Insurance Australia Limited t/as NRMA Insurance v Banfield

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Banfield [2023] NSWPIC 599
CLAIMANT:	Raymond Banfield
INSURER:	NRMA
MEMBER:	Hugh Macken
DATE OF DECISION:	2 November 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; impaired earning capacity; residual earning capacity; assessment of damages for accident in the course of employment; depression, anxiety, irritability, impatience, stress, and impaired concentration; whole person impairment; rehabilitating psychological injuries; post-traumatic stress disorder; future domestic assistance; cessation of employment; considerations for calculation of future treatment expenses; Held – claimant’s legal costs and amount of damages assessed accordingly.
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 s 149 and 150 of the Motor Accidents Compensation Act1999 (the Act) and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet in the sum of $64,503.84. 2. Under sub-sections 94 (3) and 94 (4) of the Act, I specify the amount of damages for this claim as $760,988.77.

STATEMENT OF REASONS

INTRODUCTION

The claimant is a 53-year-old man who was injured in a motor vehicle accident which occurred on 10 July 2014. He was driving, during the course of his employment and was slowing down to turn left into business premises on Milperra Road. He was struck from behind by the insured’s truck. The insurer has admitted breach of duty of care on the part of its insured driver with no allegation of contributory negligence on the part of the claimant.
The matter has taken a number of years to get to assessment primarily due to delays with, and re-examinations by, the Medical Assessment Service in respect to the issue of whole person impairment. Ultimately, the claimant was found not to having injuries which exceed the 10% whole person impairment threshold. Accordingly, an assessment of non-economic loss is not required.
The parties have agreed in respect to the following mathematical calculations:
·        past treatment expenses - $162,360.14;
·        total past economic loss (including loss of employer superannuation contributions) - $118,628.63, and
·        section 83 payments (including advances to the claimant of $60,000 and a repayment to the workers compensation insurer pursuant to s151 of the Workers Compensation Act 1987)- $224,585.53.
Accordingly, there remain three matters which require assessment. They are future economic loss, future treatment expenses and future commercial care.
Prior to the assessment of these matters it is appropriate to consider the findings in respect to both the claimant and the medical material as the factors which will most significantly give rise to the assessments of the three remaining heads of damage.

The claimant

The claimant presented as an honest, if somewhat troubled, individual. He has extensive experience and understanding in his chosen profession of that of an IT Engineer and Consultant. The claimant was employed by AKCS Pty Limited, which operated an IT network engineering company, for 14 years prior to the accident.

Whilst the claimant was a very loyal employee he was not a highly remunerated one. In the four years leading up to the accident his net weekly income increased from about $850 to about $915 net per week. This is not withstanding a charge out rate of in the order of $200 an hour and a full-time workload.
The claimant states, and I accept, that he had no psychological disabilities prior to the accident. He suffered from sleep apnoea which was controlled with a C-PAP Machine. He had undergone a rhinoplasty and surgical procedures to his eyes. He states, and I accept, that he was generally in good health prior to the accident.
At the assessment conference the claimant presented as a man whose confidence had been, in his words, “shattered”. He describes suffering depression, anxiety, irritability, impatience, stress, impaired concentration, impaired mental performance, impaired insight, avoidance behaviour and a feeling of being “overwhelmed” by most things at home and in the workplace.
Following the accident he describes attempting to continue in his employment but gradually becoming more and more overwhelmed and stressed as a consequence of the injuries sustained in the accident as well as the circumstance of the accident.
Whilst he was able to maintain his employment for some years following the accident he was, after a five week admission to a psychiatric hospital in September 2022, unable to continue in his employment and ceased work on about 24 October 2022.
The claimant describes, and I accept, some ongoing physical difficulties following the accident. More importantly at the assessment of this matter, he describes very debilitating psychological difficulties both he, and the medical material, which can be attributed squarely to the sequalae of the subject accident.

Medical material

Following the accident the claimant states:
“I had pain in my neck, middle back area and back area.”
He also states that he had a blow to the head and impact to his left knee.
In respect to his physical injuries he states:
“My major complaint is of continuing lower back pain in the lumbar region.”
The report of Medical Assessor Home dated 19 December 2019 notes intermittent neck pain, upper thoracic back pain and “fairly constant pain at the thoracolumbar junction”. He also notes the claimant stated that the early pain about the anterior aspect of his left knee settled within several months of the accident.
There was great diversion of opinion in respect to the medical material insofar as it relates to the claimant’s physical injury.
The insurer submits that the report of Clare Yoo dated 30 August 2018 which notes the claimant has a full range of motion in his neck, shoulders, thoracic and lumbar spine is reflective of a good recovery in respect to any physical injury. The claimant submitted that the report of Dr Davis dated 28 September 2018 notes a guarded prognosis and this opinion is more reflective of the claimant’s condition.
In general I concur, in relation to the physical injuries, with the insurer’s submissions. Medical Assessor Home notes soft tissue injuries to his cervical, thoracic and lumbar spine but noting complaints of intermittent neck pain, no muscle spasm, symmetrical spinal motion. This is also the case for the thoracic spine. There is a finding of 5% impairment in respect to the lumbar spine.
Supporting the insurer’s contention of a relatively minor ongoing physical injuries is the surveillance material relied on by the insurer showing the claimant moving freely whilst going about day-to-day shopping activities. Further, as the insurer notes, in 2016 the claimant completed an open water scuba diving course. He also is a student of Aikido which is a form of martial art. I ought to be noted that the claimant states, and I accept, that his practice of Aikido provides him with assistance in dealing with his significant and ongoing psychological difficulties.
I accept that the matter is as set out in the report of Dr R Breit dated 21 July 2020, that the claimant has suffered a soft tissue injury to his cervical and lumbar spine but is not significantly impaired consequent on his physical injuries.
Of far greater significance to the claimant, and this claim generally, are the quite serious and debilitating psychological injuries sustained by the claimant consequent on the motor vehicle accident. It is submitted by the claimant that it is his psychological injury which had the greatest effect on the claimant’s earning capacity and need for future treatment. The claimant presented at the assessment conference as suffering a very significant psychiatric injury consequent on the motor vehicle accident. The claimant stated, and I accept, that, prior to the motor vehicle accident he had not been in receipt of any psychological or psychiatric treatment. He now attends a psychiatrist three to four times a year, a psychologist every two to three weeks, has been trialled on medical cannabis and takes anti-depressants, insomnia medication and analgesics. The claimant described the psychological impacts as including depression, anxiety, irritability, frustration, impatience, impaired mental performance, impaired concentration, traffic phobia and avoidant behaviour, impaired social functioning and generally a feeling of being “overwhelmed”. The claimant’s psychological injuries, and consequent impairment, have been the subject of the bulk of the medical material in this matter. This includes a certificate from the Medical Assessment Service dated

10 February 2020 and a further assessment for permanent impairment of 14 March 2023.
In respect to the Certificate of Medical Assessor Reutens dated 10 February 2020 she notes the claimant presented with a mood described as stressed and depressed.
In 2019 he was admitted to St Vincents Hospital following concerns in respect to self harming. It was noted he was now separated from his former wife. He was diagnosed with post-traumatic stress disorder which was attributed to the subject motor vehicle accident. The claimant states that the breakdown of his marriage was a consequence of the psychological sequalae of the accident and not a cause of any psychological injury. I accept the claimant’s view on this noting that the first reports of the development of post-traumatic stress disorder go back to the report of Dr P Brimage dated 6 August 2014. This report stated:
“I believe that the designation post-traumatic stress disorder is appropriate based on my knowledge of the condition.”
The claimant continued suffering very significant and ongoing psychological difficulties. He was admitted to hospital for about five weeks in September 2022 following a psychological breakdown. Since that time he has not returned to work. He has been prescribed Vyvanse (stimulant medication) as well as psychotropic medication. This hospital admission followed an admission in August 2021 at Campbelltown Public Hospital to deal with anxiety and depressive symptoms with associated suicidal ideation.
The material which significantly disputes any ongoing psychological disability arising from the accident is that of Dr G Vickery. In his report dated 28 April 2022 he states:
“It is my opinion the only primary psychiatric disorder due to the motor vehicle accident is post traumatic stress disorder which has resolved.”
This is somewhat at odds with his report dated 20 August 2020 in which he states that the claimant:
“Has not sustained a recognisable psychological injury as a result of the motor vehicle accident”.
This seemed to be contradicted by his observation, in the same report, that he was consulting a psychiatrist and psychologist undertaking EMBR therapy, reporting significant psychological stresses and symptoms, experiencing suicidal ideation and taking anti-depressant medication. I do not consider that these observations make out any basis for

Dr Vickery’s observation that:
“There is no apparent medical basis for Mr Banfield’s alleged level of incapacity and pain perception due to the motor vehicle accident.”
I note the Certificate of G Smith dated 29 March 2023 specifically states that he disagrees with Dr Vickery as to having recovered from post-traumatic stress disorder or suffering any associated psychological condition. I accept Dr Smith’s contention that the claimant’s symptomology is fully consistent with a significant mood disorder and clinically significant distress and impairment. The report notes, as the claimant’s statement and presentation bear out that there is a deterioration in his condition over time. That is, a worsening of his depressive symptoms such that his condition is now consistent with the additional diagnosis of persistent depressive disorder.
I accept the claimant’s evidence of a serious and debilitating ongoing psychological injury consequent on the motor vehicle accident. In my view this is borne out by the overwhelming weight of medical material, my acceptance of the claimant and my acceptance of the need for ongoing intensive psychological, psychiatric and pharmacological treatment he is receiving to deal with these injuries and disabilities. Whilst his injuries have been found to be below the whole person impairment threshold which would give rise to a need to assess non-economic loss they are, nevertheless, greatly disabling and have left the claimant in need of ongoing intensive treatment and have had a devastating effect on his earning capacity.

Future domestic assistance

The claimant submitted that future domestic assistance be allowed at three hours per week for heavier domestic tasks, property maintenance assistance and “support for home, garden and maintenance services”. The insurer submitted that the material, including the opinions of Dr Briet, the surveillance of the claimant and his demonstrated post-accident physical capacities, refute the claim for any future commercial assistance.
The claimant stated:
“I now live in a share house with a few other people who do all the housework and I really do nothing around the house because of my pain and restriction.”
He goes on to state that if he could afford to he would pay someone to do the domestic duties that he can no longer do.
Whilst I accept the claimant would prefer to have the commercial assistance I am not satisfied that the material bears out a medical need for such assistance. In any event the material does not support a contention that there is a need to replace the work performed around the house with commercial assistance for heavier domestic tasks and home maintenance activities.
As I have outlined I do not accept that the claimant’s physical injuries leave him so debilitated as be unable to undertake tasks which he would have otherwise have been in a position to perform. Indeed the statement of his former wife, Amanda Jane Banfield, dated 12 July 2022 states:
“Raymond’s domestic input decreased slightly due to back pain.”
She notes that he continues to wash up (albeit it less frequently) and continued to mow the lawn but would only do part of it in one go and frequency decreased.
Further the surveillance footage of the claimant shows him moving without restriction and undertaking domestic shopping tasks without any seeming effect of any physical disability.
To his credit the claimant is undertaking Aikido. He has obtained an open underwater scuba diving certification. Accordingly, I do not consider that the material, when taken in totality, supports a contention that there is a need for future commercial domestic assistance to be provided which arises from the injuries sustained in the motor vehicle accident.
I assess future domestic assistance at zero.

Future economic loss

The claimant has not worked since 24 July 2022. The parties agreed in respect to a mathematical calculation by taking CPI increases to his pre-accident net earnings that his loss is currently in the order of $1,100 net per week. The claimant has submitted that he has no residual earning capacity and that future economic loss ought to be allowed to age 67 (14 years). The insurer submitted that there ought to be no allowance for future economic loss as the claimant’s cessation of employment was not causally related to the subject accident and that there is no impairment consequent on the motor vehicle accident.
As I have set out above I do not accept the insurer’s submission in respect to future economic loss. I accept the claimant as a witness of truth. He had no prior psychiatric injuries. Immediately following the motor vehicle accident he was complaining of post-traumatic stress disorder. His condition has deteriorated. He has had periods of hospitalisation in a psychiatric hospital. Following his last period of hospitalisation he has ceased working.
The statement of Arthur Klioufis made on 12 July 2022 notes that following the accident the claimant:
“has suffered a significant impact to his work performance.”
In his statement dated 7 September 2023 he states:
“Because of Raymond Banfield’s problems during the course of his employment with me after the motor accident he was unable to meet the demands of his employment. He was unable to perform the simplest tasks in the business”.
He goes on to state:
“The claimant’s employment was formally terminated on 24 October 2022.”
As I have outlined above I accept the claimant’s contention that the cessation of his employment was a direct consequence of the injuries he sustained at the motor vehicle accident.
Whilst the calculations for a total loss of impaired earning capacity would come to a figure of in the order of $582,000 with a deduction for vicissitudes and to which ought to be added loss of employer superannuation contributions. This presupposes that the claimant has no residual earning capacity and has, basically, no prospects of returning to any type of employment.
Whilst I accept that the claimant is very significantly impaired I do not accept the claimant’s submission that he has no earning capacity in the future. The claimant was questioned expensively on his earning capacity. When asked about applying his transferrable skills to positions requiring less responsibility he replied:
“It scares me.”
When asked if he could provide assistance working at an IT help desk he responded:
“That’s fine if I am not falling asleep on a client.”
When pressed would he work if he could the claimant responded in the affirmative.
Overall I accept the claimant’s earning capacity has been greatly diminished. Whilst his earnings were not all that high I accept that he will have grave problems in returning to any type of work requiring any responsibility.
There are some positive comments in respect to a residual earning capacity in the medical material. He was able to work for about eight years post-accident. He is receiving very significant levels of medical treatment to deal with his disorders including medications, psychiatric reviews and regular attendances with a psychologist. The medical treatment is provided to the claimant so as to improve his level of functioning. For his level of functioning to improve I do consider he could return to some type of employment albeit it fairly low level.
In my view his residual earning capacity is in the order of about 25% of his pre-accident earnings. That is a reduced salary, reduced hours, reduced responsibility and only likely to occur after considerable period of time and treatment.
Additionally, it ought to be noted that the claimant has undertaken some private IT work since October 2022. This has only been for about 20-30 hours in total at a charge out rate of about $100 per hour.
Accordingly, I consider his future economic loss to be reflective of a figure of in the order of $400,000.
This, whilst expressed as a buffer, is reflective of loss of earnings for 14 years of about $775 per week less vicissitudes of 15% with an addition of an allowance to reflect the loss of employer superannuation contribution.
Accordingly, I assess future economic loss in the sum of $400,000.

Future treatment

As is borne out by the agreed figure in respect to past economic loss the claimant has had a very significant amount of treatment, primarily in respect to the psychological disabilities, since the accident.
Both parties agree that there ought to be a significant allowance for future economic loss noting there is a need for regular general practitioner reviews, psychologist reviews, psychiatric reviews together with analgesic and psychiatric medication.
The claimant submitted that a figure of $100,000 was an appropriate figure allowing for monthly psychological reviews for life, quarterly psychiatric reviews, general practitioner and specialist reviews as well as ongoing medications.

What is clear is that the claimant will require significant and ongoing medical treatment in respect to his psychological injuries. He has been in receipt of constant medical treatment since the accident and has had numerous periods of hospitalisation. It may be that the treatment will provide him with some benefit and its need diminish over time but this is, to a certain extent, conjecture.
The claimant has a life expectancy of some 31 years. His medication needs, regular reviews form his general practitioner, intent ongoing psychological and psychiatric treatment, in my view at least in the immediate future, likely to cost in the figure of in the order of about $100 per week.
Whilst this may diminish over time in my view it is a fair basis to calculate a buffer in respect to the claimant’s future treatment needs noting the somewhat inexact science associated with it and in particular noting that there needs to take into account vacation periods, possible improvements and, in the decades ahead, a revision of modifications to such ongoing treatment.
Accordingly, I assess the claimant’s future treatment needs, as a buffer, in the sum of $80,000.

Assessment of Damages Summary

Under sub-section 94(1)(b) of the 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:
Economic losses
·Past treatment expenses  $162,360.14
·Past economic loss   $118,628.63
·Future loss of earnings (incl. superannuation)  $400,000.00
·Future treatment expenses   $ 80,000.00
·Future domestic assistance  Nil
Total of economic losses and non-economic loss  $760,988.77
Total Damages Assessed  $760,988.77
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
·section 83 payments $224,585.53

Conclusion

Costs and Disbursements

I assess the claimant’s legal costs and disbursements in accordance with s 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet in the sum of $64,503.84.
Under sub-sections 94 (3) and 94 (4) of the Act, I specify the amount of damages for this claim as $760,988.77.

Legislation

In making my decision I have considered the following legislation and guidelines:
•       the Act;
•       Motor Accidents Compensation Regulation 2015, and
•       Claims Assessment Guidelines/Personal Injury Commission Rules .

[2023] NSWPIC 599

2 November 2023