Insurance Australia Limited t/as NRMA Insurance v O'Keefe

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Insurance Australia Limited t/as NRMA Insurance v O'Keefe [2024] NSWPIC 457
CLAIMANT:	John O’Keefe
INSURER:	Insurance Australia Limited trading as NRMA Insurance
MEMBER:	Susan McTegg
DATE OF DECISION:	20 August 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999 (MAC Act); damages; economic and non-economic losses; past and future treatment; past gratuitous care; past and future commercial care; equipment costs; post-traumatic stress disorder, burns, injury to left hip and leg; lumbar spondylosis; obvious error; interest; Fox v Wood; claimant as member of Rural Fire Service (RFS) was responding to a fire when he was pinned between two fire trucks as fire front passed over; following accident returned to work as project manager; reliability of claimant’s evidence; reliability does not mean credibility; weight to be given to contemporaneous records; Campbell v Campbell cited; deterioration in condition led claimant to move into self-employment in car restoration business; question of capacity to undertake household, handyman and gardening tasks where undertaking heavy car restoration work; difficulty as to calculation of loss of earnings; NSW v Moss; additional claim for buffer for loss of opportunity to secure promotion; claim for equipment costs required to convert hobby of car restoration into business; Allianz Australia Insurance Limited v Serria Girgis and Ors cited; Held – the claimant’s move into self-employment working 26 hours per week has been an appropriate strategy to mitigate loss given lack of trust and tendency towards social isolation; damages assessed for non-economic loss, past and future treatment expenses; discount applied as per Avopiling Pty Ltd v Bosevski to future losses; past gratuitous assistance; past commercial assistance including driveway repairs, weed control, house painting; equipment needs; future commercial assistance; errors cited would change outcome of assessment and are not obvious errors; claimant has not established entitlement to interest where he does not meet any of conditions in section 137(4) of the MAC Act; damages and costs assessed in favour of claimant.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 4.4 of the Motor Accidents Compensation Act 1999 1. On the issue of liability for the claim, the 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. I assess the amount of damages for this claim as $1,575,576.42. 2. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim is $100,477.04 inclusive of GST.

REASONS FOR DECISION

INTRODUCTION

On 17 February 2017 John Anthony O’Keefe (the claimant) was working with the Rural Fire Service responding to an emergency fire at Carwoola. Mr O’Keefe was fighting the fire when he became pinned between two fire trucks. He was unable to free himself as the fire approached. The fire front passed over Mr O’Keefe. He thought he was going to die, describing the experience as highly traumatic. Mr O’Keefe suffered physical crush injuries, burns and a psychological injury.
I am asked to assess damages pursuant to the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act) in respect of the injury sustained by the claimant.
Insurance Australia Limited trading as NRMA Insurance is the relevant insurer with liability to pay damages to the claimant under the MAC Act.
Mr O’Keefe lodged a Motor Accident Personal Injury Claim Form dated 11 December 2018.
The insurer has admitted liability for the claim in a s 81 notice dated 28 October 2019.
The claim was listed for assessment on 2 July 2024 and on 12 July 2024. Mr O’Keefe was represented by Mr John Guihot of counsel instructed by Ms Elizabeth Ramsay of AR Conolly & Co. The insurer was represented by Ms Olivia Dinkha of counsel instructed by Mr Jamie Bruce of Moray & Agnew Lawyers.
I was informed the parties had reached agreement on the following matters:
·        the claimant is currently aged 56.5 years;
·        the claimant has a life expectancy of 28 years;
·        the 5% multiplier for 28 years is 796.6;
·        the claimant has a further working life of 10.42 years;
·        the 5% multiplier for 10.42 years is 426;
·        as of 2 July 2024, it was 385 weeks since the accident;
·        future superannuation is to be calculated at the rate of 14.5% of the net loss;
·        past superannuation to be calculated at 11% of the net loss;
·        the relevant rate for future commercial care is $50 per hour;
·        the rates for past gratuitous care are as set out in paragraph 65 of the claimant’s most recent submissions;
·        weekly payments paid by iCare total $221,217.57 as 18 June 2024, and
·        treatment expenses paid by iCare total $121,884.33 as of 18 June 2024.
I am asked to assess damages in respect of the following:
·        non-economic loss;
·        past treatment expenses;
·        future treatment expenses;
·        past economic loss;
·        future economic loss;
·        past gratuitous assistance;
·        past commercial assistance, and
·        future commercial assistance.

THE EVIDENCE

Pre-accident medical evidence

Mr O’Keefe saw Dr Joanne Baxter general practitioner (GP) on 24 November 2016. She recorded “C6 nerve compression, has worsened, swelling of hand at times, on right only”. She also noted paraesthesia in both hands, dropping things and difficulty picking up small things such as bolts. She also noted for the last two months he had been saying the wrong word.
On 15 December 2016 Dr Colin Andrews, neurologist reported he had seen the claimant on 28 November 2016 for nerve conduction studies which showed no abnormality. The only abnormal clinical finding was reported to be mild weakness of the right triceps with a diminished right triceps jerk, suggestive of a right C7 radiculopathy. He referred Mr O’Keefe for an MRI scan of the cervical spine which showed spondylosis and narrowing of the intervertebral foramen. Noting the neck and radicular pain in the arms was not severe no further treatment was recommended.
On 6 January 2017 Dr Baxter reported the neck pain had improved. She noted the issues with trying to get the right word out had been dismissed by Dr Andrews.

Evidence of John O’Keefe

Pre-accident history

Mr O’Keefe provided a statement dated 28 May 2024 and gave oral evidence at the assessment conference on 3 July 2024.
Mr O’Keefe has been married to Therese Flapper since 1991 and they have been a couple since they were 16 years old. Dr Flapper works as an engineer and project manager.
They have one son Leilland who is now 22 years of age. He moved out of home in May 2021 and moved to Queensland at the end of April 2024. Leilland runs his own handyman business Handyman Lando.
After completing the school certificate in 1983 Mr O’Keefe qualified as an electrician. He was employed as an electrician doing residential, commercial and light commercial electrical work by Go-Elec from 1988 to 1993. During this employment he sustained an injury to his left knee resulting in a workers compensation claim. He underwent an arthroscopy. Mr O’Keefe states his left knee recovered.
From 1993 to 2003 Mr O’Keefe worked at Campbelltown RSL Club as the maintenance facilities manager. He qualified as an air conditioning technician.
From 2003 to 2012 Mr O’Keefe ran his own company Alchemy Electrical Pty Limited doing electrical and air conditioning work including for schools, TAFE’s and the Department of Commerce.
In July 2011 Dr Flapper started work in a national role with GHD in Canberra. Mr O’Keefe became the primary carer for Leilland and did most of the housework, chores and childcare whilst his wife commuted to Canberra and travelled for work.
In April 2022 Mr O’Keefe and his wife bought a 16 acre property at Burra, in the Canberra area.
From May 2012 to December 2012 Mr O’Keefe worked for Spotless Facilities Services at the Australian War Memorial undertaking project management work. Between January 2013 and November 2013 Mr O’Keefe worked at the War Memorial. During this period, he tore his left calf muscle which apparently recovered.
Between November 2014 and December 2015 Mr O’Keefe worked for ACT Health in maintenance at Canberra Hospital earning $90,000 to $100,000 per annum.
In January 2016 Mr O’Keefe returned to work at the War Memorial as an employee of Spotless Management Services Pty Ltd (Spotless) undertaking project management work. He states 10% of the work was hands on work. Otherwise, he oversaw design and engineering projects which included meeting stake holders, preparing the scope of works, overseeing the tender process and awarding the job which he then oversaw until completion. He states he oversaw multiple projects and day to day worked face to face with many people. He also completed a Diploma in Project Management. Mr O’Keefe states the role was ideal for him.
Mr O’Keefe joined the NSW Rural Fire Service (RFS) as a volunteer, Burra Brigade on
15 December 2012. He states he enjoyed the hard work, the sense of community and camaraderie. Mr O’Keefe described himself as an asset to the RFS as he was responsible for maintenance of the trucks, the shed, improved training and facilities. He qualified as an RFS driver and a bush firefighter, as an advance firefighter, as a village firefighter, as an off-road and on road driver, as a crew leader Wildfire, a crew leader Village, and a crew leader Supervision. He held the ranks of Deputy and Senior Deputy Captain at the Burra Brigade. He participated in meetings, training, hazard reduction, maintenance and community education events. Mr O’Keefe says he has been the Permit Officer, the Equipment Officer and the Training Officer.
Mr O’Keefe described his passion for cars particularly for older cars such as those manufactured in the 1960’s and 1970’s with manual transmissions. He learnt how to strip a car down, and conduct a major rebuild including both mechanical and electrical repairs. He spent time on weekends and in the evenings working on his car projects. By early 2017 he was finishing off his 1966 Mustang Fastback. When questioned Mr O’Keefe stated he spent on average 8 to 15 hours per week restoring cars before the accident.
Mr O’Keefe states he has many skills including carpentry, painting, landscaping, welding, some plumbing and electrical work. He has built sheds, undertaken concreting and painting work.
Mr O’Keefe landscaped the first property he and Dr Flapper owned. He also renovated the bathroom including tiling, waterproofing, grouting, painting and replacing the lighting. He undertook gyprock repairs and repainted the house inside. He assisted in the installation of new carpet and installed a combustion fireplace, including a chimney and hearth.
In 2000 Mr O’Keefe and his wife bought a house at Picton. He undertook a complete renovation of the property, working at nights and weekends. He states he knocked down walls, installed ceilings and insulation, gyprocked and painted. He installed timber flooring, and replaced the kitchen and bathroom, although a contractor provided the kitchen cupboards. He also installed a fully ducted and zoned air conditioner. Mr O’Keefe bult an extension to the Picton house including the groundwork, the concreting, drain work, framework, electrical work, flooring, gyprocking, internal painting and air conditioning. He also renovated the lounge area, taking out a wall between the garage and the house and converting the garage to a sunken lounge. He landscaped the gardens on the 1.6 acre property using a bob cat and shovel, built a raised vegetable bed, built a chicken coop and cleaned the gutters. With help from a friend and his wife he built a 100 square metre deck at Picton.
Mr O’Keefe renovated the Burra property including the installation of gas ducted heating. He built two sheds, about 135 square metres each, performing about 90% of the work.
In his statement Mr O’Keefe stated during his marriage he did most of the outside work. Due to his wife’s work he became the primary carer for Leilland, assisting him with homework, driving him to and from school, to and from music and sporting commitments. He attended all school performances including choir and also attended parent/teacher evenings.
He stated once living at Burra he undertook a greater share of the cooking, shopping, washing, house cleaning and kitchen work as well. He noted his wife’s work involved long hours, and interstate and overseas travel. He stated he spent about 90 minutes a day on household tasks. He also stated he did more of the finances, bills and his tax returns.
Mr O’Keefe stated he did almost all the upkeep of the house and yard. He used the ride on mower for six to seven hours a week in summer and an hour or two in winter, cleaned up broken branches and leaf litter to prevent fire hazards and cleaned the gutters three times a year. He sprayed weeds with a 30l spray unit which took about three hours for about eight days a year. He also used a whipper snipper around the house and spent about one hour per week on the back garden and one hour per week on the front garden. He and his wife both worked on the veggie patch all year round.
Mr O’Keefe states he undertook house painting on each property he has owned. He stated the house at Burra was due to be painted about 2020 or 2021.

The accident

Where liability has been admitted there is no need to consider the circumstances of the accident in detail. However, I consider the events to which Mr O’Keefe was exposed on
17 February 2017 inform the extent of his ongoing psychological injury and I provide a summation of those events as described by Mr O’Keefe in his statement.
On 17 February 2017 Mr O’Keefe responded to an emergency fire in Carwoola as the crew leader in RFS Truck Burra 2. Mr O’Keefe had got out of the RFS fire truck to converse with a crewmember of a Fire and Rescue Truck and was walking back to his own truck when he noticed a wall of flames which he described as over 100m high. He ran between two fire trucks and when he realised he would not have time to open the door and climb into his fire truck he ran towards the back of the truck so he could get underneath it to shield him from most of the flame and heat knowing he would be protected by the spray bars. Before he could dive to the ground for safety a fire truck hit him. He realised he was pinned between two fire trucks. He couldn’t move his hips, or legs or feet. He states he saw the wind blowing the fire and waves of embers across the road and was “in absolute terror”. The spray bars had not come on. Mr O’Keefe had his arms free and unsuccessfully tried to push the truck off him. Whilst he screamed for help and was banging on the side of the truck with his right hand there was no response. Mr O’Keefe said he thought he was going to be burnt alive, or that he would die from a crush injury if the fire didn’t kill him first. He then felt the truck move again causing intense pain. He could not move his lower body at all. He attempted to use his left hand to try and push the truck away but felt his hand burning against the hot metal of the truck. He described the wind howling; he could not hear himself scream. He described the pain all over his body as extreme and he felt like he had been there for hours and it was never going to stop. He thinks he eventually passed out before raising his head, noticing the wind had died down and he was wet, the spray bars having come on. The truck was finally moved and Mr O’Keefe was transported by ambulance to Canberra Hospital.
In the Personal Injury Claim form dated 12 December 2018 Mr O’Keefe reported he had sustained the following injuries:
“● 2^nd degree burns (left hand);
·        3^rd degree burns (right arm, shoulders and back);
·        soft tissue damages (hips, pelvis, groin, stomach, back and sides);
·        bruising (hips, pelvis, groin, stomach, back and sides);
·        abrasions (right hip and right side); and
·        PTSD.”

Post-accident history

Mr O’Keefe was released from hospital on 18 February 2017. He reported his back and shoulders were painful from the burns and his left hand was throbbing and bandaged rigid. His back and hips were very painful from being crushed. His wife took two weeks off work to provide him with care day and night. Mr O’Keefe stated he became obsessed with finding out what happened in the fire. He had nightmares about the fire and being trapped between the trucks. He was ungrateful for the help he was given, he had angry outbursts, and felt enraged for no reason. He was hyper-reactive and restless.
In early March he was referred to Tamra Silick, clinical psychologist. Mr O’Keefe continues under her care. She diagnosed post-traumatic stress disorder.
Mr O’Keefe returned to work on restricted hours on 4 March 2017 even though he continued to experience significant pain, was not sleeping, suffered from anxiety and was exhausted.
Mr O’Keefe was questioned about the hours worked following his return to work. His recollection was that he only worked two days a week, and initially only four hours a day although the contemporaneous records of Dr Reid, GP suggest he was working five days a week for 6.5 hours per day.
After eight weeks his hand was unbandaged but he continued to wear a glove. In April 2017 Mr O’Keefe says he was referred to Dr Rudzki for the ongoing muscle, joint and spinal pain.
Mr O’Keefe’s recollection was that he worked for up to five days a week for brief periods only. However, when questioned Mr O’Keefe did not quibble with the suggestion that in accordance with Dr Reid’s records he returned to full time work by 28 July 2017 but left early if he was tired. When questioned about the contemporaneous records which suggest he was working full time hours in mid-2019 but certified to take a day off or leave early if he was not physically or psychologically coping Mr O’Keefe responded, “yes I wasn’t coping” but did not concede he was working full time hours.
Mr O’Keefe said he returned to his hobby of restoring old cars, whilst his hand was still bandaged following the accident. He considered it a form of rehab. At the time of the accident there was not much left to do on the restoration of the 66 Mustang and he was able to complete it in late 2017. Mr O’Keefe stated tasks which pre-injury took an hour might now take three or four hours interspersed with rests. When questioned Mr O’Keefe conceded the Mustang 66 he completed following the accident won a number of awards, a testament to his skill as a car restorer.
Mr O’Keefe stated he became reluctant to leave the house in his time off and missed attending his son’s school events and parent teacher interviews. He described raging at his wife and son, and whilst concerned that he was tearing them apart said he didn’t know how to stop.
Mr O’Keefe returned to the RFS in 2017. Indeed, he was the Captain of the Burra Brigade from May 2020 to March 2022. He states at that time he was one of only a few with the pre-requisite qualifications and if he had not done so the Brigade may not have had a local resident Captain. In his statement Mr O’Keefe states in the 20198/2020 fire season, he went to around half the fires. He stated he generally only responded to call outs, especially when there was no other driver or crew leader to respond. He states he ceased his active training role, he ceased attending community events, he gave up the role of equipment officer although he took on the role of Permit Officer. Mr O’Keefe states his pain affected his ability to drive the RFS trucks and to perform fire fighter activities but he felt the Brigade was relying on him.
Continuing into 2018 and 2019 Mr O’Keefe states he found himself unable to cope with his work with the War Memorial. He did not work full time and his attendance was sporadic. Eventually he started to take Wednesdays off work. He became angry at people, he could not sequence tasks and he didn’t like talking to people. He stated small issues became major issues and he had difficulty dealing with the myriad disputes which arise in project management. He described himself as agitated and distrustful and found himself in confrontation with people. Mr O’Keefe stated he couldn’t commit to finish things and projects he should have done were given to others who were less qualified or experienced. He was reactive, and argumentative. He did not trust people and developed paranoia about people backstabbing him and going behind his back.

Mr O’Keefe reported since the accident he had memory problems and difficulty with communication, with finding words. When asked whether he had similar problems before the accident Mr O’Keefe recalled he had similar difficulties a few times before the accident which led him to attend his GP who sent him to see someone. He agreed he saw Dr Andrews in Canberra in December 2016 and Dr Baxter diagnosed expressive dysphasia.
Mr O’Keefe stated he missed out on two promotions, one as a Building Manager at the War Memorial and the other a full time government job with better conditions with the Department of Defence.
In December 2019 Mr O’Keefe resigned from his job at the War Memorial. He stated in early 2020 he secured a job with TSA Management (ACT) Pty Ltd (TSA) which did not eventuate due to COVID-19. Mr O’Keefe said he sought a further role in project management because he wanted to see if the difficulties he had experienced were just the work or whether it was the work and the environment.
Mr O’Keefe was questioned about the circumstances in which he resigned from Spotless. On 10 December 2019 the clinical records of Dr Liew reported he was back from Las Vegas and “had a good holiday” and “has annual leave from next wed till early Jan [sic]”. When it was put to Mr O’Keefe that he did not resign until 2020 he replied unequivocally, “No”.
Mr O’Keefe was asked how much time he spent volunteering in late 2019. He reported attending monthly meetings, a callout per month and may have helped with training, although he acknowledged that became a terrible season for bush fires.
In April 2019 he had registered an ABN for his business Hermits Resto Shop. After he left the War Memorial he worked in his own business undertaking restoration work on cars manufactured in the 1960’s and 1970’s.
Mr O’Keefe agreed in 2020 he built an additional shed of about 65 square metres to store customers cars. He said friends and family assisted in the build but agreed he placed fill using a tractor, poured concrete, helped level concrete on his knees or crouched and put panels together.
Between July 2020 and March 2021 Mr O’Keefe worked as a project manager on a casual basis with TSA earning $80 per hour inclusive of superannuation. His hours fluctuated. He stated he found the work exhausting and difficult but was able to work from home most of the time, rest when needed and his employer made allowances for him. Mr O’Keefe stated he had large numbers of people to deal with and he found he could not handle those interactions.
Since ceasing work with TSA Mr O’Keefe has continued to work from home operating his car restoration business. He said he works 26 hours per week although he might work 6.5 hours over 9 hours because he needs to take breaks. He described his net profits as marginal because he cannot work because of his pain levels, his inability to focus, his inability to complete tasks, his lack of concentration and memory, and his exhaustion. Mr O’Keefe stated he quotes for the time it should take him to complete a restoration even though it takes him roughly three times as long as that to complete. Mr O’Keefe stated he generally had two vehicles for restoration a year and he also undertook a number of smaller jobs.
Mr O’Keefe agreed in 2020 he completed work on a 1967 Mustang owned by Bede Wright. He agreed Mr Wright provided an endorsement for his work including for the timely manner in which it was completed, although Mr O’Keefe said the work was completed with the assistance of a friend Matthew who was paid directly by Mr Wright for his work.
When questioned Mr O’Keefe agreed that car restoration was heavy work where it may require building a car from the ground up. He stated he gets help with heavy tasks, but agreed he had a lifting capacity of more than 20 kg. He agreed the work required bending, reaching, crouching and moving around.
Mr O’Keefe purchased equipment to help with manual handling and lifting. The cost of that equipment is part of his claim. When questioned Mr O’Keefe said the equipment was to enable him to be more professional but also to address his physical disability.
In addition to restoration work Mr O’Keefe said in about March, April and May 2024 he undertook work on a fleet of vehicles for Affinity Constructions Australia, which comprised small body repairs on Ford or Holden utility vehicles. His son did some of the work under his instruction, although only for a short period of time before he moved to Queensland in April 2024.
Mr O’Keefe was questioned about the invoice which includes GST. He believed his accountant had registered his business for GST a year or so ago. However, Ms Dinkha was able to demonstrate that he was not registered for GST. Mr O’Keefe indicated he relies on his accountant to prepare his tax return. He stated he was very disorganised with billing.
Ms Dinkha pointed out that an invoice to Affinity Constructions in respect of repair work during the period 1 March to 7 May 2024 was issued on 8 May 2024, the day after the work was completed. In response Mr O’Keefe stated that when he is broke, he goes out of his way to issue invoices.
Mr O’Keefe said the property at Burra comprises 16 acres, of which eight to 10 acres is cleared or semi cleared. Mr O’Keefe provided photographs of his house which he described as a wreck. He stated since the accident his wife has taken on a lot of the tasks he used to do prior to the accident including 90% of the cooking, most of the housework, gardening, the chickens, the bills and the tax returns. A cleaner, Vanessa Lee Merrit was employed for a period of time and Mr O’Keefe employed his son Leilland who operates a business Handyman Lando to undertake car work, handyman work, gardening and yard work that
Mr O’Keefe says he cannot do due to his injury.
Whilst he can use a ride on mower Mr O’Keefe stated riding over the rocky undulating ground aggravates his back pain. Additional tasks which need doing which Mr O’Keefe stated he would have undertaken uninjured include:
·        painting the outside of the house;
·        using a small tractor to grade the unsealed 200m driveway;
·        handyman work;
·        landscaping at the rear of the house, and
·        replacing the fencing around the house.
Mr O’Keefe describes being angered by the slightest challenges, experiencing short term memory loss and loss of self-confidence. He is easily irritated, becomes depressed, feels overwhelming anxiety and finds it difficult to make decisions. Both Mr O’Keefe and
Dr Flapper referred to post it notes left by his wife around the house as reminders. He described being obsessed with his feelings and his pain. Mr O’Keefe says he no longer has positive feelings; he feels numb.
He states before the accident he was motivated by keeping busy, and he and his wife enjoyed the property. He states he is now bitter and feels like he has the bones of an old man. Mr O’Keefe has difficulty sleeping due to pain and depression and the effect of the medication he takes. He no longer experiences flashback type nightmares but several nights a week he has complex dreams where he is trapped and cannot escape. He uses Valerian to sleep.
He continues to have trouble getting out of bed, in organising and motivating himself and in focussing. Mr O’Keefe no longer likes to socialise. Before the accident he attended dinners and parties with his wife and attended Christmas in Sydney with his wife’s family. For the last six years Mr O’Keefe has stayed home by himself whilst his wife and his son Leilland have gone to Sydney on Christmas Eve. Mr O’Keefe says he no longer wants to talk to people. He continues to get angry very quickly and snaps at his wife and son.
Mr O’Keefe and Dr Flapper described a very healthy sex life before the accident over a period of about 26 years but sex is now rare, not only by reason of back pain but also because of the effect of the antidepressant medications on his libido and sexual functioning.
Mr O’Keefe states he was detached from his wife when she was diagnosed with breast cancer in 2020 and again in February 2023 when she required urgent surgery for a cyst on her spinal cord. He stated from time to time his wife goes away to get a break from him.
When questioned Mr O’Keefe described constant pain in his lower back, lower buttocks and hips and left leg. In relation to his mental state Mr O’Keefe suggested it had plateaued. He is now handling things well and does not have the same deadlines he faced as a project manager.
Mr O’Keefe described difficulty with driving for any period over 20 to 30 minutes. He described increased pain in the back and hip and can only drive for longer periods with rest breaks. He finds using a clutch painful. Mr O’Keefe stated following the accident he replaced his manual vehicle with an automatic but several years ago purchased a manual utility because it was a good price and it had a lifting device on the back. He said he copes with it because he only goes out about twice a week.

Evidence of Therese Flapper

Dr Therese Flapper provided a statement dated 28 May 2024 and gave oral evidence at the assessment conference.

Pre-accident history

Mr O’Keefe and Dr Flapper have been in a relationship since the age of 16 and married since 1991. They have one son Leilland who is now 22 years of age. She described a strong marriage with good communication and a frequent and connected sex life.
At the date of accident Dr Flapper worked as Associate Principal of Arup, a design engineering firm based in Canberra with offices throughout Australia and the world. She travelled extensively and was away from home for about 30 weeks out of the year. She described the claimant as extremely supportive of her career.
Dr Flapper stated before the accident she and the claimant enjoyed travelling together, going to the movies, dinners, concerts, car shows and seeing friends. Almost every Christmas they travelled to Sydney to stay with family.
Dr Flapper described the beautiful meals the claimant made including Christmas dinner for the entire family. He was the primary carer for Leilland because Dr Flapper often travelled for work. Mr O’Keefe took Leilland to and from school to basketball and soccer practice and also to music practice. He attended Leilland’s music concerts and was very involved in his life.
Dr Flapper stated the claimant was responsible for almost everything around the house because of her work commitments. She said the claimant did the cooking, cleaning, washing and shopping. When she was home they shared the household tasks 50/50 but when she was away the claimant did more.
Dr Flapper reported before the accident the claimant worked on renovating vehicles, on weekends and after work. She stated he was strong and capable of doing the physical work involved.
Dr Flapper stated the claimant spent many hours mowing the grass, spraying weeds, maintaining the back gardens, cleaning up fallen leaves and branches and helping in the veggie patch. He also cleaned the gutters.

Post-accident history

Following the accident on 17 February 2017 Dr Flapper took two weeks off work to care for the claimant including changing his dressings and assisting him with personal care.
She drove Mr O’Keefe to nearly all medical appointments for the first three to six months post-accident and sat through them with him. Dr Flapper stated she needed to arrange his life because he forgot what medical advice he was given and what medications he had to take and when.
In relation to the claimant’s work at the War Memorial Dr Flapper stated he left early, he was dazed and became enraged by the smallest thing at work. She stated he lost his soft skills with people and his ability to be organised.
Dr Flapper stated it was agreed he should undertake car restoration work as a job because he could take his own time and would not be under pressure. He works up to 26 hours per week but usually does six or seven hours a day in two to three hour bursts for three or four days. She said he is very unproductive and lacks focus. He has white boards and notes everywhere and the workshop is a mess. Dr Flapper described the claimant’s memory as completely shot, even with reminders and post it notes. She said he often stops for breaks and lies down on the ground. The claimant forgets what he was meant to do next or he loses tools or parts. She said there are a gazillion things which are not finished. Even though
Dr Flapper said she helps the claimant in the shed with manual handling and other tasks for four to six hours a week she stated he needs a lot more help and support. Dr Flapper stated a lot of money was put into the business to purchase equipment to enable him to work and that the expenses had outstripped the income. She said he was two to three years behind in completing cars.
Dr Flapper said Mr O’Keefe is rude and confrontational in conversations and is no longer able to string thoughts together. Dr Flapper said it became hard to be around the claimant. He was angry and verbally abusive. She described him as completed absorbed with himself and what had happened to him such that he forgot about things around him. He ceased being present for his son and stopped going to his basketball or soccer games. He stopped going to his music concerts and performances. He became uninvolved in Leilland’s life and became harsh and negative towards him. Tellingly, Leilland described the claimant as “a miserable asshole”.
Dr Flapper states that Mr O’Keefe no longer shows her any affection and often does not even acknowledge her. She states the claimant doesn’t seem to care, and that neither Leilland nor herself seem to come to mind for him. She said there is limited communication. She suggested their relationship is so burdened by the accident and his anger she does not know if it can survive. She states “He is self-absorbed. I get the leftover broken bits, the anger, the swearing and the lack of caring” and “John talks obsessively about himself and his exhaustion and his pain and his complaints. I call them his rants”. Dr Flapper stated she and the claimant now have very little sex or physical contact. Dr Flapper described Mr O’Keefe as dismissive and unsupportive when she was diagnosed with breast cancer in 2020.
Dr Flapper stated since the accident the claimant helps with cooking and most of the grocery shopping but does little else. She now does all the washing, cleaning and cooking. She said, “John can’t really be bothered to do it anymore”. Dr Flapper said the claimant cannot look after himself anymore.
She stated he doesn’t do anything around the yard anymore, noting the painting, fencing and landscaping have been neglected for years. The house has not been properly maintained and she described the property as a mess. She said the house needs a paint job, the fencing needs to be redone and the landscaping needs to be done. These are things she said the claimant did before the accident.
Dr Flapper stated she had turned down a promotion by Arup in early 2019 because she felt it was impossible for the claimant to look after himself and the home without her presence. In May 2019 she stated working for TSA as the general manager based in Canberra. She took the role because she was not required to be away from home for long periods of time. In January 2024 Dr Flapper commenced self -employment as the principal of TGFactor Pty Ltd working from home.
Dr Flapper stated Mr O’Keefe found it difficult continuing in his role with the RFS. She said before the accident he was good at it, proactive and able to lead others. Since the accident he has seen his role more as backup.
Dr Flapper states she sees the claimant groaning and wincing in pain. She said he takes Panadol and Nurofen two to three times a day.

Letter from Viral Gandhi, Associate Director of TSA

In a letter dated 20 May 2022 Viral Gandhi, Associate Director of TSA stated Mr O’Keefe was contracted by TSA to work two to three days a week earning $80 per hour which he stated was the equivalent of approximately $150,000 per annum based on a full-time workload. He worked from July 2020 to March 2021.
He reported the claimant was retained to identify defects at a recently finished retirement village, liaise with staff, residents, contractors and manage the process. He reported
Mr O’Keefe was able to make his own hours, start and finish and rest when needed to accommodate his impairments.
He reported he was slow to finish work and in December 2020 reported he was unable to continue in the role due to his injuries but would continue to assist in handover to someone else.
Mr Gandhi stated if the claimant had been fit psychologically and physically he would have been offered a full time role with TSA due to his construction industry experience and expertise. He stated the salary for a full time Senior Project Manager would be between $130,000 and $150,000.

Treating medical evidence

The ambulance report stated Mr O’Keefe denied any loss of consciousness but reported injuries to his pelvis with abrasions on both side of the pelvis. He had a partial thickness burn with blisters to his left hand, blisters on his right shoulder and reported he sustained burns to the hand from trying to push the truck off his body.
At Canberra Hospital the primary diagnosis was left palmar superficial partial-thickness burn, right shoulder and back superficial burn. He underwent a number of observations. The X-ray of the chest showed nil obvious fractures, nil pneumothorax. An X-ray of the pelvis reportedly showed nil obvious fractures, nil SIB or pubic symphysis separation. A CT of the abdomen and pelvis reported nil intraabdominal pathology and nil fractures. The hospital also noted tenderness in the left iliac fossa, the LS left paravertebral muscles and the left hip.
Mr O’Keefe had reduced range of movement of the left hip secondary to pain. An Acticoat dressing was applied to the left hand. Mr O’Keefe was discharged the following day.
Mr O’Keefe consulted his GP Dr Kate Reid at Brindabella Family Practice on
22 February 2017. On 10 March 2017 Dr Reid referred Mr O’Keefe to a psychologist.
Mr O’Keefe saw Tamra Silick, clinical psychologist on 15 March 2017. She administered the Beck Depression Inventory and diagnosed a major depressive disorder. She recommended cognitive behavioural therapy (CBT). In an Allied health recovery request (AHRR) dated
21 March 2017 Ms Silick reported Mr O’Keefe had completed his first day of 6.5 hours on 20 March 2017 and felt very tired after work. She reported he planned to work 6.5 hours for five days a week.
On 22 March 2017 Ms Silick reported he met the full diagnostic criteria for post-traumatic stress disorder.
Mr O’Keefe was also referred to David Witheriage physiotherapist. On 29 March 2017 he reported following four treatment sessions the left hip and lumbar/lower rib pain had reduced.
Mr O’Keefe saw Dr Rudzki, sports and exercise physician for the first time on 20 April 2017. At that time Mr O’Keefe was still on oxycodone. He diagnosed soft tissue injuries only.
On 6 June 2017 Mr O’Keefe underwent an MRI of the lumbar spine. The report noted mild desiccation of the L2/3, L3/4 and L4/5 intervertebral discs and bilateral L5 pars defects with grade 1 spondylolisthesis and left L5 nerve root compromise due to foraminal narrowing.
On 11 July 2017 Dr Rudzki reported Mr O’Keefe still had constant and unrelenting central low back pain which he thought represented discitis. Mr O’Keefe underwent a 90-day course of antibiotics to treat the discitis.
Mr O’Keefe underwent exercise physiology with Jonathon Beale. In a report dated
28 July 2017 addressed to Dr Reid he reported the claimant was making steady improvement in lumbopelvic stability, strength and stability. He noted the biggest aggravator of pain was prolonged sitting or forward flexed positions.
On 18 October 2017 Dr Rudzki reported he remained concerned about the claimant’s diminished cognitive function and on 13 June 2018 he reported deficits in working memory had persisted and caused Mr O’Keefe significant distress.

On 4 December 2017 Dr Reid reported both golfer’s elbows and back to be treated.
On 12 December 2017 Dr Rudzki reported the facet pain and left piriformis pain were responding well to remedial massage and physiotherapy. On 13 June 2018 he reported the upper back pain had settled with the remedial massage although Mr O’Keefe had persisting left-sided low back ache which he thought was most likely chronic capsulitis of his L5/S1 facet joint.
In a report dated 28 March 2018 Ms Silick diagnosed major depressive disorder and post-traumatic stress disorder. She stated Mr O’Keefe reported symptoms of intrusion/re-experiencing, changes in mood and cognitions, loss of interest and pleasure in activities, trouble feeling positive feelings, and hyperarousal including irritability, difficulty concentrating/memory problems and disturbed sleep. She reported an increase in symptom severity, particularly intrusive and avoidance symptoms following his attendance at an active fire in January, however, those symptoms had diminished. She noted the overall trajectory of symptoms has followed a downward trend. She reported emotional numbness and a sense of “not being able to feel” positive feelings impacting on his ability to connect with his loved ones as well as feeling guilt and shame.
Mr O’Keefe attended Ms Passfield, exercise physiologist for treatment of his post-traumatic stress disorder, although on 3 August 2018 Ms Passfield also factored in “occasional lower back/SIJ (sacroiliac joint) pain” into the exercise programme. On 21 September 2018
Ms Passfield reported Mr O’Keefe reported low motivation to exercise and little to no change in memory.
Mr O’Keefe saw Dr Sava Javed psychiatrist on 25 September 2018. He reported the claimant has to use post-it notes to remind himself of things he needs to do. Dr Javed reported ongoing symptoms of poor concentration, being easily distracted and difficulty going to sleep. He reported he likes building cars but had not been able to complete them fully due to lack of motivation and increasing pain. Dr Javed diagnosed chronic post-traumatic stress disorder, major depressive disorder and an adjustment disorder with depressed features. He suggested an increase in medication.
On 24 October 2018 Dr Rudzki reported an increased dose of Rivastigmine had not caused a dramatic improvement in cognitive functioning but noted some improvement in short term memory. On 14 November 2018 Dr Rudzki recommended neuropsychological assessment.
Dr Rudzki referred Mr O’Keefe to Dr Wayne Reid for neuropsychological assessment on
17 December 2018. Having regard to an MRI of the brain of 21 June 2019 which showed no intracranial pathology and Mr O’Keefe’s history he concluded his ongoing problems were due to an adjustment disorder with depressed mood. He recommended continued treatment with his clinical psychologist and referral to a psychiatrist to review his medications.
On 14 May 2019 a Certificate of Capacity signed by Dr Lieu certified Mr O’Keefe fit for work five days a week for 7.6 hours per day or less if not physically coping with being at work. The certificate also included the endorsement, “Due to ongoing PTSD and lower back and L leg pain if John is not physically or psychologically coping at work he should be encouraged to leave early or take the day off. Has short term memory issues”.
On 30 May 2019 Dr David Poland GP reported Mr O’Keefe had tripped and fallen whilst doing a hazard reduction burn on 24 May 2019. He grazed both knees.
On 20 June 2019 Dr Liew GP reported Mr O’Keefe was accompanied by his wife. The clinical notes record:
“… John is working in Spotless – project manager
Wife has spoken to employer
Often find that John is not really productive for a few hours a day
Usually takes only a few hours/half hour off if he is really feeling down
Doesn’t realise what triggers it
There are times when he decides to take a day off
…
Getting more easily mentally worn out, not as effective as he was
Slightly more overwhelming
…
Discuss probably best to have a day off each week for self-care and recovery.”
On 21 June 2019 Ms Pasfield reported Mr O’Keefe had transitioned to an independent program. She also stated, “He reports lacking motivation towards this form of exercise in general but is quite active throughout his hobbies and lifestyle with property handy work and car maintenance activities”.
On 25 June 2019 Ms Sillick reported Mr O’Keefe was experiencing an increase in anger/rage feelings affecting both his social and interpersonal relationships. She also reported anhedonia and numbness. Ms Sillick thought the RFS was a contributing factor to the increased anger and rage and suggested reducing or ceasing his involvement with the organisation.
On 31 October 2019 Dr Liew reported:
“In the last week
Work is driving him nuts
Over how ppl behave
Is hoping he can seek a for a new job
ppl arm him not taking responsibilities over their mistakes
ad he got blamed twice for mistakes
triggering worsening mood in himself [sic]”
On 30 January 2020 Dr Lieu reported Mr O’Keefe was in better spirits as he was leaving his old job and getting a new one lined up.
Mr O’Keefe saw Dr Padmakumar Prabhakaran, psychiatrist for the time on 30 April 2020. He reported he has become irritable, snappy, hypervigilant, and avoiding people.
Dr Prabhakaran reported whilst Mr O’Keefe still engaged in some volunteering firefighting along with his wife he becomes anxious and easily agitated when he does so. He reported his main issue was his short term memory loss, he finds it hard to focus and concentrate. He reported he was easily distracted. He also reported a lack of energy, lack of interest in things and impaired motivation. He also reported side effects of the medication including loss of libido and erectile issues. He diagnosed post-traumatic stress disorder and major depressive disorder complicated by pain issues and made some changes to the claimant’s medication.
On 20 November 2020 Dr Prabhakaran reported amotivation was a major issue. Mr O’Keefe reported his energy levels were better in the afternoon but he felt overwhelmed doing both project management and car restoration. He reported a major issue was the impact on his sexual life which was impacting his relationship. On 24 February 2021 Dr Prabhakaran also reported the presence of residual symptoms of post-traumatic stress disorder especially cognitive deficits related to executive function and emotional blunting.
On 17 June 2021 Mr O’Keefe was reviewed by Dr Rudzki who reported a progressive worsening of the back, buttock and left leg pain. He also reported Mr O’Keefe was forced to leave his job at the War Memorial and was self-employed. He reported marked morning ache and stiffness and an inability to sit or stand for any length of time might be suggestive of a seronegative sacroiliitis. He recommended Indomethacin and nerve blocks around the facet joints.
Given the sexual side effects from the medication Dr Prabhakaran recommended Mr O’Keefe undergo transcranial magnetic stimulation for the depression and post-traumatic stress disorder. That treatment was administered by Dr Jeffrey Adams, neuropsychiatrist. On
20 September 2021 Dr Adams reported Mr O’Keefe had undergone 29 sessions with no improvement.
In 2021 Mr O’Keefe was referred to Dr Roopa Gawrikar, pain specialist. He underwent various procedures including diagnostic medial branch block for the left L4/5 and L5/S1 facet joint, radiofrequency ablation and percutaneous electrical nerve stimulation (PENS) and a platelet rich plasma (PRP) injection to the left sacroiliac joint. In a report dated
12 January 2022 Dr Gawarikar reported tenderness over the left sacroiliac joint and recommended a trial of norspan patch. On 12 August 2022 Dr Gawrikar reported a positive, albeit short-lived positive response to a left sacroiliac joint diagnostic block.
On 20 July 2022 Dr Prabhakaran reported Mr O’Keefe had quite his volunteer role with the RFS. Mr O’Keefe identified the impact the accident had on his role as a father. He reported he struggled with sleep, particularly initial insomnia and dreams in which he is trapped and unable to escape. His wife reported he had changed as a person and had become socially aloof with limited interaction with other people. On 15 September 2022 Dr Prabhakaran reported Mr O’Keefe’s concentration had worsened as well as his sexual side effects after initiating Duloxetine. He was frustrated by the legal process, had residual symptoms of post-traumatic stress disorder including flashbacks, avoidance and safety behaviours and was working 26 hours per week in his car restoration business.
On 22 June 2023 Dr Prabhakaran reported an exacerbation of post-traumatic stress disorder symptoms after reading the report of the vocations assessment. He reported nightmares, feeling trapped, irritability and reduced stress tolerance. He finds it hard to trust people and his social anxiety remains. He was concerned about sexual side effects. Dr Prabhakaran reported Mr O’Keefe was more anxious and agitated than before, distressed, angry and depressed. On 3 August 2023 Dr Prabhakaran reported sexual side effects improved with Valdoxan however, his mood became more unstable, he became agitated, angry and reactive to things around him. He ceased the Valdoxan and his mood improved. Whilst he scored highly on the post-traumatic stress disorder checklist Dr Prabhakaran reported he was able to function well.
In a Certificate of Capacity dated 6 June 2024 Dr Baxter certified Mr O’Keefe had the capacity to work four days a week for 6.5 hours per day or less if not physically coping with being at work, with one day off every week for self-care and recovery. The certificate was endorsed with the following restrictions:
·        lifting/carrying capacity: 15 kg;
·        sitting tolerance: move if needed if pain worsens;
·        standing tolerance: move if needed if pain worsens;
·        pushing/pulling ability: take breaks if needed if pain worsens;
·        bending/twisting/squatting ability: avoid repetitive bending, avoid repetitive twisting, and
·        driving ability: to take breaks as needed – avoid prolonged drives – take breaks.

MEDICAL ASSESSMENT CERTIFICATES

Medical Assessor John Giles

Medical Assessor Giles issued a certificate dated 18 September 2023. He diagnosed superficial burns to the left and right shoulder, upper trunk and arms and the palm of the left hand, all of which had healed with no evidence of scarring, as a result of the accident.

Medical Assessor Jonathan Herald

Medical Assessor Herald issued a certificate dated 14 December 2023. He diagnosed a soft-tissue aggravation of underlying lumbar spondylosis; aggravation of underlying L5 pars defects; soft-tissue injuries to the thoracic spine, chest, both shoulders, both hips, both arms and legs with subsequent resolution; and burns to the left hand and right shoulder which were caused by the accident.
In relation to the lumbar spine, Medical Assessor Herald noted that underlying spondylosis was present prior to the accident as a result of the L5 pars defects, however it was “significantly aggravated” as a result of the accident.
Medical Assessor Herald assessed a 5% whole person impairment (WPI) in relation to the injury to the lumbar spine. He assessed the remaining injuries at 0% WPI.

Medical Assessor Edward Korbel

Medical Assessor Korbel issued a certificate dated 25 September 2023. He found that the claimant suffered from “sexual dysfunction, loss of libido, erectile issues, anorgasmia, delayed ejaculation caused by pain, psychiatric disability and medication” which he stated were “recognised side effects of Duloxetine”, a medication which the claimant was taking for the mental health problems which had been caused by the accident. He did not assess the injury to the claimant’s reproductive system.

Medical Assessor Alexey Sidorov

Medical Assessor Sidorov issued a certificate dated 26 November 2023. He described the claimant’s presentation as dishevelled, he used multiple profanities and was crying and angry at times. He described his affect as angry and dysphoric.
He diagnosed the claimant as suffering from post-traumatic stress disorder noting his involvement in a life-threatening accident with the subsequent development of symptoms including nightmares and recurrent distressing memories of the accident. He also developed a persistent avoidance of stimuli associated with the accident, negative alterations in cognitions and mood and alterations in arousal and reactivity associated with the accident.
Medical Assessor Sidorov also diagnosed a major depressive disorder characterised by depressed mood most of the day, nearly every day, with markedly diminished interest and ability to derive pleasure from activities, appetite and sleep disturbance, fatigue and low energy, feelings of worthlessness, helplessness and low esteem and a diminished ability to think and concentrate. Medical Assessor Sidorov assessed the permanent impairment resulting from the claimant’s psychological injuries at 16% WPI.

THE MEDICO-LEGAL EVIDENCE

Dr Graham George, psychiatrist

Dr George assessed the claimant for the insurer and provided a report dated
1 October 2019. He diagnosed a post-traumatic stress disorder and a persistent depressive disorder caused by the accident.
He reported Mr O’Keefe was working four days a week and he did not think he could increase his hours at that stage. He recommended ongoing treatment from a psychologist and psychiatrist. He noted people suffering from post-traumatic stress disorder often do not have full resolution of symptoms.

Dr Robert Fisher, psychiatrist

Dr Fisher assessed the claimant at the request of his lawyers on 19 November 2019. He was working four days a week, eight hours a day for Spotless.
He reported Mr O’Keefe had returned to part time work with limited productivity due to pain and inability to focus. He was not able to work five days per week as he needed a mental and physical break for the week to make it through.
Dr Fisher reported Mr O’Keefe’s wife and son had to undertake domestic duties such as lawn mowing, weed spraying, garden care, garbage maintenance, household repairs and chores. He reported, “external house needed repainting, weed spraying not done, cobwebs not done, gutters not done, yard maintenance not done”. Unable to contribute to “running the household” such as taxes, payments, loans, superannuation and banking; now all done by wife.
Car restoration activities much slower, need to take lots of breaks and move positions.
Unable to contribute to parenthood and family life – wife essentially single parent. Next to no relationship with son and relationship with wife under stress. Moved away from friends and social circles and no longer attends school or family events. Sex life impacted by pain in back and legs, medications and their side effects and generally poor mental health.
He reported Mr O’Keefe had symptoms of post-traumatic stress disorder which had partly subsided. He reported he remained moderately depressed and stated the depression had the features of a major depressive disorder or an adjustment disorder with depressed mood. He concluded Mr O’Keefe was at risk of a re-emergency of post-traumatic stress disorder symptoms.
Whilst Dr Fisher stated in principle Mr O’Keefe could experience a complete remission of his depressive symptoms with medication and the passage of time, I note that the passage of time has shown that to be an unduly optimistic prognosis and remission has not occurred.

Dr Antonella Ventura, psychiatrist

Dr Ventura assessed the claimant for the insurer and provided a report dated
12 March 2021.
Dr Ventura reported Mr O’Keefe told her he cannot get to sleep until midnight or 2:00am and feels tired in the morning but is able to work until later in the afternoon. She reported a low libido which interfered with his relationship with his wife. He was socially withdrawn and lacked interest in socialising. He was unable to sustain feelings of joy. He was working four days a week.
She diagnosed a post-traumatic stress disorder and major depressive disorder caused by the accident. She reported he continued to experience significant flattening and detachment and felt the outlook for complete resolution of his symptoms was poor.
She concluded Mr O’Keefe would benefit from a combination of psychotherapy and antidepressant medication. She considered he had retained his capacity for employment as a firefighter. She noted he did not report any inability to carry out self-care activities or home duties.

Dr Thurairetnam Sivaruban, psychiatrist

Dr Sivaruban assessed the claimant on 17 April 2023 and provided a report dated
27 April 2023.
He reported Mr O’Keefe stated he is scared of standing close to a vehicle, of being trapped and being hurt again. He does not trust anyone. Dr Sivaruban reported Mr O’Keefe often dreamt of being trapped in a building or a closed space and not being able to escape. He is super alert and hypervigilant. He reported irritability which has placed strain on his relationship and low mood. He does not eat well. His sex drive is poor and he has lost interest in doing things. He lacks motivation and has poor concentration. He can no longer organise paperwork and pay bills and he makes mistakes in his work. He cannot relax and does not socialise at all. He is forgetful about his personal care and no longer undertakes activities at home other than cooking occasionally.
Dr Sivaruban diagnosed a post-traumatic stress disorder and major depressive disorder caused by the accident. He reported Mr O’Keefe was working 6.5 hours a day doing car restoration which he considered he could continue to do although he noted the chronic nature of his psychological symptoms may affect his work capacity and stop him from doing his regular work.

Dr Leon Le Leu, occupational physician

Dr Leu examined the claimant for the insurer and provided a report dated 18 February 2021. He diagnosed a “range of abrasions, bruising and burns” affecting the left hand, shoulders and abdomen from which the claimant had recovered following treatment with the exception of a loss of sensation over the left hand. He also diagnosed non-specific low back pain with weakness of left hip flexion; and “no clear evidence of left hip injury”.
Dr Leu found that the prognosis in respect of the burns was excellent. He considered there was equivocal evidence of nerve root involvement and an episode of discitis in the lower back but found the claimant was slowly improving. He found no clear injury to the left hip.
He reported Mr O’Keefe and his wife shared the housework but before the accident he did everything around the house, including riding the ride-on mower for six hours (he can now only manage 15 minutes) and using a backpack sprayer which he can no longer do. He assessed a 9% WPI in respect of the physical injuries. He reported Mr O’Keefe had not lost capacity for employment nor the capacity to be a firefighter.
He concluded Nurofen and Panadol will be required long term depending on his response to physiotherapy.

Dr Michael McGlynn, hand and plastic surgeon

Dr McGlynn assessed the claimant for the insurer and provided a report dated
26 March 2021. He diagnosed superficial burns to the right shoulder, right upper arm and palm of the left hand (thumb) which had fully healed.
Dr McGlynn stated that the scarring was visible but no longer caused any pain. Mr O’Keefe was conscious of the scaring but they caused no itch or discomfort. He considered the prognosis to be good.
Dr McGlynn stated the burn scars do not cause physical incapacity and do not affect the claimant’s ability to perform his pre-injury occupation of project manager or volunteer firefighter. He assessed a 2% WPI referable to the scarring.

THE RELIABILITY OF THE CLAIMANT’S EVIDENCE

I had the opportunity to assess Mr O’Keefe during the assessment conference. I formed the view he was an honest, straight forward witness who did not hesitate to make concessions against his own interest when questioned by Ms Dinkha.

However, whilst no issue was raised as to the claimant’s credibility, Ms Dinkha submitted that reliability does not mean credibility. Ms Dinkha referred me to Onassis v Calageropoulis v Vergottis [1968] 2 Lloyds Rep 403 where Lord Pearce explained the difference between the concepts at 431 where he stated:
“First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking by an overmuch discussion of it with others? Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
Ms Dinkha correctly pointed out that Mr O’Keefe conceded he had difficulties with his memory and in those circumstances submits I would place greater weight on the contemporaneous records, particularly where the accident occurred over seven years ago. Ms Dinkha also referred to the comments of Sackar J in Campbell v Campbell [2015] NSWSC 784 at [74] and [76] where he suggested that greater weight should be accorded to contemporaneous documents than the flawed attempts at recollection of facts by persons with an interest in the outcome of the litigation.
Where there is some discrepancy between the claimant’s recollection of events and the records of treating practitioners, I accept there may be a degree of unreliability in the claimant’s recollection of events given the accident occurred over seven years ago and given the nature of the psychiatric injury sustained.
I am satisfied based on the contemporaneous records that Mr O’Keefe did return to work on a full time basis by 28 July 2017 and having regard to the records of Ms Silick worked up to 7.6 hours per day for five days a week during 2018.
However, I am also satisfied that he found it increasingly difficult to cope; by May 2019
Dr Lieu encouraged him to take a day off or leave early if he was not coping; on
20 June 2019 Dr Lieu reported the claimant’s wife had spoken to his employer and he was not really productive for a few hours a day; on 31 October 2019 Dr Lieu documented further frustration with work; and in December 2019 he resigned.
I found the testimony provided by the claimant’s wife Dr Flapper to be persuasive and largely corroborative of the testimony of the claimant as to the impact of the accident upon him.

THE INJURY SUSTAINED BY THE CLAIMANT

There is no dispute that the claimant sustained the following injuries in the accident on
17 February 2017:
·        burns to the left hand and thumb;
·        burns to the right shoulder, right arm and back;
·        bruising to the abdomen;
·        soft tissue aggravation of underlying lumbar spondylosis;
·        injury to the left hip and left leg;
·        post-traumatic stress disorder;
·        major depressive disorder, and
·        sexual dysfunction.
Mr O’Keefe has recovered from the burns occasioned by the accident. Scarring is visible but no longer causes any pain.
Mr O’Keefe continues to suffer from chronic pain in the back, buttock, left hip and left leg. The remaining soft tissue injuries have resolved.
Mr O’Keefe continues to suffer from the impact of his ongoing post-traumatic stress disorder and major depressive disorder. In assessing the impact of the accident on the claimant it is necessary to consider the combination and interplay between the physical and psychological Injuries. Tellingly Dr Sivaruban comments:
“Ongoing chronic pain has been a contributing factor to his psychological state. Worsening physical pain often worsens his mood symptoms and makes him more irritable”
He also suffers from sexual dysfunction, loss of libido and erectile issues related to medication prescribed for his psychological illness.
Mr O’Keefe’s return to work for almost three years post-accident is consistent with the opinion of Ms Silick who reported on 28 March 2018 the overall trajectory of symptoms had followed a downward trend.
However, the contemporaneous medical evidence suggests that trend did not continue and on 14 November 2018 Dr Rudzki recommended the cognitive deficits be quantified by a neuropsychological assessment. Mr O’Keefe underwent TMS to help treat the symptoms of post-traumatic stress disorder and cognitive deficits associated with executive function and emotional blunting without success.
Whilst Mr O’Keefe had returned to full time work at the War Memorial and to his volunteer work with the RFS the increase in symptomatology as evidenced by the clinical notes of his GP, by Ms Silick and by Dr Prabhakaran led to a reduction in his hours of work and ultimately his resignation in December 2019. He thereafter attempted alternative work on a casual basis as a project manager with TSA between July 2020 and March 2021 but again found he could not cope with either the work or the interactions with people.
The claimant’s continued involvement with the RFS seems counterintuitive having regard to the traumatic nature of the accident. On 2 November 2018 Dr Javed reported attending callouts with the RFS had not aggravated or exacerbated the claimant’s condition and he recommended he continue with operational RFS duties. Certainly, it seems Mr O’Keefe was keen to resume his pre-accident activities following the accident including his volunteer work with the RFS and he continued to participate in those activities for over five years post-accident including as Captain from May 2020 to March 2022.
A summary of the RFS incidents attended by Mr O’Keefe reports he attended 11 incidents in 2018, 13 incidents in 2019, and nine incidents in 2020 more than in any year prior to the accident. However, in 2021 he attended seven incidents and in 2022 he attended four incidents between January and May when he ceased his involvement. Whilst the records of the RFS do not demonstrate any significant change in the claimant’s attendance post-accident Mr O’Keefe describes a lower level of participation and Dr Flapper who joined the RFS herself post-accident states the claimant saw his role more as backup.
Whilst the claimant has been able to undertake heavy work in his car restoration business it is not without difficulty. On 30 April 2020 Dr Prabhakaran reported the main issue was short term memory loss, noting Mr O’Keefe was finding it hard to focus and concentrate. He reported a lack of interest in things and impaired motivation. In June 2021 Dr Rudzki reported an increase in the claimant’s back, buttock and left leg pain, with marked morning ache and stiffness aggravated by sitting or standing still for any length of time. These symptoms continue.
On 22 June 2023 Dr Prabhakaran reported Mr O’Keefe was more anxious and agitated than before, distressed, angry and depressed. His mood was described as unstable. Mr O’Keefe was angry, irritable and confrontational in his dealings with people and was easily overwhelmed.
Having regard to the apparent downward trend in the claimant’s coping I am satisfied based on the evidence from treating practitioners that Mr O’Keefe is no longer fit for work as a project manager. I do not accept the opinion of the Vocational Capacity Centre that given his formidable intellect and the success with which he has adapted to his present circumstances returning to a project management role remains a viable alternative for him.
Indeed, given his lack of trust in people and his tendency towards social isolation I find that his move into self-employment from home has been an appropriate strategy to mitigate his loss.
Mr O’Keefe was questioned about his ability to undertake various handyman tasks, given his ability to undertake the heavy work involved in car restoration. He agreed he could lift heavy things, crouch, work with his hands above his head, weld and use a spray gun. Mr O’Keefe agreed he was capable of some of the tasks such as painting but he would then be too tired and too sore to work. He said he can either work and earn money or not work. It was pointed out to Mr O’Keefe that pre-accident, on his estimate, he was spending about 105 hours per week in work, home duties, on his car restoration hobby and his volunteer work, an extraordinary load which would lead little time to paint the house. Mr O’Keefe indicated he would have painted the house during a period of annual leave. He said he used to do a lot of things, being a person who did not like to be still but the motivation was no longer present.
I also find that the symptoms which support an apparent downward trend in the claimant’s coping have impacted his capacity to undertake household chores. I accept that the claimant has demonstrated an ability to undertake the kind of work around the home that he asserts he needs assistance with as evidenced by his ability to assist in building with family and friends a 65 square metre shed in July 2020. He also assisted in building a shed for the RFS over several weekends in 2017 which involved laying a slab and erecting the shed. However, these were “one off projects” completed with the assistance of others. Having regard to his chronic back and left leg pain I am not satisfied Mr O’Keefe has the capacity to undertake heavy household, gardening and handyman tasks on an ongoing and regular basis in addition to working in his car restoration business 26 hours per week.
Whilst Mr O’Keefe has demonstrated the wherewithal to engage in these larger projects in company with others I am persuaded by his evidence and the evidence of his wife Dr Flapper that by reason of his psychological injury he no longer has the motivation to undertake such physical tasks on an ongoing basis. This is in stark contrast to the active competent man
Mr O’Keefe apparently was before the accident.
It is not simply a question of whether Mr O’Keefe has the physical capacity to undertake those tasks, but whether he is motivated to do them, and whether he can maintain the focus and concentration to not only commence tasks but to complete them and to do so on an ongoing basis.

THE ASSESSMENT OF DAMAGES

Non-economic loss

Section 3 of the Act defines non-economic loss as including pain and suffering, loss of amenity of life, loss of expectation of life and disfigurement.
The claimant submitted an appropriate assessment of non-economic loss was $400,000 . The insurer submits an appropriate allowance for non-economic loss would be $248,000.
The pain and suffering experienced by Mr O’Keefe to date has been significant. Prior to the accident Mr O’Keefe was an active and talented man. He not only pursued a career in project management but was active in the RFS, enjoyed his hobby of car restoration and the maintenance of his 16 acre property. He had a happy marital partnership with his wife Therese complimented by an active, engaging sex life. He played an active and hands on role as father to his son Leilland.
I find that Mr O’Keefe has been overwhelmed by the combined impact of both the physical and psychological injury. He reports constant pain in his lower back, buttocks, hips and left leg. He reports a pervasively depressed mood, he is self-absorbed, easily angered, suffers from fatigue, poor motivation and markedly diminished interest in activities he enjoyed pre-injury. He suffers from sleep disturbance, poor memory, poor concentration and loss of self-confidence. He is irritable and verbally abusive.
Mr O’Keefe is no longer affectionate towards his wife and it seems the relationship is hanging by a thread. He suffers from sexual dysfunction and loss of libido and his wife stated there is now very little sex or physical contact. Medical Assessor Sidorov reported his relationship with his wife is more a coexistence, rather than a relationship. After the accident Mr O’Keefe ceased his active involvement in his son’s life and his relationship with his son has become so damaged that his son described him as “a miserable asshole”.

Notwithstanding Mr O’Keefe returned to full time work following the accident, I am satisfied that he became unable to cope, he became confrontational, unable to sequence tasks, he had difficulty dealing with the myriad disputes which arise in project management and he found himself unable to finish tasks. He was no longer trusting and he became paranoid about people going behind his back. After finishing work at the War Memorial Mr O’Keefe attempted to undertake project work with TSA but again, notwithstanding a sympathetic employer, he was unable to cope.
Mr O’Keefe attempted to mitigate his loss by accessing various treatment options in respect of his physical complaints. As recommended by Dr Rudzki he attended physiotherapy, exercise physiology, remedial massage and nerve blocks. He consulted a pain specialist
Dr Gawrikar and under his supervision underwent radiofrequency ablation, PENS treatment, and PRP injections to the left sacroiliac joint. There seems to have been little improvement. He also accessed various treatment options in respect of his psychological injury, continuing under the care of psychologist Tamra Silick, and psychiatrist Dr Prabhakaran. He underwent transcranial magnetic stimulation under the care of neuropsychiatrist Dr Adams without success. He has also trialled various medications with limited success in moderating his mood but with significant sexual side effect.
Mr O’Keefe was 49 years of age at the time of the accident, and he is now 56 years of age with a life expectancy of 28 years. It is now seven years since the accident and whilst it seems Mr O’Keefe’s condition has plateaued there is no likelihood of significant improvement.
The impact of this accident on every facet of this man’s life has been significant and I consider an appropriate award for non-economic loss to be the sum of $370,000. I assess damages accordingly.

Past economic loss

At the time of the accident the claimant was employed as a Project Manager by Spotless at the War Memorial on a gross annual income of $92,688 or $1,384.61 net per week.
Following the accident on 17 February 2017 Mr O’Keefe returned to work on restricted hours and restricted duties although as indicated the records suggest he had returned to work on a full time basis by 28 July 2017. Mr O’Keefe found it increasingly difficult to cope and by May 2019 it was suggested he take one day off a week and in December 2019 he resigned.

Period 17 February 2017 to 30 June 2019

It is agreed that the claim for past wage loss is limited to the amount received by way of workers compensation payments during the financial years ended 30 June 2017, 2018, and 2019. Those payments total $51,644.82 calculated as follows:
·        Financial year ended 30 June 2017   $13,548.82
·        Financial year ended 30 June 2018  $20,818.11
·        Financial year ended 30 June 2019  $17,277.89

The assessment of the claimant’s earning capacity

Mr O’Keefe secured a job with TSA in early 2020 which did not eventuate due to the COVID-19 pandemic. However, between July 2020 and March 2021 he worked on a contract basis with TSA as a project manager whilst also undertaking work in his own car restoration business. After March 2021 Mr O’Keefe has limited himself to self-employment in his car restoration business.
The claimant asserts he is incapacitated for work as a Senior Project Manager and uninjured he had the capacity to earn approximately $155,000 gross per annum or $109,617 net per annum. The claimant relies upon the letter from Mr Gandhi of TSA dated 20 May 2022 who stated the salary payable for a Senior Project Manager would have been between $130,000 and $150,000 and upon the Vocational Assessment Report of Dr Henricks dated
13 April 2023 who reported the role of Project Manager Maintenance had a market pay rate of $2,985 per week or $155,220 gross per annum.
The claimant asserts it was his intention to work as a Senior Project Manager until at least age 67.
The claim for economic loss from December 2019 is calculated on the basis uninjured the claimant had the capacity to earn $109,617 net per annum. After deducting the claimant’s taxable income for each year thereafter the claimant alleges a loss of past earnings of $478,078.82. The claimant submits he has lost “approximately 73% of his earning capacity”.
The insurer submits I would not accept but for the accident the claimant would have earned $150,000 per annum (I understand the claim is actually $155,000 per annum) where the claimant’s financial documents indicate he was earning about $1,300 net per week before the accident. This accords with the Personal Injury Claim Form where Mr O’Keefe nominated the sum of $1,373.02 as his usual net weekly earnings with Spotless. The insurer also notes the claimant continued to work for Spotless after the accident with little interference in his earnings until the financial year ended 20 June 2020. However, it should be noted that the claimant’s earnings with Spotless following the accident included workers compensation payments.
In determining the claimant’s work capacity, the insurer referred to the following opinions:
(a)    Dr Sivaruban – fit to work 26 hours per week but noted that the chronic nature of the psychological injury may affect the claimant’s work capacity and stop him doing regular work;
(b)    Dr George – working four days a week and it may be another 12 months before he could increase his hours depending on his chronic pain;
(c)    Dr Ventura – psychological injuries did not prevent him from participating in employment;
(d)    Dr McGlynn – burns did not prevent the claimant from working;
(e)    Dr Leu - concluded any period of incapacity would be under six months;
(f)    Ms Stewart undertook a functional assessment and concluded the claimant had a minor dysfunction as a result of his physical injuries, and
(g)    Dr Hendricks who considered from a psychological perspective the claimant was fit for a number of roles including as a project manager.
I do not accept the opinions of either Dr Ventura or Dr Leu where they are at odds with the evidence of the treating practitioners. I note the claimant does not suggest he has any incapacity for work due to his burns. I do not accept the opinion of Ms Stewart or the opinion of Dr Hendricks where their opinions are not consistent with the opinion of the claimant’s long term treating practitioners.
I note the opinions of Dr George and Dr Sivaruban are consistent with the opinions of the treating practitioners. I agree with the insurer that the best evidence of the claimant’s current work capacity appears in the Certificate of Capacity of Dr Baxter dated 6 February 2024 where she certifies the claimant fit for work four days a week, 6.5 hours a day or less if not coping, subject to other physical restrictions. Ms Silick in an Allied health recovery request dated 9 November 2023 reported:
“Working up to 6.5 hours per day 4 days/week. Sole trader doing vehicle restoration. Rests taken as required (monitoring back pain), flexible arrangement working well for John.”

I allow the total sum of $12,310 for past commercial care.

Equipment needs

A claim is also made for various items of equipment purchased by the claimant to enable him to complete car restoration work. The work assists with lifting and moving of heavy parts and equipment. Without this equipment Mr O’Keefe is limited in the nature of the jobs he can undertake. Mr O’Keefe states this equipment was necessary to convert his hobby into a viable business.
The claim is made in respect of the following:

Item

Cost

Creeper garage seat

$66.95

Diesel Heater

$799

Bar stool

$60

Rhino cart welding bench

$2,200

Mazda BT-50

$27,800

Safety steps x 2 @ $65.55 each

$131.10

Height adjustable roller seat

$69.99

Shrinker stretcher

$280

Stand shrink/stretch

$280

English wheeling machine

$630

Bead rolling machine

$1,890

Spray painting booth

$4,042.50

Portable hand spot welder

$1,100

Hydraulic punch

$210

Guillotine

$2,850

Vehicle jacks x 4

$479.96

Garage shelf system

$690

Bar bender

$320

Hand shear

$320

Car trailer

$4,800

Air compressor

$1,499

Belt linisher machine

$465.55

Sheet metal folder (Panbrake)

$3,025

The claimant has provided receipts to verify the purchase of these items and photographs of each item appear in Mr Stretton’s report. I do not propose to allow the cost of the Mazda where it was apparent from Mr O’Keefe’s evidence that he had sold and purchased several vehicles since the accident.
It is apparent that some but not all of these items of equipment were claimed as deductions on Mr O’Keefe’s taxation returns. However, it is not a matter for me to assess the validity of those deductions but to determine whether the need for these items of equipment was created by the accident.
In Dang v Chea [2013] NSWCA 80 Garling J reiterated the principle that the aim of an award of damages was not to fulfil the ideal requirements for an injured plaintiff, but the reasonable requirements. His Honour referred to the following paragraph of Windeyer J in Chulcough v Holley (1968) 41 ALJR 336 at [338]:
"A plaintiff is only entitled to be recouped for such reasonable expenses as will reasonably be incurred as a result of the accident. What these are must depend upon all the circumstances of the case - including the particular plaintiff's way of life, prospects in life, family circumstances and so forth. It does not follow that every expenditure which might be advantageous for a plaintiff as an alleviation of his or her situation or which could give him or her happiness or satisfaction must be provided for by the tortfeasor."
Mr O’Keefe had engaged in the restoration of vehicles as a hobby for many years. However, in turning a hobby into a business I accept that Mr O’Keefe required additional equipment to facilitate not only the professional restoration of vehicles, keeping in mind that Mr O’Keefe had won awards for his restoration work whilst it was still a hobby, but also to enable him to undertake, where possible given his injuries, the work in a timely and professional manner. Given his chronic back and left leg pain I accept that some of these items of equipment were necessary to provide ease of movement when working on vehicles and to assist with heavy lifting.
I allow the sum of $26,209.05 in respect of those equipment costs.

Future commercial assistance

A claim for future commercial assistance is made based on the recommendation of
Mr Stretton that the claimant required 1.68 hours per week commercial assistance for domestic tasks and six hours per week for gardening tasks until age 80.
I refer to my earlier comments in response to the insurer’s submissions that no allowance should be made on the basis the claimant has demonstrated a significant capacity to undertake heavy physical work as part of his work restoring cars and as a volunteer with the RFS.
The insurer also submits that to recover damages for assistance on a commercial basis the claimant carries the onus of proving that those presently providing gratuitous assistance to him will not continue to do so in the future: Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 at [96].
I am satisfied that claimant’s wife will not continue to provide gratuitous assistance to the claimant given her own demanding career and where the claimant has already demonstrated he is prepared to obtain commercial assistance with domestic tasks, having regard to the services provided by Vanessa Lee Merritt and with gardening and handyman tasks having regard to the services provided by Handyman Llando. I also have some doubt about the long term viability of the claimant’s marriage and consider there is a very real possibility of the claimant ultimately living alone. I also note that his son Leilland has recently moved to Queensland and is no longer available to provide assistance.
I consider the recommendations of Mr Stretton as to the need for future commercial care to be reasonable.
There is a further caveat on future domestic assistance. In Nominal Defendant v Ismail [2014] NSWCA 432 the court stated some allowance must be made for the needs of most elderly people for domestic assistance in their later years and in Sampco Pty Ltd v Wurth [2015] NSWCA 217 Basten JA stated at [95]:
“To these elements one might add the high likelihood that a level of domestic assistance would be required in the ordinary nature of things for some years before the Plaintiff turned 87.”
I think it unlikely that the claimant would have been able to undertake the gardening required on a 16 acre property, albeit only eight to 10 acres is cleared or semi-cleared, including using a ride on mower for six hours at a time up to the age of 80 years. Accordingly, I consider it more appropriate to allow future commercial care until age 70, a further 14 years.
I also propose to apply a discount of 15% for the vicissitudes of life in accordance with the decision in Avopiling Pty Limited v Bosevski [2018] NSWCA 146.
The multiplier on the 5% tables for 14 years is 529.3. The parties agreed the relevant rate for future commercial care was $50 per hour. I calculate damages as follows:
· 7.68 hours x $50 per hour x 529.3 less 15% = $172,763.52.

Property repairs

House painting

A claim is also made for the cost of painting the house, which Mr O’Keefe says uninjured he would have undertaken. A claim is made in accordance with a quote dated 17 October 2020 in the sum of $8,690 inclusive of GST.
Mr O’Keefe stated uninjured he would have painted the house in about 2020/2021. In his statement he described in some detail the home renovation work he had undertaken on two earlier properties. Dr Flapper also stated uninjured the claimant would have painted the house. Regardless of whether Mr O’Keefe had the physical capacity to pick up a paintbrush I accept he lack the motivation and focus to do the job and would find painting the house painful given his chronic lower back and left leg injury.
I accept the claimant’s property has become rundown because of his inability to undertake tasks such as painting and I propose to allow this expense in the sum of $8,690.

Fencing

A claim is made for the replacement of the side fence in accordance with a quote from Watty’s Rural and Domestic Fencing in the sum of $3,718 inclusive of GST and for replacement of the back fence in the sum of $3,180 inclusive of GST.
I accept the evidence of the claimant and his wife that uninjured Mr O’Keefe would have replaced these fences and the need to engage a contractor to undertake the work has been created by the accident. Photograph of the claimant’s photograph show fencing in a state of disarray. I allow the total sum of $6,898 for replacement fences.

Landscaping

A claim is made in the sum of $47,180 for landscaping including the provision of a truck and bobcat and the provision of top soil, turf, Wee Jasper stone, concrete mix, mortar mix, compost and mulch. The landscaping includes relaying an existing front path, laying new turf, constructing a rock path and composting and mulching the back garden. The quote is dated 5 November 2020.
Whilst Mr O’Keefe states before the accident he did the landscaping himself he had lived in at the property since 2012 and the landscaping the subject of the quote remained outstanding. I do not propose to allow the cost of the landscaping where I am not convinced it was the claimant’s intention to undertake the landscaping where it had not been undertaken or commenced during the claimant’s five year occupancy prior to the accident.

Weed control

A claim is made for the cost of weed spraying bi-yearly for eight days at seven hours each day at a cost of $130 per hour, a total of $8,580 inclusive of GST in accordance with a quote from Burra Rural and Civil Services dated 17 May 2024. I note the quote includes the cost of the chemicals in the sum of $660.
In his statement Mr O’Keefe stated he sprayed the weeds with a 30l spray unit on the back of the mower and he also hand sprayed weeds while wearing an 18l unit mounted on his back. He stated he sprayed about eight days each year.
Noting the requirement to control weeds on rural properties I propose to allow the sum of $7,920 inclusive of GST being the cost of the spray rig and operator excluding the cost of the chemicals.
I assess total damages for future commercial care in the sum of $196,271.52.

FOX v WOOD, OBVIOUS ERRORS, INTEREST AND COSTS

On 30 July 2024 I issued draft reasons for decision.
I directed the claimant to undertake a calculation of the Fox v Wood component for the financial years ended 30 June 2017, 2018, and 2019, to upload those calculations to the portal and serve them on the insurer.
I also directed the claimant to upload to the portal submissions on obvious errors, interest and costs.
I directed the insurer to advise if the calculations of the claimant as to Fox v Wood were agreed, and if not, to advise of any point of difference.
I also directed the insurer to upload to the portal any submissions it wished to make in response to the claimant’s submissions as to obvious errors, interest and costs.

Fox v Wood

The claimant provided submissions dated 7 August 2023 adopting the proposed pro-rata calculation referred to in paragraph 230 of these reasons. The claimant provided a table summarising the total income, percentage paid by iCare, tax withheld, and the final Fox v Wood component.
The claimant’s calculation for the Fox v Wood component for the financial years ended 2017, 2018 and 2019 is $14,225.65. In submissions dated 16 August 2024 the insurer agreed with that calculation.
Accordingly, taking into account the Fox v Wood component for the years ended 30 June 2020, 2021, 2022 and 2023 of $11,502 (see paragraph 225) it is agreed damages for Fox v Wood should be assessed in the sum of $25,727.65.

Obvious errors

The claimant submits there were a number of obvious errors in my draft reasons for decision.

Economic loss

The claimant submits I made the following obvious errors in respect of the assessment of damages for economic loss:
· I should have accounted for certain business expenses borne by the claimant and not charged to clients such as consumables, protective clothing, advertising, bank fees, cleaning, bookkeeping, and others in achieving the $80 gross per hour he said he charges in his business when determining his current earning capacity, and
· I should have had regard to leave and public holiday entitlements that the claimant was entitled to in his role as a Project Manager for Spotless when assessing economic loss.
The insurer submits the matters raised by the claimant are not “obvious typographical or mathematic errors”, such that they are amenable to correction. The insurer submits the claimant is asking me to revisit findings of fact, which is not permissible and outside the correction of “obvious typographical or mathematical errors”.
In Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 [2023] NSWCA 188 the Court of Appeal considered the obvious error power contained in s 63 of the Civil and Administrative Tribunal Act, 2013. At [158] the majority found the obvious error power was not “consistent with the exercise of discretion on the part of a member potentially changing the outcome of a determination”.
The court stated at [155] that a failure to deal with a substantive error would not readily be described as an obvious clerical or typographical error or defect in form.
As I have already indicated it is difficult to be confident the income disclosed in the claimant’s tax returns are an accurate reflection of his earnings. Furthermore, whilst I found it was an acceptable accounting practice to claim as a deduction an expense paid by a client where the payment is accounted for as income received by the business I have not made any findings about expenses borne by the claimant but not charged to clients and there has not been any attempt to quantify those expenses.
I agree the claimant is asking me to revisit my findings which would potentially change the outcome of my assessment. I find the “errors” alleged by the claimant in respect of the claim for economic loss are not obvious errors.

Future commercial assistance – weed control

Under the heading future commercial assistance, I noted the requirement to control weeds on rural properties and allowed the sum of $7,920 inclusive of GST which is the cost of weed spraying bi-yearly excluding the cost of the chemicals.
The claimant submits noting I accepted the need to control weeds on rural properties, the calculation included an obvious error in that I failed to allow for the cost of weed spraying bi-yearly for the next 14 years until the age of 70. The claimant submits I should have allowed $7,920 ($152.31 per week) x 529.3 (multiplier for 14 years) less 15% for vicissitudes in the sum of $68,523.99 for bi-yearly weed control.
The insurer submits this is not an obvious error and is not amenable to correction.
The claim for weed control set out in paragraph 73 of the claimant’s submissions on damages was described as a claim for “the cost of farm work … for which the claimant has quotes for work on a one-off basis which he would otherwise have done”. The claim included weed control as per the “quote of Burra Rural and Civil Services dated 17 May 2024 for bi-yearly weed control $8,580”.
My assessment of damages allowed the cost of weed control as claimed, with the exception of the costs of the chemicals, in the sum of $7,920 inclusive of GST.
Where no claim was made for the ongoing cost of weed control it would be an error to allow same. I find this was not an obvious error.

Interest

The claimant provided submissions dated 7 August 2024 in support of the claim for interest.
The entitlement to interest is governed by s 137(4) of the MAC Act which provides as follows:
“(4) Other heads of damages. The following provisions apply to damages, other than damages to which subsection (2) or (3) applies, payable in relation to a motor accident:
(a) Interest is not payable (and a court cannot order the payment of interest) on such damages unless:
(i)information that would enable a proper assessment of the plaintiff’s claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or
(ii) the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or
(iii) if the defendant is insured under a third-party policy or is the Nominal Defendant, the insurer has failed to comply with its duty under section 83, or
(iv)if the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.
(b) The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff’s full entitlement to all damages of any kind.
(c) For the purposes of this subsection, an offer of settlement must be in writing.”
I was informed offers made by the insurer in writing pursuant to s 137(4) of the MAC Act were as follows:
(a)    a s 82 offer dated 13 January 2022 offering $125,000 plus regulated costs and disbursements;
(b)    a Calderbank offer dated 27 June 2024 offering $1,300,000 plus regulated costs and disbursements of $50,000, and
(c)    a Calderbank offer dated 3 July 2024 offering $1,600,000 plus regulated costs and disbursements of $50,000.
The claimant submits that the entitlement to interest is a matter of discretion depending on whether it was unreasonable for the claimant to not accept the offer made following the hearing of the evidence. The claimant submits it was not unreasonable for the claimant to not accept the offer made by the insurer following the first day of the hearing, where at that time the hearing was at an end and the costs for the claimant had been expended over many years. The claimant submits the difference between the verdict and the amount offered after the first day of the hearing is so small it would be a draconian outcome for the claimant to have no entitlement to interest.
The claimant noted no written offer was made by the insurer at the mediation on
19 June 2024 although a verbal offer of $650,000 inclusive of costs was conveyed. This offer was inclusive of workers compensation payments which at that time totalled $325,664.99. Not surprisingly the claimant considered this offer to be unreasonable.
The claimant has also detailed the service of evidence upon the insurer.
The insurer opposes an award of interest. The insurer submits the award of interest is not discretionary and is only available where the claimant has satisfied at least one of the four circumstances set out in s 137(4) of the MAC Act. The insurer submits the claimant has not satisfied one or more of those conditions and the claim for interest must fail.
Specifically, the insurer submits s 137(4)(a)(i) does not apply where the insurer has made multiple written offers of settlement in this claim. Section 137(4)(ii) does not apply where on receipt of further information the insurer has made a revised offer of settlement. Section 137(4)(iii) does not apply where the insurer has not failed to comply with his duty under s 83. Finally, the insurer submits that s 137(4)(iv) does not apply where the written offer of settlement made by the insurer on 3 July 2024 in the sum of $1,600,000 was more than the damages assessed.

The claimant sought to rely upon the following statement of Basten JA in Najdovski v Crnojlovic (No.2) [2008] NSWCA 218 at [26]:
“… too great a willingness to treat an offer as “reasonable”, and therefore not unreasonable, will allow defendants to escape too readily the obligation to pay for the cost of keeping the plaintiff out of his or her damages. Ultimately reasonableness depends upon an objective assessment of the circumstances and, where the material before the court does not materially differ from that available to the defendant at the relevant time, the judgment of the Court must be treated as, subject to recognition that no precise figure is necessarily correct, a baseline for determining the reasonableness of the offer.”
However, his Honour also acknowledged the need to satisfy the conditions in s 137(4) of the MAC Act, stating at [19]:
“With respect to interest, the purpose for the inclusion of such an amount in an award of damages is to compensate the plaintiff for being kept out of compensation for the amount of his loss from the date when the loss accrued until the date of judgment. If interest is not payable, because the conditions in sub-s 137(4) are not satisfied, no interest is payable for any period.”

Whilst I accept the claimant may argue an entitlement to interest where he has been kept out of his damages I agree with the insurer that the claimant has not established an entitlement to interest under any of the conditions prescribed by s 137(4) of the MAC Act. Sub-section (i) does not apply where the insurer has made an offer of settlement in writing; sub-section (ii) does not apply where in light of further information the insurer has made a revised offer; sub-section (iii) does not apply where the insurer has not failed to comply with its duty under s 83, and sub-section (iv) does not apply where the award of damages is not more than 20% higher that the highest amount offered by the insurer.
Accordingly, I find there is no entitlement to interest.

ASSESSMENT OF DAMAGES SUMMARY

I assess the claim as follows on the findings set out above:
Non-Economic loss   $370,000
Past Loss of earnings (incl superannuation)  $323,069.01
Future Loss of earnings (incl superannuation)  $280,222.89
Fox v Wood   $25,727.65
Past treatment (incl. s 83 payments)  $129,452.13
Future treatment  $89,784.77
Equipment costs  $26,209.05
Past gratuitous assistance  $122,529.40
Past commercial care  $12,310
Future commercial care  $196,271.52
TOTAL DAMAGES ASSESSED  $1,575,576.42

COSTS AND DISBURSEMENTS

I refer to the claimant’s schedule of costs and disbursements and the insurer’s submissions in response.
There is no entitlement to advice under s 94 which only applies where the legal practitioner was retained after a certificate as to the assessment has been issued. No allowance will be made.
There is a dispute as to the claim for conferences. I propose to allow for six hours of conferences having regard to the complexity of the dispute, the detailed statements provided by the claimant and Dr Flapper and where the assessment proceeded over two days.
I otherwise assess costs in accordance with the Motor Accidents Compensation Regulation 2020 as set out in the attached Damages and Costs Calculator.

Item	Cost
Creeper garage seat	$66.95
Diesel Heater	$799
Bar stool	$60
Rhino cart welding bench	$2,200
Mazda BT-50	$27,800
Safety steps x 2 @ $65.55 each	$131.10
Height adjustable roller seat	$69.99
Shrinker stretcher	$280
Stand shrink/stretch	$280
English wheeling machine	$630
Bead rolling machine	$1,890
Spray painting booth	$4,042.50
Portable hand spot welder	$1,100
Hydraulic punch	$210
Guillotine	$2,850
Vehicle jacks x 4	$479.96
Garage shelf system	$690
Bar bender	$320
Hand shear	$320
Car trailer	$4,800
Air compressor	$1,499
Belt linisher machine	$465.55
Sheet metal folder (Panbrake)	$3,025

[2024] NSWPIC 457

20 August 2024