz report dated 31 August 2021 rehabilitation physician
i.Diagnosis
Complex right knee injury incorporation tibial plateau fracture, multiple ligament disruption and posterolateral corner disruption, as well as quadriceps tendon avulsion requiring repair.
Multiple operations
Surgical scarring to thigh knee and shin.
Post-traumatic knee osteoarthritis.
Persistent right knee pain and posterior instability with posterior tibial sag. p 25.
ii.Prognosis
Gradually evolving post-traumatic osteoarthritis and will require total knee replacement due to destruction of the joint surfaces by bony fracture and ligament injury with chronic instability.
Given his youth it is more likely than not he will require at least two TKR revisions.
iii.Disabilities
walking;
standing;
running;
squatting;
kneeling;
climbing;
lifting;
negotiating uneven ground, and
negotiation slopes. (p 26)
iv.Fitness for work
“He would be fit for light duties in an office based environment (with autonomy for sitting standing and walking according to physical tolerances) although he will be hampered by the lack of available, suitable office -based positions in Wagga”. (p 28)
b. Dr T Gothelf report dated 2 October 2021- orthopaedic surgeon
i.Reported current status
Adam rated the right knee pain as a two on a scale of zero (no pain) to 10 (worst imaginable) The knee has a constant ache. The knee feels unstable when walking with or without the brace. He wears a hinge knee brace for all of the day. The knee still clicks with movement and the knee is stiff. Adam can walk about 100-200 metres easily. There is recurrent swelling. He gets discolouration of the leg and the leg gets cold at times and then resolves, The leg swells at times
ii.Examination
The right knee had a severe posterior and posterolateral instability and severe anterior instability. There was laxity to varus stress of 5 degrees. There was medial joint tenderness.
iii.Prognosis
The prognosis is poor. The right knee condition is not likely to improve and is more likely to deteriorate and require further surgery for a total knee replacement. Adam has an experience of constant pain and swelling of the right leg with instability and stiffness requiring the use of a brace and a stocking constantly. His ability to perform daily activities will not improve.
iv.Fitness for work
Adam is not fit for pre-injury occupation. He is fit for light duties with limited walking, no bending, no squatting, no repetitive work.
Adams right knee condition will likely deteriorate and he will develop more severe arthritis. … the right knee deterioration will likely result in increased symptoms resulting in a loss of earning capacity in the future.
c. Dr B Teoh report dated 14 December 2021 - consultant psychiatrist
i.Mental State Examination
He reported significant anxiety and depressive symptoms. He has been pre-occupied with negative thoughts and worrying about his physical condition and employment. He reported that he has intrusive memories of the accident. He has been agitated and he has avoidant behaviour.
He has lost his confidence, he has been worrying about further accidents, he has been easily startled and irritable. He reported feeling depressed and worries. He said that his life has changed and his world had fallen apart. He has been preoccupied with guilt and negative thoughts.
There was no evidence of psychotic symptoms or suicidal ideation.
His cognitive functions were intact, there was no evidence of short or long term memory impairment.
Summary and Opinion
Chronic Post-Traumatic Stress Disorder
His prognosis is poor and his condition has become chronic.
He can benefit from 12 months psychological treatment from psychiatrist psychologist.
Whole person impairment 17%.
d. Associate Prof Myers dated 29 November 2021 - general and vascular surgeon
Prognosis
The knee is going to continue to deteriorate. He already has significant arthritis as seen on scanning and arthroscopies of the knee. ...I am quite sure this will progress. ...Even with the amount of ligamentous and tendinous damage around the knee I suspect the results of this will probably be sufficient to enable him to mobilise, but I do not think he is likely to ever return to anything approaching normal knee function.
It is very clear that Mr Horsley has suffered very significant knee injury from which he will never fully recover and for which he will inevitably go on to need knee replacement.
Work capacity
His future capacity for work is going to be limited to sedentary or administrative type duties. He may well need to be retrained.
e. Dr Synnott report dated 28 March 2022 - consultant psychiatrist
Presenting complaints
From the time of the MVA and over the first few weeks symptoms included “I felt that my whole world had crumbled around me” “I was in serious distress”, “my whole life had changed” … the situation was devastating.
27 months later he continues to experience symptoms – irritable with a short fuse, impaired concentration/ability to maintain focus (with such things as study, reading and the like. He has recurring images of the accident, “it plays over in my mind”.
Depression, poor sleep (pain thinking and worrying) and nightmares about the accident, anxiety and nervousness and difficulty relaxing. Impaired concentration and memory, loss of motivation and interest, social withdrawal, irritability, fluctuating appetite, upset by reminders/cues.
Symptoms worse over the last two years because of how his life has changed “for the worse” including - chronic pain, loss of vocation, the significant physical limitations in his life and “guilt” because he cannot play with his kids. (p 3)
Diagnosis
post-traumatic stress disorder and major depressive disorder.
Prognosis – guarded, it will be significantly influenced by the course of his physical symptoms/injuries arising from the motor vehicle accident. If there is no significant improvement … there is unlikely to be any significant improvement in his psychiatric symptoms. (p 8.)
Insurer’s
The insurer relied upon the reports of the following opinion and I summarise them below:
a. Dr Keller Occupational - physician dated 15 October 2021
Self stated capacities included:
sitting 1-2 hours;
standing 30 minutes;
walking up to 200 metres;
lifting up to 10kg;
driving up to 20 minutes, and
Mr Horsley has persisting pain, swelling and restriction in motion in the right knee and lower limb.
Work Capacity
In my opinion Mr Horsley is permanently restricted from returning to work as a paramedic. (p 5.)
Future work capacity
Has the capacity to work eight hours a day five days a week. His role should be sedentary where there is capacity to move the right leg and stand or walk when required. He should avoid lifting more than 10kg. He should avoid stairs, ladders, squatting or kneeling.
Prognosis
There is no prospect of full recovery. It is likely that Mr Horsley will have permanent restriction in motion. Weakness and disability in the right lower limb.
b. Dr Machart – orthopaedic surgeon report dated 11 January 2022
Current symptoms
Right knee pain, stiffness. Diminished sensation. Muscle tightness.
Hip pain and stiffness.
Back pain and stiffness.
Diagnosis
Severe injury to the right knee and leg. Vascular injury which required repair. Orthopaedic injury, was multiligament rupture, patellar ligament rupture, and tibial plateau fracture. Multiple operations. He is left with instability, stiffness, and pain.
Prognosis
There is unlikely to be much change in the severity of his condition in the foreseeable future.
Work Capacity
Sedentary work until such time that definitive treatment is instituted. He is heading towards a knee replacement. Once this is conducted, then he may be able to regain reasonable community ambulation that will improve his work capacity. I doubt that he will be able to work in pre-injury employment. He should be limited to administrative work.
c. Occupational therapy driving assessment - 12 May 2021
The off-road and on-road assessments indicated that Mr Horsley’s condition does not impact on his ability to drive according to Transport for NSW standards. Maintains his Class C driver’s licence with no conditions.
Insurer’s Submissions
The insurer took issue with the future vocational capacity. Relying on the opinion of Dr Lahz and Dr Gothelf, that in August and September 2021, the claimant was fit to undertake light duties with restrictions. It was considered that a role of sonographer was within his capabilities.
The claimant undertook courses to enable his Paramedic qualifications to be upgraded to enable him to undertake the course. He enrolled in a course at the university of Tasmania obtaining credit average.
Dr Keller noted the claimant was studying seven hours daily attending gym for two hours on five days each week.
Only when the Personal Injury Commission application was lodged, the applicant alleged a severe and quick decline in his condition, He withdrew from his studies due to his injuries despite achieving high grades.
Dr Machart on 1 November 2021 opined he had the capacity for sedentary duties and with an eventual knee replacement his capacity would improve further.
Dr Caton on 9 November 2021 reported the claimant was struggling to stand without pain, was uncomfortable sitting behind a desk for more than a few minutes and had limited focus due to pain. This reported intolerance was much greater than had previously been reported:
a. Mr Burge stated in May 2021 standing tolerance of 10 minutes.
b. Dr Keller in October 2021 noted 30 minutes standing tolerance.
c. On 1 December 2021 Mr Burge stated the claimant was unable to remain stationary for prolonged periods.
d. Dr Kulisiewicz treating surgeon on 7 December 2021 opined the claimant was unfit for employment in many sedentary fields – unfit for all employment. This was contrary to an earlier opinion given on 28 July 2021 where he considered the claimant fit for light duties of four to eight hours per week progressing to 20 hours weekly.
The insurer considered the change in opinions curious, noting the about face from having capacity to no capacity appearing to coincide with the lodgement of his common law claim asserting total economic loss.
The “monumental shift in Dr Caton’s and Dr Kulisiwicz’s opinion as to the claimant’s capacity and ability to work in a sedentary role” is a concern to the Insurer. There is no basis for why there is this sudden change in opinion.
The claimant was undertaking study when assessed by Dr Lahz, Dr Gothelf and Dr Keller. They all considered the claimant fit to undertake retraining and light duties of a sedentary nature.
The claimant is able to attend gym five days a week doing two hours of exercise.
Findings on Injury
There is little dispute between the parties that the claimant has sustained significant injury to his right knee and leg and also suffers ongoing psychological injuries as a consequence of the accident. The insurer conceded that he required all the treatment he has received to date and will require further surgery in the future.
The claimant suffered horrific injuries and his right leg continues to be problematic with his requiring to use a knee brace and pressure stocking daily.
He suffers significant restrictions in the activities he is able to undertake due to the unstable nature of his right knee.
I am satisfied the medical evidence before me establishes that the claimant sustained a severe injury to right lower limb, incorporating a tibial plateau fracture, meniscal injuries, multiple ligament ruptures and dislocation requiring numerous surgeries and investigations. He will require one or two total knee replacements in the future.
Psychologically, the impact of the accident and injuries sustained and the chronicity of his symptoms has caused chronic post-traumatic stress disorder and major depression. His psychological conditions is tied to the physical injuries and will continue whilst he continues to suffer from the problems with his right knee and leg.
The claimant was not one to exaggerate the nature and effect of the injuries. He reported his symptoms at the assessment with frankness and came across as a credible witness.
DAMAGES
Non-economic loss
Claimant’s claim
The claimant is entitled to damages for non-economic loss as his whole person impairment exceeds the statutory threshold of 10% whole person impairment.
The claimant suffered extremely severe injuries to his right lower limb which has resulted in numerous surgeries and will require further surgery in the future.
He is relatively young aged 45 years. The impact of the injuries has interfered with his family life, interaction with his spouse and children and impacted on his pre-accident recreational, personal, domestic and work related activities.
He has suffered incredible pain and this continues. He suffers ongoing chronic post-traumatic stress disorder which includes anxiety, depression, loss of confidence, insomnia irritability and social isolation.
The injuries have resulted in a profound loss of enjoyment in life. So great is this impact, that I should make an award in the sum of $500,000
Insurer’s submission
The claimant has demonstrated that he is able to continue relatively functional, attending the gym five days per week, drive a car, and watch his son play rugby league. On occasion, the claimant will socialise with his wife or friends.
The report of Dr Synnott outlines that the claimant is still able to assist with preparing the kids for school, dropping them off at school and is able to complete light household tasks. Dr Synnott opined that the claimant’s psychiatric condition is significantly influenced by his physical symptoms and injuries. On this basis, the insurer submits that should the claimant undergo a total knee reconstruction, as recommended by the medical professionals, an increase in ability will positively influence his psychiatric condition.
The claimant’s submissions refer to the case of Reece v Reece (1994) 19 MVA 103. Respectfully, the insurer submits that the principles of this case do not apply under the Act and the Motor Accidents Compensation Act 1999. In accordance with the principles in RACQ Insurance Ltd v Motor Accidents Authority of NSW (No 2) [2014] NSWSC 1126, the quantum of damages awarded for non-economic loss must be fair and reasonable compensation for the injuries received and disabilities caused, and must be proportionate to the situation of the claimant. The insurer respectfully disagrees with the claimant’s estimate of $500,000.
The insurer submits that an appropriate award for non-economic loss in all of the circumstances is within the range of $300,000.
Assessmentof non-economic loss
Having regard to the injuries sustained, the operative procedures, the impact of the injuries ongoing upon the claimant, the necessity to undergo total knee replacement definitely once and possible a second, the impact and pain and suffering the claimant has endured and continues to endure is significant.
The claimant is currently aged 46 and has a life expectancy of a further 37.85 years. The impact at times has been devastating on the claimant and he has shown great courage embarking on study to improve his future quality of life.
His injuries will never totally resolve and he will continue to suffer from its effect for the remainder of his life. He will need further surgery and recovery from such treatment.
In the circumstances I assess non-economic loss in the sum of $400,000.
ECONOMIC LOSSES
Past economic loss
The claimant’s claim
The claimant was 43 at the time of the accident and was employed by NSW Ambulance as an Intensive Care Paramedic earning $2,113.81 net per week.
The claimant says that but for the accident he would have obtained promotion from team leader to inspector and ultimately to zone manager. It was his intention to remain working as a paramedic at Wagga Wagga until age 68 years.
The claimant has, from the date of the accident to date, been totally incapacitated for performing any work. A claim was made for $2,113.81 weekly from the date of accident to date of determination.
For the period 20 December 2019 to 19 July 2022 = 134.71 weeks. $284,751.35
Superannuation claimed at 11% = $ 31,322.65
The Fox v Wood component amounted to $49,490.
The insurer’s submission
The insurer is in agreement with the claimant as to past economic losses claimed.
As at 12 May 2022, payments have been made by QBE in the amount of $269,058.66 for which it is entitled to a credit. Fox v Wood payments have been made in the amount of $49,490. The insurer agreed to the claimant’s calculation of past economic loss, including Fox v Wood and loss of superannuation at $346,983.84 to the date of the Assessment and the calculations were to be updated as at date of determination. The updated calculations were agreed on the basis of the ongoing calculation to date.
Assessment of past economic loss
There is little dispute between the parties that the horrific injuries suffered by the claimant has rendered him unable to return to his pre-injury employment as a paramedic.
So traumatic are the injuries that due to the ongoing treatment and symptoms the claimant has been unfit to obtain any form of employment to date.
Whilst he has attempted to retrain undertaking study to become a sonographer, his injuries and ongoing symptoms make him unattractive to any prospective employer in that field. The claimant relied upon the evidence of Mr Roach to support this contention.
He remains unfit for full time work and the restrictions due to his injuries and limitations in his ability to stand and sit have made seeking any employment to date impossible. He is affected by pain and this limits his ability to concentrate.
Noting the apparent agreement, I assess past economic loss as follows:
The loss for the period of date of accident at $2,113.81 weekly net to date of decision amounting to $284,751.35. Plus the loss of superannuation in the sum $31,322.65 plus Fox v Wood component of $49,490 amounting in total to the sum of $365,564.
Future economic loss
The claimant’s claim
The claimant continues to be permanently incapacitated for performing work as a paramedic or for any work for which he has any training or experience. The claimant says that because of this incapacity he will not be able to obtain any gainful employment on the open labour market.
The claimant relies upon the following references to ongoing incapacity in the medical evidence as follows:
a. Statement of Andrew Roach page 48;
b. statement of claimant p21 December 2021 at paragraphs 63, 64 and 65;
c. reports of Dr Kulisiewicz:
•15 March 2021 at page 158;
•6 May 2021 at page 169;
•19 May 2021 at page 169;
•28 July 2021 at page 170, and
•7 December 2021 at page 172;
d. report of Dr Caton:
•9 November 2021 at page 174, and
•4 February 2022 at page 175;
e. report of Mr Burge physiotherapist dated 1 December 2021 at page 176;
f. report of Dr Sophie Lahz at page 178, in particular discussion at pages 205 and 206;
g. report of Dr Gothelf at page 210 in particular at paragraphs 221 and 222;
h. report of Dr Ben Teoh dated 14 December 2021 at page 229;
i. report of Associate Professor Paul Myers dated 29 November 2021 at page 254, and
j. report of Dr Synnott dated 21 March 2022 at page 266.
A claim was made that provided the current nett loss and increased each year by 2.5% based on the claimant’s annual award. A scheduled was prepared in AD15 which totalled the following:
$2,075,638 less 15% for vicissitude amounting to a total of $1,764,292.30;
future superannuation at 12% amounted to $211,715.08;
a buffer claim was also made for the loss of opportunity in his career path from team leader to inspector and ultimately to zone manager. A claim of $250,000 inclusive of superannuation was made for this particular loss, and
total claimed $ 2,226,007.38.
The insurer’s submissions
The claimant is 46 years of age, according to the statutory retirement age, he has approximately 21 working years until he reaches the statutory age of retirement. This means the appropriate multiplier is 685.6.
The medical evidence set out above supports a residual earning capacity, of light sedentary work. Dr Machart opined that the claimant’s capacity, following a knee replacement, may improve past sedentary work only. Further, his psychological condition is significantly influenced by his physical symptoms and injuries. The insurer submits that the claimant will have a greater residual earning capacity when he undergoes a total knee reconstruction. Associate Professor Myers opined that this should occur “within the next five years and probably no later than 10 years”. On this basis, the insurer does not know the claimant’s capacity post-surgery.
The claimant claims for a loss of promotion and for an annual salary increase of 2.5%. The insurer has no evidence to support these claims.
The insurer submits, based on his current and potential for greater capacity post-surgery, that the claimant has, at least, a residual earning capacity of 40% of his pre-accident earnings. Using the figure submitted by the claimant, this equates to:
loss until age 67 years at 60% of average weekly earning
residual earning capacity: $2,113.81 x 40% = $845.52;
loss of $1,268.29 net per week ($2,113.81 - $845.52);
$1,268.29 x 685.6 (5% multiplier for 21 years) = $869,539.62;
$869,539.62 less 15% for vicissitudes;
$869,539.62 x 15% = $130,430.94, and
$869,539.62 - $130,430.94 = $739,108.68.
The claimant is suitable for certain sedentary positions. In circumstances where the claimant is looking to retrain and has transferrable skills, the loss of $1,268.29 net per week is not unreasonable.
On the basis of the above figures, and using the standard 11% for superannuation, the insurer submits an appropriate figure loss of superannuation is $81,301.95.
In support of its submissions the insurer provided copies of job postings from the internet for positions of radiographer, administration officer at Wagga Wagga Base Hospital, receptionist, medical receptionist. Their utility was limited.
The Insurer provided updated submissions on 19 July 2022, in relation to my draft decision arguing there was no consistency to the future figure being year 1 at $2,282.35 where the past losses were addressed as a loss of $2,113.81 per week. The first year if 2.5% was calculated was $2,166.66 not $2,282.35 as claimed.
Assessment of future economic loss
The claimant at the time of the motor vehicle accident was a paramedic earning $2,113.81 weekly.
The medical evidence is unanimous that the claimant is unable to return to his pre-injury position due to the impact of both the ongoing psychological injuries and the physical injury to his right knee and leg.
I am satisfied that the claimant will not return to his pre-injury position.
The dispute that exists between the parties is whether the claimant has any residual earning capacity.
The claimant at one point was eager to retrain to the position of a sonographer and commenced further studies at the University of Tasmania to qualify as a sonographer.
The claimant did exceptionally well with his studies earning high grades. This was reported to numerous medical practitioners during mid-2021.
The insurer questioned the change in attitude of the treating doctors in later 2021 when the claimant had commenced proceedings in the Personal Injury Commission.
What is clear, is that upon the advice of Mr Roach, that the claimant would not be employed within his department at the Wagga Wagga Base hospital, the claimant has ceased his studies.
It is accepted that the claimant would be challenged by other radiologists who were uninjured when applying for such positions and that the physical nature of such a role is likely to be offered to uninjured personnel. The restrictions of his right knee and leg would make that role unsuitable.
Damages may not be awarded for future economic loss unless the claimant first satisfies me 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.
On the material presented and noting in particular, the material addressing the claimant’s pre-injury work capacity, I am satisfied that the claimant’s future capacity, insofar as he was intending to remain working as a paramedic until retirement was proven.
The claimant also claims that he intended to seek promotion to team leader and then zone manager. I note the evidence that this is merit based and that the claimant’s evidence was that he had received promotion relatively easily. There has not been any evidence directly from his employer to support his promotional advancement. There is a lack of evidence to make an award on this claim.
The claimant also has a duty to mitigate his losses and I accept that the claimant has attempted to do so by furthering his study only to be further disappointed that he would be unable to find employment in that field, accepting the evidence of Mr Roach, the chief radiographer at Wagga Wagga Base Hospital.
The claimant lives in a regional area and this may limit his capacity to find alternate employment.
I am satisfied that the claimant has lost his earning capacity due to the injuries sustained and whilst there may be some capacity to work a few hours weekly, finding this sedentary employment in the current marketplace and his geographic location would be extremely difficult. He would need a very sympathetic employer and noting his ongoing difficulties both from a physical and psychological perspective his employability on the open labour market in the area he lives is considerably low.
Whilst there was medical opinion supporting some residual earning capacity in a sedentary role, noting the ongoing deterioration reported by Dr Caton his general practitioner, Dr Kulisiewicz his treating surgeon and Mr Burge his physiotherapist. The extent of residual earning capacity is minimal. I do not agree with the insurer’s submission that he has a residual earning capacity of 40%.
Also the submission that he may have a greater earning capacity post knee reconstruction does not factor in that this operation is likely to take place in 10 years’ time and there is no guarantee it will be successful.
I consider that the chances of the claimant finding a satisfactory sedentary position of a light nature noting his limited ability to drive, his ongoing difficulties with sitting and standing and lack of ability to concentrate, I make practical assessment of the likelihood of obtaining work against a background of a theoretical ability to perform certain jobs.
As with the decisions of Mead v Kerney [2012] NSWCA 215 and the principles set out in Nominal Defendant v Livaja [2011]NSWCA 121 there must be a practical assessment of the likelihood of actually obtaining such work.
Notwithstanding there has been opinion that the claimant is capable of some type of sedentary work of limited duration, the likelihood of him obtaining work close to home with the ongoing restrictions both physical and psychological is so remote as to render the proposition of residual earning capacity as improbable.
I therefore accept that the claimant has negligible residual earning capacity and propose the future economic losses be based on a total loss of earning capacity.
I allow future losses claimed by the claimant taking into consideration the Paramedics and Control Centre Officers (State) Award 2019 which establishes the 2.5% annual increases.
I note the submission of the insurer in relation to the first year sum claimed and disagree that there is no logic. Noting the figure of past loss was the year of the accident 2019, I have checked the sum claimed and used the base increased by 2.5% for the 2020 and 2021 year and the sum claimed by the claimant for future losses accords with the 2.5% yearly increases. I accept the figure of year 1 losses in the sum of $2,282.35 is an appropriate estimated weekly nett loss.
Relying upon the claimant’s calculations in the document AD15 at pages 7(a) and 7(b), I allow the sum claimed to year 21 in the prepared schedule as the basis of future economic loss. The annual increases of 2.5% yearly are pursuant to the relevant award and the application of the appropriate yearly deferral discount multiplier was applied to come to the yearly amounts of loss claimed. I note the weekly sum claimed in year 21 is $3,739.11 and is below the current maximum of $4,403 so all years were permitted as claimed and did not exceed the maximum weekly threshold (Division 3.3 s 3.9). I therefore allow the following sums: total claimed $1,937,404
a. deducting vicissitudes of 15% - ($290,610.60) = $1,646,793.40;
b. $1,646,793.40 x 12% for loss of superannuation = $197,615.20;
c. total of future economic loss amounts to $1,844,408.60;
d. for reference the yearly claimed and allowed were:
i.year 1 - $116,153;
ii.year 2 - $,113,340;
iii.year 3 - $ 110,682;
iv.year 4 - $108,070;
v.year 5 - $105,515;
vi.year 6 - $103,028;
vii.year 7 - $100,472;
viii.year 8 - $98,165;
ix.year 9 - $95,807;
x.year 10 - $93,560;
xi.year 11 – $91,290;
xii.year 12 – $89,152;
xiii.year 13 - $86,896;
xiv.year 14 - $84,859;
xv.year 15 – $82,877;
xvi.year 16 – $80, 912;
xvii.year 17 - $78,938;
xviii.year 18 - $77,052;
xix.year 19 – $75,358;
xx.year 20 - $73,528, and
xxi.year 21 - $71,750.
I assess future economic loss in the total sum of $1,844,408.60.
Damages summary
As per the above, I make an award as follows:
· non economic loss $400,000
· past economic loss $365,564
· future economic loss $1,844,408.60
· TOTAL $2,609,972.60
(The insurer is to have credit for the payments made in the sum of $ 290,398.66 for weekly payments to 19 July 2022. This sum is agreed between the parties.)
Costs and disbursements
A schedule was provided in accordance with a claim for legal costs under s 155 of the Act.
I make an award for costs in accordance with the abovementioned Schedule, as per the attached costs calculator.
Legal Costs: the amount of the claimant’s costs assessed in accordance with the Motor Accidents Compensation Regulation 2015 is $138,824.90 inclusive of GST.
DETERMINATION
On the issue of liability for the claim, the QBE’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty.
Under sub-ss 7.36 (3) and 7.36 (4) of the Act, I specify the amount of damages for this claim as $2,609,972.60.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $ 138,824.90 inclusive of GST.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
· the Act, and
· Motor Accident Injuries Regulation 2017.
CASE LAW
Non-Economic Loss
• Thatcher v Charles [1961] 104 CLR 57, and
• Reece v Reece [1994] 19 MVR 103.
Economic Loss
• Nominal Defendant v Livaja [2011] NSWCA 121 per Basten JA at [65];
• Mead v Kearney [2012] NSWCA 215 per McFarlane JA at [18], [24]-[25];
• South Western Sydney Local health District v Sorbello [2017] NSWCA 201 per Simpson JA at [53], [72]-[76];
• Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council [2020] NSWSC 1710 per Rothman j at [490]-[491];
• Duffin v Mount Arthur Coal Pty Ltd [2020] NSWSC 229 per Harrison AJ at [247], and
• Evans v Allianz Australia Insurance Limited [2022] NSWPIC 99 (18 February 2022) per Member McTegg at [229]-[230].
Shana Radnan
Member (Motor Accidents Division)
Personal Injury Commission
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