Kindi v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kindi v AAI Limited t/as GIO [2023] NSWPIC 254
Claimant:	Jazz Kindi
insurer:	AAI Limited t/as GIO
Member:	Gary Victor Patterson
DATE OF DECISION:	29 May 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of claim for damages under Division 7.6; liability admitted; claim limited to non-economic loss; principles applicable to assessment; claimant a 50-year-old male who suffered injuries when he was struck by the insured vehicle; claimant was standing at the corner when the insured driver lost control of her vehicle and mounted the footpath, pinning the claimant against a tree; skin grafts; surgical scarring; continues to experience pain; ongoing problems with gait; Held – section 7.36(4); the amount of damages assessed in respect of this claim is $450,000.
determinations made:	CERTIFICATE OF DETERMINATION Issued under s 7.36(4) of the Motor Accident Injuries Act2017 Assessment of Claim for Damages made under Division 7.6 of the Act The findings of this assessment are as follows: 1. The amount of damages assessed in respect of this claim is $450,000. 2. The claimant’s economic loss is reduced by, and the insurer is to have credit for, the sum of $Nil in accordance with s 4.10 of the Motor Accident Injuries Act 2017. 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 Motor Accidents Injuries Regulation 2017 is $46,927.98 inclusive of GST.

Reasons for Decision – General Assessment
Common law claim - Motor Accident Injuries Act 2017

Introduction

The claimant, Jazz Kindi (the claimant) is a 50 years old male who suffered injuries on 5 April 2018 when he was struck by the insured vehicle at the corner of Harrow Road and Mary Street in Auburn. The claimant was standing at the corner when the insured driver lost control of her vehicle and mounted the footpath, pinning the claimant against a tree. The insurer wholly admitted liability for the claim.
The claimant suffered a compound fracture of the left leg. He was conveyed to Westmead Hospital where he remained for almost six months. He underwent numerous surgeries and suffered a pulmonary embolism while in hospital. At one time, because of a bad infection, there was discussion about amputation. He still has a rod in his left leg which will be removed in time. He also injured his lower back, both shoulders and both knees, with psychological overlay.
The claimant underwent numerous skin grafts. He has been left with surgical scarring. He continues to experience pain in his shoulders, knees, back pain and pain from the left knee to the foot. He feels the surgical screws moving. He has 3 mm shortening of his left leg which causes problems with his gait.
The claimant is a single man who lives alone in public housing. He was born in Iraq and came to Australia in 1999 as a refugee. He spent about one year in immigration detention and then came to Sydney via Perth. He learnt English and has worked in a butcher shop, as a security guard and a forklift driver. He was in receipt of a disability pension at the time of the accident due to mental health issues.
The claimant was not working at the time of the accident and, due to problems in the past with anxiety, stress and depression, related to a period of imprisonment between 2008 and 2013, he had a poor employment history after he immigrated to Australia.
The claimant otherwise was fit and well and did not suffer from any physical injuries, disabilities or pain prior to the motor accident.
The claimant makes no claim for economic loss because he doesn’t want to incur a Centrelink liability. He concedes that any economic loss claim would be modest.

ISSUES IN DISPUTE

The following issues arise for my determination in this matter:
(a) the extent to which the claimant’s psychological condition was improving before the motor accident / ISSUE 1, and
(b) amount of non-economic loss / ISSUE 2
The insurer does not challenge the claimant’s credit.

DETERMINATION OF ISSUE 1 – CLAIMANT’S MENTAL HEALTH CONDITION PRIOR TO THE MOTOR ACCIDENT

It is common ground that the claimant suffered a pre-existing psychological condition and had been in receipt of a disability support pension for some years prior to the motor accident. The claimant had been in jail between 2008 and 2013 which was the major factor in the development of his psychological condition. He was referred for psychological treatment as a condition of his parole. He ceased that treatment with Kasim Abaie, registered psychologist, prior to the motor accident. Mr Abaie provided a report dated 15 April 2023 (AD 19) in which he confirms that the claimant’s mental health state had stabilised, prior to the motor accident, to the extent that the correctional authorities had given him permission to travel overseas for family visits.
It was put to the claimant by Mr Young that his mental health problems had not much improved, before the motor accident, as he remained on the disability support pension and had not reduced his psychotropic medication. Mr Young also put to the claimant that it was unclear, at the time of the motor accident, that he ever would recover from his mental health problems. The claimant rejected all of those propositions.
Mr Young questioned the claimant about his need for the assistance of a carer prior to the motor accident. The claimant said that his use of a carer varied with how he felt. Sometimes, he just wanted to be alone. He also said that he had difficulty remembering events of six years ago. I accept that evidence.
Having considered the claimant’s evidence, the evidence of his lay witnesses and the evidence of Mr Abaie, I accept that the claimant’s mental health had improved considerably, prior to the motor accident. He had formed a relationship and intended to marry. I accept that he was looking for work.
However, if I am wrong in that regard, I do not think it is of much relevance whether the claimant’s mental health state had improved, prior to the motor accident, or not. It is trite law that the wrongdoer must take the victim as he is found. The parties agree that the claimant suffered very serious physical injuries. Whether those injuries overlay pre-existing mental health issues, or whether they cause aggravation or deterioration of those previous mental health issues, does not seem to me to make difference, in the assessment of damages.

DETERMINATIN OF ISSUE 2 – NON-ECONOMIC LOSS

The parties agree that the claimant is entitled to an award of damages for non-economic loss. The maximum amount of damages for non-economic loss currently is $605,000 as indexed. Section 1.4 of the Act defines non-economic loss as meaning:
(a)   pain and suffering;
(b)   loss of amenities of life;
(c)   loss of expectation of life, and
(d)   disfigurement.
The parties agree that the claimant has a statistical life expectancy of about 33 years. There is no medical evidence that his life expectancy has been reduced by reason of the motor accident. As to (d) above, I have had regard to the photographic evidence of the claimant’s extensive skin grafts and surgical scarring.
As to (a) and (b) above, the claimant has provided a statement dated 1 October 2020 and a further statement dated 17 April last. He has provided a statement dated
5 May 2020 by his friend, Sheryle Wilson, whom Mr Young did not require for questioning. As the claimant’s credit has not been impugned, I accept the contents of his statements, as I do Ms Wilson’s statement. At paragraph 35 of his first statement, the claimant says as follows:
“As a result of the injuries I sustained in the motor accident, I am in constant pain. I limp and have lost my ability to walk normally. I cannot stand up for more than 1 minute. I cannot sit down for more than 5 minutes. I cannot drive for more than 5 to 10 minutes and I cannot carry more than 1 to 2 kilos. I know I will not be able to return back to work. I suffered both psychological and physical harm due to the accident. The accident has caused me to suffer from multiple and severe injuries and there has been a significant exacerbation of my pre-existing psychological condition. The subject accident had also affected my intimate relationships.”
In his recent statement, the claimant confirms his ongoing physical limitations and constant pain. He is restricted in walking and driving. He can no longer enjoy bush walking, dancing, jogging or running. He can only use a fixed bicycle at the gym. It is to his credit that he attends the gym to maintain his fitness as best he can. He is no longer able to undertake air travel overseas. He lost the possibility of marriage and starting a family.
The parties agree that the claimant underwent numerous surgical procedures after the motor accident. There is disagreement as to the exact number of such procedures. It is submitted for the claimant that there were 22 such procedures. The insurer concedes at least 14 operative procedures.
The parties agree that the claimant was hospitalised from 5 April 2018 to 15 June 2018, and then from 21 December 2018 to 15 March 2019. The parties also agree that the claimant still has metal fixtures in his left leg which may require further surgery for their removal.
The claimant has been assessed by Dr Yuk Kai Lee, orthopaedic surgeon, as having a combined 36% whole person impairment caused by the motor accident. The insurer’s Dr Stephen Rimmer, orthopaedic surgeon, assesses 12% whole person impairment. The differences are mainly in their respective assessments of WPI for the left leg and both shoulders. Having regard to the opinions expressed by Dr Andrew Porteous, occupational physician, I think that Dr Lee’s assessment of whole person impairment is likely to be more accurate.
Dr Rimmer finds that the condition of the claimant’s low back is not related to the motor accident. Dr Lee and Dr Porteous say that, if it was pre-existing, then at least the motor accident was a cause of aggravation, degeneration or exacerbation of that condition, which I accept.
Mr Taylor submitted that, assessed in accordance with common law principles, the claimant should be awarded almost the maximum amount allowed for non-economic loss. He said that the current maximum of $605,000 is a statutory cap, not a reference to a most extreme case. As much can be accepted. Mr Taylor noted that the claimant will have more surgery to remove the rods and anchors in his left leg. He submitted that an amount up to $600,000 would be appropriate.
Mr Young submitted for the insurer that the impairments assessed by Dr Lee are overstated and that I should not accept his clinical findings. Mr Young said that
Dr Rimmer should be preferred. I have stated my findings in that regard.
The insurer’s written submission referred me to my previous decisions in Zheree v CIC Allianz Insurance Limited [2022] NSWPIC 400 and Mathews v QBE Insurance (Australia) Limited [2022] NSWPIC 226. Mr Young submitted that the present case is not dissimilar to Mathews and that fair and reasonable compensation would be in the range of $250,000 to $285,000 in the circumstances of the present case. I observe that every case turns on its own particular facts.
In further written submissions for the claimant, it was put that the concept of proportionality required by Reece v Reece ie that someone older is awarded less damages, is specifically inapplicable to an assessment of non-economic loss as required by s 4.11 of the Act. I do not accept that submission. In the absence of authority to the contrary, I think that an assessment of damages for non-economic loss requires me to take into account the claimant’s age, in accordance with common law principles.
I am satisfied that the motor accident has had a significant impact on the claimant’s quality of life and will continue to do so. I accept that the claimant’s physical injuries and aggravation of his pre-existing mental health issues, attributable to the motor accident, will adversely affect his life significantly. I have had regard to the claimant’s age and the negative impacts that his impairments will have upon his ability to pursue his preferred activities, pastimes and social interactions.
I have attempted to assess damages for non-economic loss in accordance with common law principles as modified by the Act. Having considered the evidence and the parties’ submissions, as well as having observed the claimant, I allow $450,000 for non-economic loss.

COSTS AND DISBURSEMENTS

I assess the claimant’s legal costs and disbursements in accordance with the attached sheet. The assessment conference occupied three hours. I allow Ms Wilson’s witness expenses in an amount equivalent to her net wage for one day.

[2023] NSWPIC 254

29 May 2023