Insurance Australia Limited t/as NRMA Insurance v Bakas
[2024] NSWPIC 589
•21 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Bakas [2024] NSWPIC 589 |
| CLAIMANT: | Constandinos Bakas |
| INSURER: | NRMA |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 21 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of damages; claim for past and future economic loss; future treatment expenses; future commercial care; self-employed painter; inexact historian; need to support allegations of loss with documents; minor impairment of earning capacity; complex medical material; arduous physical employment activities; calculation of past economic loss; buffer future economic loss; no ongoing treatment; no future economic loss; Held – damages assessed at $146,327.87; claimant’s costs assessed at $55,854.99. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 94 (5) of the Motor Accidents Compensation Act 1999 Assessment of Claim for Damages made in accordance with s 94 of the Act 1. I assess the claimant’s legal costs and disbursements in accordance with ss 149 and 150 of the Motor Accidents Compensation Act 1999 and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet in the sum of $55,854.99. 2. On the issue of liability for the claim, NRMA’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 3. Under sub-sections 94 (3) and 94 (4) of the Motor Accidents Compensation Act 1999 , I specify the amount of damages for this claim as $146,327.87. |
STATEMENT OF REASONS
INTRODUCTION
Constandinos Bakas (the claimant) is a 49-year-old man who was involved in a motor vehicle accident on 12 October 2015. The vehicle in which he was driving was struck on the driver’s side by the insured’s vehicle which had failed to stop at a stop sign. The insurer has admitted breach of duty of care on the part of its driver with no allegation of contributory negligence. The claimant was assessed by Medical Assessor Robin Fitzsimons and found to have sustained injuries which do not give rise to a degree of permanent impairment greater than 10%.
The parties have agreed on a past treatment expense total of $16,363.87 which includes
s 83 expenses totalling $10,914.The matters requiring assessment are limited to past and future economic loss, future treatment expenses and a claim for future commercial care.
The matter was the subject of an assessment conference on 23 July 2024 at which time only the claimant gave evidence. Final material, being details of the costs and disbursements claimed, were received on 1 October 2024. In addition to opposing medical opinions given by the reports relied upon by each party the insurer submitted that the claimant ought not be accepted in respect to the assertions he has made and accordingly the submissions made on his behalf in respect to the quantum of this matter ought to be rejected. Noting this it is appropriate to deal with the claimant, and any findings to be made in respect to the evidence he gave, prior to dealing with the medical material. Both the assessment and the claimant and the assessment of the medical material will significantly colour the matters requiring assessment.
THE CLAIMANT
The claimant presents as a hard-working individual who does suffer from some ongoing consequences stemming from the motor vehicle accident on 12 October 2015. That said the claimant’s evidence, particularly in respect to his pre/post working capacity and earnings was confused and unreliable. Whilst it was submitted the claimant could only work a couple of hours a day in the four months following the accident this was clarified by the claimant at the assessment conference as being simply the inability for “full time work”. He went on to state, “I was doing some work- a couple of hours, when I didn’t feel so good I would go home.” When pressed as to when he returned to fulltime work, he stated he “can’t remember.”
The history taken by various medical practitioners is similarly confused. The report of
Dr McGroder dated 22 May 2017, some eight months post-accident, says “he had around 4 months off at the time of the accident and slowly eased himself back into work”. The report of Dr Bodel on 30 April 2020 states “he indicates that since the accident he was off work for quite a period of time but has now tried to go back to work and he can do some light small private painting jobs”. The report of Dr A Porteous dated 28 February 2020 states, in relation to time off work following the accident, “he said from memory he had approximately 3 months off work, returning to work in February 2016”. The report of Dr S Allnutt dated 6 April 2018 states “he took a few months off work. He was unsure exactly when he went back to work and had been working on and off since.”Clearly the claimant is an in-exact historian. I concur with the insurer’s submission that the economic loss submitted on the part of the claimant need to have some documentation to verify their veracity.
There remain other matters that seem somewhat confusing. The claimant stated that he had bought a house in East Gardens in about 2011 and at the time of the accident he had finished the plastering and partly painted the house after hours and on weekends. He states that since the accident the house has remained uninhabitable as he has neither the energy nor money to get someone to complete the renovations. There is no explanation as to why the renovation did not occur between 2011 and the accident in October 2015. Nor why, given he has continuing to work as a painter since the accident, he has been unable to attend to the painting and repair of this property.
Finally, the claimant gave no explanation in respect to his fairly small earnings. The financial year prior to the accident he had a declared income of about $20,000. The year ending
30 June 2016, noting this was the year of the accident, he had earnings of some $27,500. Thereafter, on 30 June 2017 earnings in his taxable income fell to some $5,000.Noting the invoices for the financial year prior to the accident totalled about $45,000 this would seem to equate to earnings of about $20 per hour on the claims stated pre-accident working hours of seven hours a day, six days a week.
These matters, particularly the inaccurate history given by the claimant given in respect to his post-accident work, make it difficult to ascertain what affect the accident has had upon his earning capacity. This is similarly that the medical material is contradictory in respect to the degree of impairment suffered by the claimant in the motor vehicle accident.
MEDICAL MATERIAL
The claimant’s statement outlines a detailed chronology of medical treatment since the date of the accident. This includes a referral for physiotherapy, prescription of pain relief medication and the rehabilitation program. The claimant outlines problems he has in respect to the movement of his right shoulder, neck, lower back and the psychological impact of the injury. There are very significant differences between the Medico legal opinions relied upon by the claimant and the insurer. That said I note there is also some consensus to the claimant’s overall condition. Report of Dr Parkinson dated 15 November 2018 states “I was pleased to review a MRI scan of the lumbosacral spine and cervical spine performed in 2015 and 2018 there was not a lot of difference”. He goes on to state “Con has continuing back pain status post MVA neck/back injury. This is continuing to cause a problem and he does not require surgical intervention”.
The insurer relied upon a report of Dr McGroder dated 22 May 2017. This report noted “injuries to the neck and back would be a direct result of the subject road traffic accident. They are consistent with the stated cause.” The report of Dr McGroder dated 10 July 2019, whilst noting that he was not having any specific treatment at the moment and also that the claimant is fit to perform his duties as a painter. He notes that he can perform these duties “as long as there are no time pressures on him”.
The claimant relied on a report from Dr Bodel dated 30 April 2020. Dr Bodel states, “from a physical point of view this gentlemen’s general prognosis should be quite favourable”. He notes that the fairly physical work as a painter poses some difficulty, but the claimant ought to increase his physical fitness levels to achieve a return to his work.
The claimant was examined by Medical Assessor Fitzsimons and her comment in a certificate dated 14 December 2023, found injuries to the cervical spine, lumbar spine, and both shoulders but determined 0% whole person impairment. Her report stated that she agreed with the claimants treating doctors “an actual history for such injuries is more gradual resolution after an unpredictable period of time”.
The material does generally support the claimant’s complaints of ongoing pain, stiffness and discomfort and impairment consequent on the soft tissue injuries he has sustained to his cervical and lumber spine. It is reasonable that these impairments would continue to have an adverse effect, albeit a fairly minor one, on the very physically demanding work of a painter.
The claimant also outlines psychological following the motor vehicle accident. He states that he suffers depression, frustration, reduced motivation, poor concentration, irritability and what he describes as a “chronic adjustment disorder secondary to chronic persistent pain and poor recovery from the subject accident”.
The report of Dr Bull dated 5 July 2023 notes the claimant “manifests a constellation of symptoms consistent with a chronic adjustment disorder with depressed and anxious moods”. His diagnosis was made primarily on the basis of the claimant suffering a chronic pain disorder.
At the assessment conference the claimant noted that he does not receive any psychological treatment nor is he on any prescription medication.
In the report of Dr Allnutt dated 6 April 2018 a slight impairment was noted in respect to his social and recreational activities, concentration persistence and adaptation.
Noting the presentation of the claimant, the lack of any identifiable need or prescriptions for ongoing psychological treatment. I do not consider that the claimant’s psychological injuries to be particularly disabling. I note that they have not been described by the claimant as having an adverse effect on any particular aspect of his work or physical capacities. I do not consider the claimant to be particularly or significantly troubled by any psychological sequala following the motor vehicle accident noting the findings I have made in respect to the physical sequelae of the subject accident.
It is reasonable to say that the claimant has been troubled by some minor physical and psychological sequelae of the motor accident. He continues to be somewhat physically disabled although not to the extent of a chronic condition which has been submitted by the claimant.
PAST ECONOMIC LOSS
The claimant submitted that past economic loss ought to be allowed in the sum of $548 per week. This would seem to be based on averaging the gross sales from 2013-2014 and dividing them by 52 weeks. This figure, even were gross sales to be the correct measure to be used for calculating past economic loss rather than his identified net income, gives rise to a gross figure not a net figure which is the correct way to award past economic loss. In any event the year prior to the accident the claimant’s net income was to be somewhat less than $400 per week.
Contrary to this the insurer submitted that whilst there appears to be a decrease in earnings following the accident any decrease is not related to the accident.
Further submissions were received provided by the insurer calculating that it was appropriate to allow a loss of some $384 per week since the accident giving rise to a total loss of $59,964. It ought to be noted, that as a self-employed individual, it is not appropriate to make any allowance for employer superannuation contribution.
Noting the uncertainties associated with the claimant’s earnings history, past earnings and the degree of impairment, I agree with the insurer’s submission in respect to the past economic loss since the accident and allow a sum of $59,964.
FUTURE ECONOMIC LOSS
The claimant submitted that future economic loss ought to be allowed based on an estimate of $350 per week until the age of 70. This would give rise to a figure in the order of $240,000. The insurer has submitted that the claimant has not established that, any injuries following the accident, his most likely future circumstance have changed. That is, that the material does not support any impaired earning capacity.
As I have outlined above, I do find that the claimant has some ongoing incapacities which have an adverse effect upon the capacity to perform the work of a painter. At the assessment conference submissions were made in respect to how a buffer for future economic loss ought to be calculated. Not surprisingly, it was contingent on the degree of impairment suffered by the claimant and arising from the accident.
The claimant outlined the ways in which his earnings have been affected. He states he now works at a slower pace and, the medical material supports this contention. He states that he only takes on work he can manage rejecting offers for big jobs as he cannot comply with the right time limits those jobs require.
The claimant’s tax returns provide limited insight in respect to the past and current earnings. That said, were the claimant to have been able to work without any restriction whatsoever it follows that his earnings would be somewhat higher.
I consider economic loss to be reflective of about a 20% reduction in his earning capacity. This is a figure of about $100 per week. Noting that he is about 50 years of age and, as a self-employed individual with a stated intention of working until age 70, it is appropriate to make an allowance for future economic loss by way of buffer of $65,000 to reflect this calculation. I note the claimant is self employed and accordingly not entitled to compensation for loss of employer contributions to superannuation.
PAST TREATMENT EXPENSES
The parties have agreed the past treatment expenses total $16,363.87 including s 83 expenses of $10,914.
FUTURE TREATMENT EXPENSES
The parties made very different submissions in respect to the appropriate calculation for future treatment expenses. The claimant submitted that an allowance of some $74,700 ought to be made noting pain relief medication of $20 a month, regular GP visits, rehabilitation assistance, occupational therapist assessments and, most significantly, twice weekly consultations for 6-12 months in respect to his psychological difficulties as well as anti-depressant medication of up to $100 per month.
The insurer submitted that there ought to be no allowance for future treatment.
The claimant states:
“I was prescribed mediation which I found did not allow me to work.”
He goes on to say:
“As I have been unable to find any treatment that gives me good relief I have had to learn with my condition.”
He states he uses over the counter medications to take the edge off the pain. There are no prescription medications in respect to any psychological disability.
It is reasonable that the claimant does attend his GP from time to time. There is nothing in the material to suggest any ongoing requirement for specialist treatment. He is not accessing psychological services. He is not taking any prescription medication and has not done for some years. Noting these matters, I consider an appropriate allowance for future treatment expenses, noting that fairly low-level treatment is currently required and this circumstance is unlikely to change, in the sum of $5,000.
FUTURE DOMESTIC ASSISTANCE
The claimant sought an allowance for future paid domestic assistance of $58,000. That is one hour of domestic assistance per week at $65 per hour for the remainder of his life expectancy. The insurer submitted that no allowance ought to be made.
The claimant is working as a painter. Whilst he may have some ongoing residual disabilities it can be fairly said that he is undertaking physically arduous work.
Whilst the claimant stated that:
“I am still dependent on my mother for making meals and general cleaning and tidying of the house.”
I did not find this assertion to be supported by the medical material and the findings I had made in respect to the claimant’s condition. It ought to be noted that he currently resides with his parents and accordingly there would seem to be no good grounds to allow commercial cleaning in premises where he resides with his older parents.
Whilst it was submitted that the claimant intends to move out of the family home at the end of the year when the renovation to his house in Eastgardens is complete there was nothing in the material to support this contention.
The report of Dr Porteous opined that he would reasonably need one hour a week of professional domestic and outdoor assistance if he did not have the gratuitous assistance of his parents and brother. In fact, he does have the assistance of his parents. Similarly, I did not concur with the assertions and statements of Dr Porteous in respect to the claimant’s condition or ongoing disability.
It is for the claimant to establish a need for commercial assistance. I am not satisfied, on the whole of the material before me, that the claimant has made out a need for future domestic assistance to be provided on a commercial basis. Accordingly, I assess future commercial assistance at Nil.
Assessment of Damages Summary
Past economic loss $59,964
Future economic loss $65,000
Past treatment expenses $16,363.87
Future treatment expenses $ 5,000
Future commercial assistance Nil
Total damages assessed $146,327.87
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
Section 83 payments $10,914
CONCLUSION
Under sub-sections 94 (3) and 94 (4) of the Act ,I specify the amount of damages for this claim as $146,327.87.
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 $55,854.99 inclusive of GST.
COSTS
I assess the claimant’s legal costs and disbursements in accordance with ss 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in the sum of $55,854.99.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
• Motor Accidents Compensation Act 1999, and
• Motor Accidents Compensation Regulation 2015.
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