Judges v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Judges v AAI Limited t/as GIO [2021] NSWPIC 538
CLAIMANT:	Aaron David Judges
INSURER:	AAI Limited t/as GIO
MEMBER:	Elizabeth Medland
DATE OF DECISION:	8 December 2021
CATCHWORDS:	MOTOR ACCIDENTS - Assessment of damages under Part 4 of the Motor Accident Injuries Act 2017; liability admitted by insurer; claim for non-economic loss and past and future economic loss; high speed accident on Hunter Expressway, NSW; claimant was airlifted to John Hunter Hospital and sustained several fractures, mainly to the right lower limb; agreed amongst the parties that the claimant is unable to return to pre-injury employment as a heavy vehicle mechanic in the mining industry; claimant is currently 29 years of age suffering significant disruption to enjoyment of life, with major impact on family relationships and plans for the future; claimant developed alcohol dependence post-accident and suffers significant psychological symptoms as a result of the accident; claimant has made admirable efforts to re-enter the workforce and retrain, however, some efforts have been thwarted by his injuries; Held- continuing in his current employment is unreasonable due to his injuries; non-economic loss awarded in the amount of $375,000; total damages awarded: $1,417,789.96.
DETERMINATIONS MADE:	1. On the issue of liability for the claim, the GIO’s insured owed a duty of care to the Claimant, breached that duty of care and the Claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017 (the Act), I specify the amount of damages for this claim as $1,417.789.96 3. The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $55,058 inclusive of GST.

Reasons for Decision

Issued under section 7.36(1) of the Motor Accident Injuries Act2017

Background

Aaron David Judges (the claimant) is a 29 year old male who sustained significant injuries in a motor vehicle accident on the Hunter Expressway NSW in 2018. The insured vehicle entered the freeway without giving way causing a collision with the claimant’s vehicle. The claimant’s vehicle was travelling at approximately 100km/h and the collision caused it to roll. The claimant was rendered unconscious and he was subsequently airlifted to John Hunter Hospital.
The insurer has admitted liability for the accident and the remaining issue in dispute is the claimant’s entitlement to damages under the Motor Accident Injuries Act 2017 NSW (MAI Act). The claimant has an entitlement to damages for non-economic loss and past & future economic loss.
As the accident occurred when the claimant was on his way to work at Bulga Coal Mine, payments of workers compensation under the Workers Compensation Act 1926 have been made to the claimant by Coal Mines Insurance.
The claimant is a qualified truck mechanic and lives with his partner and seven year old son.

Documents Considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Injuries

Following the accident, the claimant was admitted to John Hunter Hospital for one week. Scans revealed a fracture to the right femoral shaft, fracture right third toe, undisplaced right acetabular fracture, undisplaced right tibial plateau fracture and an undisplaced thoracic spine endplate fracture. He underwent a right femoral nail fixation on 17 June 2018 and in 2019 he had the screws removed from the right knee.
It is reported that the claimant has ongoing chronic neck pain, secondary to a musculoligamentous strain. He is also said to have chronic right hip and right knee pain. He also suffered an acute closed head injury with an associated front scalp haematoma.
The claimant has received ongoing conservative treatment for his physical injuries including physiotherapy, hydrotherapy, gym based exercise programs and medication.
The claimant relies on a report of Dr Dias dated 6 December 2019. Dr Dias reported the claimant suffering from debilitating symptoms of pain, stiffness and discomfort affecting the neck, right hip and right knee on a daily basis. He also reported intermittent pins and needles and numbness radiating down the lateral aspect of the right thigh to the lateral aspect of the right knee.
The claimant reported that he no longer experienced any significant symptoms of pain in his upper thoracic spine, right elbow or right foot and not no significant sequelae from the closed heady injury. The claimant rated the pain as 8 out of 10 on the visual analogue scale.
The claimant’s symptoms of pain and post-traumatic psychological symptoms impacted upon his sleep patterns.
In terms of function, the claimant indicated that he could walk on flat ground for approximately 90 minutes and could stand unrestricted. He, however, struggled to sit for more than 30 minutes at time owing to the hip pain and also struggled with tasks involving squatting or kneeling. He also struggled with driving for more than 30 minutes due to hip pain and also had issues with driving in high density traffic as a result of psychological symptoms.
Dr Dias considered the prognosis for the physical injuries to be poor. Dr Dias stated that despite the claimant’s young age, given the severity of his injuries it was doubtful that the claimant’s symptomatology and related disabilities would ever resolve to the point where he was pain free or free from functional compromise for the foreseeable future.
Dr Dias considered the claimant to be totally unfit for her pre injury occupation. He considered the claimant to be partially unfit for all forms of employment and would be fit to work within a number of restrictions involving sitting, lifting, pushing, squatting and the like. The doctor considered the claimant fit for five hours a day, five days a week within such restrictions.
In terms of future treatment needs, Dr Dias considered the claimant to be at risk of developing posttraumatic osteoarthritis or he right hip and right knee. He therefore would be at risk of a total hip replacement and total knee replacement. He considered such risk to be in the order of 25%.
Dr Dias assessed the claimant as suffering a whole person impairment for physical injuries of 19%.
In addition to the significant physical injuries sustained as a consequence to the motor accident, the claimant has also suffered significant psychological injury.
In a further report dated 5 August 2021, Dr Dias noted that the claimant reported little change in his symptomatology since the first assessment in 2019. The claimant is recorded as suffering from ongoing debilitating symptoms of pain, stiffness and discomfort in his neck, right hip and right knee. The claimant was taking Panadeine forte around twice a week and did not take any other pain medications. He was not under the care of any allied health professionals and was only attending his general practitioner (GP) for management. Whole person impairment was assessed at 18%.
The insurer relies on a report of Occupational Physician, Dr Keller, dated 27 August 2020. Dr Keller noted similar symptoms as reported by Dr Dias. It was noted, however, that the claimant reported pain at 5/10. Dr Keller also provided an opinion that the claimant is permanently unfit for her pre injury duties as a heavy vehicle mechanic. Dr Keller opined that the claimant would be fit for full time hours, within restrictions involving sitting, walking, lifting, squatting and kneeling.
Approximately a month after the accident the claimant was referred by his GP to psychologist, Dr Grainger. The claimant was experiencing symptoms of psychological disturbance since the accident including difficulties getting into his car, recurring thoughts of the accident accompanied by vomiting and shock symptoms.
Dr Grainger diagnosed the claimant as suffering from Post Traumatic Stress Disorder. The claimant attended upon Dr Grainger for treatment on a weekly basis initially, and then monthly.
He also has attended upon Ms Feltis for counselling in respect of excessive alcohol intake since the accident. I understand that those sessions have ceased due to issues with approval with the workers compensation insurer and work schedules. The claimant would like to attend upon Ms Feltis again in the future as he found the sessions helpful.
The claimant relies on a medico legal report of Dr Allnut dated 9 August 2019. He diagnosed Post Traumatic Stress Disorder. He noted the claimant described psychological symptoms such as panic attacks, particularly when presented with cues of the accident, including driving. Accordingly, he had developed avoidance behaviour with driving. The claimant was said to have a negative perception of himself an suffered from diminished interests and participation in activities.
In terms of prognosis, Dr Allnut considered that in the short to medium term it was poor but in the longer term it was guardedly positive.
At the time of assessment Dr Allnut considered the claimant to be psychologically unfit for work as a mechanic given issues with concentration and reduced motivation and energy. It was considered that he may have the cognitive ability to initially perform some menial administrative tasks.
The insurer relies upon a medico legal report of Dr Vickery, psychiatrist, dated 29 April 2020. He noted the diagnosis of Post Traumatic Stress Disorder, however, opined that this had largely resolved. He diagnosed an Adjustment Disorder and noted that the injuries had not stabilised, with a stabilisation expected in twelve months. He recommended ten monthly counselling sessions with a clinical psychologist.
Dr Vickery did not consider the claimant fit to resume pre-accident employment at the time of assessment but considered him psychologically fit to undertake suitable duties/hour over the previous six months.

Non economic loss

At the assessment conference, the claimant described his pain levels as generally a 7 out of 10.
In terms of psychological symptoms the claimant stated that “I am just down 90% of the time and it is just horrible.” He described his psychological state as affecting his motivation for even the most simplest of tasks. He described becoming snappy with his partner and son. I gained the impression that this particular ongoing issue was particularly difficult for the claimant. I formed the impression from his evidence that he took his role as a father and partner very seriously, and is significantly disturbed by seeing himself behave with intolerance with his family. He stated that he had previously had plans to grow his family, but had essentially abandoned the idea of another child. He stated that “the life I envisioned when it comes to family, I just can’t do that anymore. He further stated that having another child would mean “another relationship that I would potentially stuff up.”
As discussed in further detail below, the claimant has been successful in obtaining alternative employment, however, he has significant ongoing issues with performing his duties. This is both from a physical and psychological standpoint.
I concluded from the claimant’s evidence, that the claimant is a very well intentioned individual that is trying his absolute best to live with his ongoing difficulties arising from the accident, however, those difficulties are overwhelming. He has continued to strive to provide for his family, however, I formed the opinion that he was only just holding it together.
The claimant spoke of his ability to play and interact with his son has been severely affected. He is not able to “rough play” and kick a soccer ball with this son. He described his son doing something minor wrong and the claimant would fly off the handle. He described his son suffering from alopecia and he feels that he increases his son’s stress which causes his hair to fall out.
In respect of his relationship with his partner, when questioned on the point the claimant became emotional, as he did when speaking of his relationship with his son. He explained how she has larger workload due to his injuries and she gets stressed and in turn that stresses him out which causes him to snap. He stated that his partner is upset a lot of the time and hence things are not very nice. The claimant acknowledged that he can get aggressive at times and has in the past hit walls.
The claimant explained that intimacy with his partner is difficult. Psychologically he is often not “in the mood” and physically his hip injury impedes the activity.
Before the accident the claimant described himself as being fit, happy and healthy with him leading a normal life. He explained that prior to the accident he liked attending the gym and was a body builder and was also training in gymnastics. These pursuits have necessarily been abandoned on account of this accident related injuries. He described looking in the mirror and hating that he is not what he wants to be and desperately wants to get back to normal.
The claimant also described his previous interest in playing the guitar and composing music on his computer. He no longer pursues this activity, citing his interest no longer being present since the accident.
As noted above, from the claimant’s evidence I accept that he has a very genuine desire to overcome his difficulties and provide for his family, however the difficulties he experiences as a result of his injuries have become overwhelming. Admirably, the claimant has attempted to pursue alternative career pathways since the accident and had enrolled in a university course. For a variety of reasons, including lack of motivation this course was abandoned.
In terms of alcohol dependence the claimant admitted that it had become a major problem. He stated that he would drink a six pack of beer a day, however, prefers to drink spirits if he can afford it and would drink a bottle of spirits a day when available. The claimant described trying to address the problem with his GP and his psychologist. When asked why he drinks he stated that initially it put him in a better mood and he found he was able to do more things around the house, however, now he drinks to get drunk and not deal with things.
In terms of damages, the claimant makes a claim of $425,000 for non-economic loss.
The insurer has quite rightfully noted the insurer does not dispute the extent of the claimant’s physical injuries. It was noted that the insurer does not accept the claimant is suffering from an ongoing post traumatic stress disorder, noting Dr Vickery formed the opinion that such disorder had considerably resolved, and diagnosed an adjustment disorder and the psychological injury had not yet stabilised.
The Insurer has submitted that the upper limit of damages for non-economic loss should be $275,000. Counsel for the insurer noted a number of awards for non-economic loss in different claims determined by both the Personal Injury Commission and the former Dispute Resolution Services. I was not persuaded that any of the mentioned cases were commensurate to the particular circumstances of the subject claim.
The claimant is of a young age and has many years of pain and restrictions ahead of him, caused by the accident. Not only does he suffer from constant significant pain, that impedes his ability to pursue his career and leisure pursuits, including full enjoyment of his family life with his partner and young child, he also has significant psychological symptoms. Those psychological issues impact on the claimant’s motivation and mood, his ability to drive, and has also led to him self-medicating with significant alcohol consumption. I consider the claimant to have displayed admirable efforts in trying to obtain some level of normalcy despite his difficulties arising from the accident. However, the physical and psychological injuries have essentially overwhelmed the claimant.
In short, the accident has seemingly invaded the enjoyment of all aspects of the claimant’s life. I do accept, however, that the claimant may well experience an improvement in his emotional state following the conclusion of his claim and his financial stability is somewhat more assured. He is currently 29 years of age. He has a life expectancy of 54 years. Taking into account the matters set out above, I award an amount of $375,000 for non-economic loss.

Past economic loss

At the time of the accident the claimant was employed as a heavy vehicle mechanic in the open cut mining industry. After completing his apprenticeship as a diesel mechanic the claimant worked in such trade for a number of employers in the mining industry in both New South Wales and Western Australia. Approximately two months prior to the accident the claimant commenced work as a heavy plant mechanic at Bulga Open Cut Coalmine on a contract basis through Action Plant Services, a labour hire firm.
The claimant’s employment was on a full time basis. The work was physically heavy and repetitive. There is nothing in the evidence before me to suggest that the claimant had difficulties performing the role, prior to the accident.
The claimant has not been able to return to his pre-injury employment in any capacity since the accident. The evidence of the claimant is that he intended to stay in his pre-accident role, with an intention to secure a full time role directly with Glencore.
The evidence suggests that the claimant has made admirable efforts to secure alternative employment since the accident. He commenced employment as vehicle sales consultant with AHG Services (NSW) Pty Ltd on 22 March 2021. He began this work at Cardiff Toyota, and he was subsequently transferred to their Kia and Nissan dealership in Maitland in around June 2021. The claimant gave evidence that this move was due to the work at Cardiff being too much for him. He was not able to handle the stress of the job. Accordingly, he was accommodated in Maitland.
Whilst the claimant continues in this role, it is apparent from the evidence that him continuing in such role is not sustainable. I formed the opinion from the claimant’s oral evidence that it was unreasonable for him to continue in such role any further at all. I concluded that the single reason that the claimant perseveres with the role is to be able to provide for his family.
The claimant gave oral evidence that the fast paced environment at the car yard was stressful and he struggled dealing with the demands of unreasonable customers. I gained the impression that the claimant is at breaking point in the role.
In addition to the psychological difficulties the claimant also has some physical difficulties with the role, and he noted uneven ground, staircases and the requirement to sit in front of a computer.
Faced with the reality of an inability to ever return to his pre-injury work, the claimant has taken steps to gather skills and education in alternative vocations. In this regard, In January 2020 the claimant commenced a Bachelor of Criminology via distance education through the University of New England. It was expected that such degree would be completed by December 2022. However, the claimant withdrew from the course at the end of 2020, having completed two semesters.
I understand the evidence is that the claimant had actually commenced studies in a Science degree prior to the Criminology degree before changing courses. The claimant gave evidence under questioning that he changed courses as the course outline seemed more interesting and the roles that he was looking at related to the degree seemed more attainable. When asked why he did not complete the course, the claimant stated that whilst he was doing it well, when “push came to shove” he needed money to support his family and therefore needed to put it on the backburner.

The claimant was then asked that if he had the opportunity would he go back to the course. The claimant answered that he probably would not, as it was stressful having to go into exams and having discussions and he doesn’t think he could do it. He stated that when he was doing the course he did it pretty good, and he was not failing however his attentiveness and getting involved in the course started to drop off and it started to get on top of him. He said that he could not deal with the stress of the course on top of everything else.
In addition to the abovementioned studies, the claimant was also considering completing studies in real estate. The claimant gave evidence under questioning by the insurer’s counsel that the studies were considered and he looked at the first unit of a Certificate IV in Real Estate but that was as far as he got. He gave evidence along the lines of: “like all of it, I make the effort to try and do something and as it progressed it was one more stress. I looked at the course material and I just got overwhelmed looking at it.” The claimant confirmed that real estate was something he thought he would be interested in, but given his experience working in his current role he does not think it is a viable vocation as dealing with clients was significantly stressful for him.
The claimant confirmed during questioning that he remained interested in completing his criminology degree. He stated that there was a handful of things that he was interested in. I concluded from the claimant’s oral evidence that he requires some vocational counselling and assistance in setting a path for retraining. In this regard, the claimant apparently did contact Coal Mines Insurance asking to be put back in touch with a rehabilitation provider that had previously assisted him, but this ultimately did not occur. The claimant stated that he was happy to give things a go, but didn’t know where to start. He stated that he is always trying to get back to “normal.”
The claimant disagreed with a suggestion that he could fulfil a role like a warehouse administrator given the stress involved in coordinating logistics, given that he found it too stressful to even coordinate delivering a car to a customer in his current role.
The claim for past economic loss is based upon purported pre-accident earnings of $1,681 net per week based upon payslips from 15 April 2018 to the date of the accident. The insurer, submits that a figure of $1,520 is appropriate calculation for pre injury earnings noting that the PAYG summary for the 2017 financial year revealed such weekly figure and also noting the 2016 PAYG summary demonstrated earnings of $1,420 net per week.
I accept the figure of $1,681 net per week as being the claimant’s pre-injury earnings. In this regard, the claimant only commenced in the role approximately two months prior to the accident, and therefore the earnings in the 2017 year do not accurately reflect the earnings at the time of the accident.
It is accepted that the claimant’s past economic loss claim should represent his pre-injury earnings less the amounts earned in his current role. The insurer has submitted that the earnings in his current role are around $800. I have examined the three payslips before me from his current employer. His fortnightly earnings are between $1,764 to $1,855.49. On such basis, I have assumed average earnings of $900 net per week in the claimant’s current role.
I therefore award an amount of $271,742 for past economic loss plus an amount of $29,892 for lost superannuation (11%).   The amount is calculated as follows:
(a)    $1,681 (PIE) x 144 weeks (17/6/18 – 22/3/21) = $242,064
(b)    $781 ($1,681 - $900) x 38 weeks = $29,678

Future economic loss

A claim is made based on a figure of $1,120.11 net per week continuing. This figure is arrived at utilising the claimant’s current average earnings deducted from an expected weekly earnings figure of $2,026.48.
The insurer submits the claimant is well motivated and would be capable of full time work into the future avoiding physical type work. The insurer allows a loss of $300 net per week.
As I have set out above, I consider it unreasonable for the claimant to continue in his current role any further. I have concluded that he is only just hanging on due to his commitment to provide for his family. However, I do not consider the current situation to be sustainable.
I accept that the claimant is well motivated to find an alternative vocation, however, requires assistance to harness his interests and strengths in order to pursue the most appropriate form of retraining.
It is difficult to be precise as to the claimant’s potential future earnings. However, on the basis of the claimant’s evidence at the assessment conference I formed the impression that the claimant has a genuine desire to continue working into the future. In this regard, I formed the impression that this was an important goal of his to be a good provider to his family.
It is not in dispute that the claimant is not capable of physical type work, and certainly not of a heavy nature. I also accept from the claimant’s evidence that roles involving regular contact with customers, or fast paced logistical roles, is not employment that the claimant could reasonable fulfil. Accordingly, a number of the proposed vocations listed in the report of Vocational Capacity Centre dated 27 September 2021 are not appropriate. These roles include Motor Vehicle Parts Interpreter, Warehouse Manager, ICT Sales Assistant or Recruitment Consultant. However, I do consider it a reasonable possibility that the claimant would be capable of fulfilling the role of a Private Investigator, particularly following the completion of a criminology degree, or a similar degree. The report sets out market pay rate of $1,633 gross per week (say, $1,284.15).
I also make a finding that but for the accident the claimant’s most likely future circumstances would have seen him continuing his pre-injury role, likely eventually employed directly with Glencore, or otherwise in a commensurate role in an alternative mine. The claimant, but for the injury, would have considerable capacity for high earnings at his pre-injury rate of earnings or beyond.
I consider it reasonable that the claimant terminate his current employment forthwith and spend a period of some years completing tertiary qualifications, such as completion of his Bachelor of Criminology. I also consider it reasonable that at least initially the claimant spend time prior to retraining focusing on treatment for his psychological symptoms including addressing his alcohol dependency.
On the above basis, I award a full loss of $1,681 for four years and thereafter a loss of $600 net per week until retirement age of 67. The loss of $600 net per week has been arrived at noting the suggested earnings of a Private Investigator but also taking into account the fact that the claimant’s injuries would see him at a disadvantage on the open labour market and would also potentially see him taking extra leave due to his injuries.
I therefore award a total of $634,354.17 for future economic loss calculated on the following basis:
(a)    $1,681 x 189.60 (4 year 5% multiplier) = $318,717.60
(b)    $600 x 865.9 (34 year 5% multiplier) x 0.823 (4 year deferral) = $427,581.42
(c)    Sub total of $746,299.02 – 15% for vicissitudes = $634,354.17

I also allow an amount of $92,044.79 for loss of superannuation (14.51% - Furzer Crestani handbook).
_

Fox v Wood

Fox v Wood damages are agreed in the amount of $14,757. I award such amount.

Assessment of Damages Summary

Under sub-section 7.36 (1) (b) of the MAI Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
Non-Economic Loss $375,000.00
Economic losses
·Past loss of earnings (incl. superannuation and Fox v Wood) $316,391.00
·Future loss of earnings (incl. superannuation) $726,398.96

Total Damages Assessed $1,417,789.96

Costs and Disbursements

I assess the claimant’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accident Injuries Regulation 2017, in accordance with the attached sheet.

Conclusion

On the issue of liability for the claim, the GIO’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty.
Under sub-sections 7.36 (3) and 7.36 (4) of the MAI Act, I specify the amount of damages for this claim as $1,417.789.96
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $55,058 inclusive of GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
Motor Accident Injuries Act 2017 (NSW), and
· Motor Accident Injuries Regulation 2017.

Elizabeth Medland

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 538

8 December 2021