Li v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 127
•29 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Li v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 127 |
| Claimant: | Yang (Dante) Li |
| insurer: | Insurance Australia Limited trading as NRMA Insurance |
| Member: | Susan McTegg |
DATE OF DECISION: | 29 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS Motor Accident Injuries Act 2017; claim for damages; the claimant was a pedestrian when the insured vehicle collided with him; insurer alleged contributory negligence of 30% on the basis the claimant had not kept a proper lookout; the claimant sustained closed head injury; fracture of the right clavicle; neck injury; multiple lacerations and abrasions; chronic major depressive disorder with anxious distress; pre-injury claimant self-employed as graphic designer; Held – claimant honest witness; the claimant should have been alert to the presence of vehicles turning into Mimosa Street, the claimant failed to keep a proper lookout; as per Podrebersek v Australian Iron and Steel, contributory negligence assessed at 15%; past economic loss agreed; non-economic loss; claimant 34 years of age with life expectancy of 49 years with limited expectation of improvement; psychological illness caused the claimant to live a restricted and diminished life; lack of motivation and energy, impaired concentration and focus; fatigued and tired most days; most likely future circumstances was continued self-employment as a graphic designer; future economic loss assessed on the basis of total incapacity for next five years and thereafter on basis could return to work 15 hours per week until age 67 years; likely earnings assessed having regard to accountants report; Held – total damages assessed in sum of $967,809.48 after reduction for contributory negligence; costs assessed in favour of the claimant. |
| determinations made: | Certificate Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of Claim for Damages made in accordance with s 7.36 of the Act 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. The claimant’s damages to be reduced for contributory negligence assessed at 15%. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the MAI Act), I specify the amount of damages for this claim as $967,809.48. 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim is $105,351.24 inclusive of GST. 4. Attached to this certificate are reasons for my assessment. |
REASONS FOR DECISION
Issued under s 7.36(1) of the Motor Accident Injuries Act2017
INTRODUCTION
Yang (Dante) Li (the claimant) sustained injury in a motor vehicle accident on 16 April 2019 (the accident). There is a dispute about the circumstances of the accident.
I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of the injury sustained by the claimant.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
Mr Li lodged a common law claim for damages dated 20 January 2021.
In a liability notice issued under s 6.20(1) of the MAI Act dated 12 March 2021 the insurer admitted liability for the claim and alleged contributory negligence of 30%.
The claim was listed for assessment on 15 March 2023. Mr Li was represented by Mr Dean-Lloyd Del Monte of counsel instructed by Mr Stephen Matthews of Turner Freeman Lawyers. Ms Fatima Reslan from Turner Freeman was present as an observer. The insurer was represented by Mr Ben Wilson of counsel instructed by Mr Roni Aloe of McCabes Lawyers.
On a without prejudice basis to the claim for future economic loss the parties agreed past economic loss for the 204 weeks since the date of accident totals $160,695.96.
The parties agreed the Fox v Wood component representing taxation payments deducted from statutory payments made pursuant to s 3.40 of the Act totals $12,504.
The issues in dispute are the following:
(a) contributory negligence by the claimant, and
(b) the assessment of damages.
In addition to those matters agreed I am asked to assess damages in respect of the following:
(a) non-economic loss, and
(b) future economic loss.
TRANSITION OF EXISTING DISPUTES TO THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) commenced operation on 1 March 2021. The former Dispute Resolution Service was abolished by cl 3 of Division 2 of Part 2 of Schedule 1 to the Personal Injury Commission Act2020, (the PIC Act). The PIC Act and Regulation establishing the Commission provide that a new decision-maker may determine pre-existing disputes in accordance with the previously applying legislation.
Clause 14B(4)(c) of Schedule 1 of the Personal Injury Commission Regulation 2020 provides that the provisions of any Act, statutory rule or other law that would have applied to determine the proceedings, had the PIC Act not been enacted, continue to apply.
THE RELIABILITY OF THE CLAIMANT’S EVIDENCE
I had the opportunity to assess Mr Li during the assessment conference. His appearance was somewhat dishevelled, his tracksuit pants torn. He was softly spoken, responsive and appeared a little anxious. He did not require the assistance of the interpreter who was available by telephone for the first hour of the assessment conference. I formed the view he was a witness of integrity who gave his evidence honestly.
LIABILITY
The accident occurred at the offset T intersection of Mimosa Street and Clyde Street, Granville. The offset street on the opposite side of Clyde Street is Membrey Street. The accident occurred at 8.15pm on 16 April 2019 when it was dark. The weather was fine.
Lighting is provided by two lights mounted near the corner of Membrey Street and Clyde Street and a light at a pedestrian crossing on Clyde Street, approximately 15m north of Mimosa Street. There is no light at the corner of Mimosa Street, only streetlights but the first one appears 42m from the intersection and does not cast light near the entry to Mimosa Street from Clyde Street.
The claimant’s statement
The accident occurred on 16 April 2019. Mr Li was walking along Clyde Street, Granville on his way to Granville Railway Station. As he crossed Mimosa Street he was struck by the insured vehicle and knocked to the ground. The claimant does not recall anything after the accident, his first memory is of waking up in Westmead Hospital.
The following is a Google Street View as of December 2018 as reproduced in the report of Dr Rechnitzer:
[image unable to render]
The police report
Police report Event Ref No. states:
“About 8.15 pm on 16/04/2019, a silver Toyota Aurion was travelling north along Clyde Street, Granville when approaching Mimosa Street, Granville. DRII was stationary at the cross of Clyde Street and Mimosa Street before it turned into Mimosa Street at a stated speed of 20 km/h. As VEH 1 turned into the street DRII has caused the front offside of the vehicle to collide with the PED who was positioned south to the middle of the road. As a result of the collision, no damage was sustained to VEH1….
About 8.30pm, Police attended the location and observed the PED laying on his back bleeding and being treated by Paramedics. Police obtained a driver version from DRII. DRII stated that he was turning into the LOC and was unable to see the PED due to the area being too dark. He further stated that he was only aware of hitting the pedestrian when he heard a bang and the PED say: ‘Ahhh’. DRII has found the PED laying down on the road bleeding. DRII stated that the PED was repeatedly asking what happened to the DRII said “Stay still I’m calling the ambulance …”
Ambulance report
The ambulance report states inter alia:
“OA Pt lying supine in middle of road, … according to driver of vehicle, Pt was walking across the intersection as the vehicle was turning the corner. Driver states he was doing approx. 30 km per hour and vehicle has collided with Pt. Pt striking the front centre of the vehicle. Nil obvious damage or markings to vehicle. Driver states Nil LOC of Pt, just repetitive questioning. OE nil major haemorrhage identified, some bleeding noted from occipital region…”
Statement of Hussein Akil
The insured driver Hussein Akil provided a version to Detective Senior Constable Schultz which was recorded in Police Notebook F654005 and signed by Mr Akil. That entry reads:
“Q.Were you the driver of motor vehicle DE94WK a Toyota Aurion when it was involved in a collision at 8.15 pm at Mimosa Street, Granville cross of Clyde St?
A. Yes.
Q. How fast were you going?
A. No more than 20 km.
Q. Did you have your seat belt on?
A. Yes.
Q. Did you have your headlights on?
A. Yes.
Q. Have you taken any drugs or alcohol?
A. No.
Q. Were your airbags deployed?
A. No.
Q. Do you have any injuries?
A. No.
Q. What happened?
A.I was coming from Membry Street, coming towards Mimosa. So turned left onto Clyde and put my blinker right and waited for a car to go. I then turned right and hit him. I didn’t see anything and it was dark.
Q.I am going to ask you some questions in relation to the collision. You do not have to say or do anything if you do not want to and anything you say or do I will record and I use this recording in court. Do you understand?
A. Yes.
Q. Where did you hit the pedestrian?
A. The front drivers side guard near my mirror?
Q. Did you see him before turning?
A. No it was too dark to see anyone on this street.
Q. Did he fall down?
A. Yes, I heard a thump and him say “ahh”.
Q Where was he when you got out and looked?
A. To the right side of the middle of the road.
Q. Was he injured?
A.He was bleeding and asking what happened, I said “stay I’m calling the ambulance”.
Q. Is there anything you could have done to avoid the collision.
A.No. If there was more lighting I could have seen him, but I didn’t see him.”
Statement of Hussein Akil dated 7 August 2019
Mr Akil provided a statement to an investigator on 7 August 2019. Adopting the numbering used in that statement I refer to the following relevant paragraphs:
“21. I was driving and I was wearing my seatbelt.
25.The accident occurred as I was turning into Mimosa Street from Clyde Street on 16 April 2019 at about 9.00pm.
26.I was travelling north on Clyde and making a right hand turn into Mimosa Street.
27. It was dark and I had my vehicle’s headlights on.
28.The street lights were on Clyde Street but there are no street lights on Mimosa Street where the accident happened.
29. The weather conditions were dry.
30. Visibility was good.
32. I am familiar with the area because I have lived in the same area since about 2011.
34. I was travelling at about 10 kilometres because I was making a turn.
35. I didn’t see anybody crossing the road.
36. I started making my turn.
37. My driver’s window was open.
38.I saw out of the corner of my eye a person running towards my driver’s door from my right hand side and he ran into my vehicle.
39. I stopped my vehicle and saw a pedestrian on the roadway.
40.I moved my vehicle out of the traffic and then went back to the pedestrian.
41. He had turned over and was asking me what had happened.
42.He didn’t know what had happened and I told him that he had run into my vehicle.
44. I did not see him before the collision.
45.I am pretty sure that he was on the phone at the time but I didn’t see the phone afterwards.
46.I believe that the pedestrian is at fault because he was crossing the road in a dark area and he was running believing he could beat traffic.
47 . The airbags did not deploy.
48. I could see blood on the top of his head.
49 . I called the ambulance.
50. When they arrived I told them what happened.
51.Police attended at the accident scene. I gave a statement to police at the accident scene. I was interviewed by Constable Schultz.
56. The vehicle which I was driving did not suffer any damage.”
Attached to that statement is the following diagram signed by Mr Akil.
[image unable to render]
Statement of Hussein Akil dated 18 September 2019
Mr Akil provided a further statement to the investigator on 18 September 2019. Adopting the numbering used in that statement I refer to the following relevant paragraphs:
“5.This statement is further to the earlier statement that I have made in this matter.
6.I did not see the pedestrian immediately before the accident.
7.I assumed that he was running towards my vehicle only after the accident occurred.
8.The first time I saw the pedestrian was after I had commenced to make my turn into Mimosa Street and he appeared at my driver’s side window.
9.I did not see him beforehand.
10.I did not see him before I had started to make my turn into Mimosa Street.
11.The pedestrian collided with my driver’s side door.
12.There was no impact with any other part of my vehicle.
13.There was no damage to any part of my vehicle.
14.The only action I could take when I saw the pedestrian at my driver’s side window was to brake immediately.
15.I could not take any other action before that as I did not see him before he appeared at my driver’s side window.”
Oral evidence of Hussein Akil
Mr Akil gave evidence by video-link.
He confirmed after the accident he moved his car home which was 20 to 25m from the accident site.
Surprisingly, Mr Akil stated whilst he had previously said the claimant hit the driver’s side of his vehicle he, in fact, hit the passenger side.
He said he drove down Membrey Street and turned left into Clyde Street. He stated his vehicle was facing directly north while he waited for one or two cars to pass. He then put his blinker on and turned right into Mimosa Street. He heard a loud thump and saw a man on the ground. Whilst he was initially concerned the claimant had been killed he was relieved when he saw him getting up. He agreed the claimant posed repetitive questions about what had happened.
Mr Akil stated by the time the ambulance arrived Mr Li was sitting on the kerb. Mr Akil disputed the ambulance entry which stated the “patient was lying supine in the middle of the road”. Mr Akil also denied providing the ambulance officers with any details about the accident. He reported the police took his statement and then walked him home to inspect his car. He confirmed there was no damage to his vehicle.
Mr Akil stated the speed of his vehicle was not more than 20 kmph.
When asked whether the front of his vehicle collided with the claimant Mr Akil initially agreed it was the front drivers side guard near the mirror but subsequently stated it was the front passenger side door. He denied telling police the claimant collided with the front driver’s side.
When questioned Mr Akil initially stated he saw a shadow on the passenger side, although when he was subsequently asked if he saw the claimant before turning he said it was too dark to see anyone on that street.
Mr Akil agreed that Membrey Street and Mimosa Road were slightly offset and agreed if he was stationary in his car in Membrey Street the headlights of his car faced down Mimosa Street. Mr Akil reiterated he came to a complete stop in Clyde Street facing north waiting for cars to pass before turning right into Mimosa Street.
Mr Akil was questioned about his driving record. He was vague about the details but conceded his licence had been suspended for three to six months for speeding and on more than one occasion he had not been able to drive due to licence restrictions. Due to the accident Mr Akil conceded he had paid a fine and lost three demerit points on his licence.
Report of Dr George Rechnitzer, collision reconstruction expert
Dr Rechnitzer provided a report at the request of the claimant dated 26 May 2022. Due to COVID-19 restrictions Dr Rechnitzer was unable to conduct a site inspection but he relied upon photographs obtained by a professional photographer.
At that time Dr Rechnitzer stated the path of the insured vehicle was unclear. He analysed two scenarios, firstly scenario 1 where Mr Akil’s vehicle was eastbound on Membrey Street, left at Clyde Street and right at Mimosa Street and scenario 2 where Mr Akil’s vehicle was north on Clyde Street and right at Mimosa.
Based on the evidence of Mr Akil it is agreed that scenario 1 is the correct path although
Mr Akil states that even though his vehicle travelled from Membrey Street, it turned into Clyde Street, and became stationary facing due north before turning right into Mimosa Street.Dr Rechnitzer concluded the lighting conditions on the entry to Mimosa Street were poor.
Dr Rechnitzer found that it was likely Mr Li had commenced crossing before Mr Akil made his turn into Mimosa Street.
Having regard to the dog-leg nature of the intersection Mr Rechnitzer assumed Mr Akil’s vehicle was angled towards Mimosa Street or conducting the turn in one continuous movement and not facing north when stationary in Clyde Street as asserted by Mr Akil in his oral evidence. In that scenario Mr Rechnitzer concluded Mr Akil should have been able to see the claimant up to two seconds before impact, illuminated by the vehicle’s headlights.
However, if as Mr Akil states he was facing north whilst stationary in Clyde Street waiting for vehicles to pass Dr Rechnitzer concluded it was less likely, but still possible, that Mr Akil could have seen Mr Li in time to avoid him.
Report of Mr Michael Griffiths, mechanical engineer
Mr Griffiths provided a report at the request of the insurer dated 31 October 2022. Mr Griffiths was asked to assume, inter alia, the following:
(a) the insured driver was travelling at no more than 10 kmph at the time of the accident;
(b) the insured driver had come to a stop facing North in Clyde Street. Once an oncoming vehicle had passed, he commenced his turn to the right into Mimosa Street, and
(c) the pedestrian was travelling north on the westerns side of Clyde Street and came into impact with the driver’s door of the insured’s vehicle.
Mr Griffiths criticised Dr Rechnitzer’s report on the basis none of his conclusions had a pedestrian surrogate and none of the images he used in reaching his conclusions had any vision of the potential pathway of the claimant because the images were truncated to the driver’s right.
Mr Griffiths interpretation of the documents provided was that before turning into Mimosa Street, the vehicle was stationary, facing north, waiting for an oncoming vehicle to pass whilst Dr Rechnitzer’s interpretation was that Mr Akil possibly conducted his turn from Membrey Street into Mimosa Street in one continuous movement.
Mr Griffiths concluded if Mr Li had impacted with the right side of the right front mudguard of the vehicle in front of the right front exterior rear view mirror he would have expected some deflection or damage to the projecting mirror. In the absence of such damage or deflection he deduced that Mr Li had impacted the driver’s door just behind the right side exterior rear view mirror. Mr Griffiths concluded that the lack of contact with the right-side exterior driver’s side mirror indicates Mr Li was travelling relatively quickly to contact the side of the vehicle without first having contact with the projecting exterior rear view mirror.
Mr Griffiths concluded a limiting factor for the insured driver was whilst waiting for gaps in the oncoming traffic his central field of vision would have been looking towards the overhead floodlights of the pedestrian crossing and the headlights of the oncoming vehicle, that is, his vision was “accommodated” to bright lights whilst the street he was turning into was poorly illuminated. However, he found the route of Mr Li was along the footpath with low levels of street lighting so his eyes would have been accommodated to very low levels of light.
Mr Griffiths found because Mr Li came into impact with the side of the vehicle he would never at any time have been in the forward path of the vehicle and would never have been illuminated by the low beam headlights of the insured’s vehicle.
Mr Griffiths found there were cues available to the claimant including:
(a) the vehicle was stationery waiting to make its turn whilst waiting for the oncoming vehicle to pass;
(b) the vehicle was easy to discern because of headlights, tail lights and the right hand turn indicator;
(c) as the vehicle commenced its turn the sweep of its headlights would have provided a bright pool of illumination on the footpath, fencing and housing directly ahead of Mr Li, and
(d) the noise of the vehicle’s engine may have been detectable whilst it paused and then accelerated.
Supplementary report of Dr George Rechnitzer
Dr Rechnitzer provided a supplementary report dated 13 February 2023 after undertaking a site inspection on 24 January 2023 including dusk/night observations.
Dr Rechnitzer found from his site inspection that the two sets of street lights on the north side of the intersection provided some illumination in Mimosa Road, although it was unknown if that was the position at the time of the collision.
Dr Rechnitzer concluded Mr Akil should have been able to see the pedestrian for approximately two seconds or more before impact and been able to avoid a collision. This was on the basis the vehicle was not facing northbound on Clyde Street.
Dr Rechnitzer suggested assuming Mr Li observed Mr Akil’s vehicle he may have expected it to pass in a more northerly position relative to Mimosa’s Street’s notional centreline but it travelled closer to the middle of Mimosa Street “cutting in” on Mr Li with the driver’s side of the vehicle impacting him. Mr Rechnitzer considered this a more likely scenario than one where Mr Akil simply walked into the side of the passing Toyota.
Keeping in mind we are addressing the conduct of the claimant Mr Rechnitzer suggested a common form of pedestrian road crossing behaviour is for the pedestrian to be on the road as the car is passing them, timing their forward movements such that the vehicle, even if travelling at speed, passes by them with a short distance gap. He suggested this may have been the behaviour of Mr Li.
Dr Rechnitzer also suggested Mr Li may have observed Mr Akil’s vehicle stopped in Clyde Street waiting for the southbound vehicle to pass and thought he was going to give way to him.
Was the claimant contributorily negligence
The following inconsistencies are apparent in the evidence of Mr Akil:
(a) in his initial statement to police and in his oral evidence, he stated he was travelling at not more than 20 kmph but in his statement dated 7 August 2019 he stated he was travelling at about 10 kmph;
(b) in his initial statement to police, he stated he hit the claimant on the front driver’s side guard near the mirror; in his statement dated 18 September 2019 he said the claimant collided with his driver’s side door; in his oral evidence he said the claimant hit the front passenger side of his vehicle;
(c) in his initial statement to police he did not see the claimant before turning; he heard a thump and heard him say “ahh”, in his statement dated 7 August 2019 at paragraph 38 he said he saw out of the corner of his eye a person running towards his driver’s door on the right hand side who ran into his vehicle, at paragraph 44 he said he did not see him before the collision, and at paragraph 45 he stated he was pretty sure that he was on the phone at the time; in his statement dated 18 September 2019 at paragraph 6 he said he did not see the claimant immediately before the accident; at paragraph 8 he stated the first time he saw him was when he commenced to make his turn into Mimosa Street and he appeared at his driver’s side window; at paragraph 9 he stated he did not see him beforehand; and at paragraph 15 he stated he did not see him until he appeared at his driver’s side window; in his oral evidence he said he saw a shadow on the passenger side but he subsequently said it was too dark to see anyone on that street, and
(d) in his statement to the police Mr Akil said the claimant was on the right side on the middle of the road and he told him to stay; in his oral evidence he said the claimant was sitting on the kerb when the ambulance arrived although the ambulance report stated the claimant was lying supine in the middle of the road when they arrived.
Mr Del Monte submitted I would not find any culpability on behalf of the claimant. Mr Del Monte submitted where the evidence of Mr Akil was unreliable it was not reasonable to accept his version of how he manoeuvred his vehicle or where the claimant collided with the vehicle. He noted the claimant was halfway across the road at the time of the collision suggesting it made sense to find he collided with the front of the vehicle.
Mr Del Monte suggested I would not accept the opinion of Mr Griffiths where I could not be satisfied as to the accuracy of the assumptions he relied upon.
Mr Wilson for the insurer agreed with Mr Del Monte that Mr Akil was an unreliable witness and that his oral evidence as to the collision occurring on the passenger side of his vehicle was clearly wrong. However, he relied upon the decision in Saravinovska v Saravinovska (No 6) [2016] NSWSC 964 to submit the fact that a witness has lied about one thing does not automatically mean they are to be disbelieved about everything else. Therefore, it is not necessary to reject a witness’ evidence in its entirety.
Mr Wilson submitted there was some culpability on the part of the claimant where it was dark at the time of the collision, the vehicle had its headlights on, the vehicle stopped and waited for an oncoming car to pass, the vehicle had its right turn indicator on, and the collision occurred between the side of the vehicle and the claimant.
Mr Wilson submitted there is no reason to exclude Mr Akil’s statement to the police. I agree. The statement is contemporaneous, made at the scene shortly after the accident and at a time when Mr Akil was more concerned about the injury to Mr Li than trying to present a version of the events favourable to himself. Notwithstanding the inconsistencies outlined above, Mr Akil has consistently said it was dark at the time, the lighting was poor, his headlights were on, and that after turning out of Membrey Street he stopped on Clyde Street and indicated right before turning right into Mimosa Street.
I do not propose to have regard to the history recorded in the ambulance report that Mr Akil was doing approximately 30 kmph and that the claimant struck the front centre of the vehicle where that history is denied by Mr Akil, where it is not consistent with the version he provided to police at the scene and where it is not possible to establish the source or accuracy of that version.
Whilst there is some dispute about which part of the car collided with the claimant there is no evidence to establish that it was a head on collision. I accept the version provided by Mr Akil to the police, that is, that Mr Li collided with the front driver’s side guard near the mirror. Whether or not the mirror deflected was not clear but it is difficult to read anything into the presence of a question mark beside the word ‘mirror’ in the police statement.
Photographs 3 to 15 in Mr Griffith’s report and clips 4 and 5 in the supplementary report of Dr Rechnitzer show the poor lighting at the entry to Mimosa Street. Whether or not Mr Akil’s vehicle was facing due north whilst stationary on Clyde Street waiting to turn right or was angled towards Mimosa Street I am satisfied there were cues which should have alerted the claimant to the presence of the vehicle. I find the vehicle was easy to discern because of its headlights and tail lights and the use of the right hand indicator. As the vehicle commenced the turn into Mimosa Street the sweep of those headlights would have illuminated the road and possibly the footpath, fencing and housing, all of which were in front of the claimant.
In leaving the footpath and crossing Mimosa Street the claimant should have been alert to the presence of vehicles travelling in Mimosa Street and to the presence of vehicles turning into Mimosa Street from Clyde Street. Regardless of whether Mr Akil’s vehicle was facing due north it was stationary and indicating to turn right into Mimosa Road and the claimant should have been alert to its presence. I find the claimant failed to keep a proper lookout and crossed the road when it was unsafe to do so.
My conclusions as to the claimant’s departure from the standard of care of the reasonable person is supported if, as suggested by Mr Rechnitzer he timed his forward movements to ensure the vehicle passed him with a short distance gap or he assumed the vehicle was going to give way to him.
In Podrebersek v Australian Iron and Steel (1985) 59 ALR 529 (Podrebersek) the High Court at [10] stated:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage …and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.”
The insurer submits an appropriate reduction for contributory negligence would be 30%. However, weighing up the comparison of culpability as per Podrebersek I am satisfied that the degree of departure from the standard of the reasonable person displayed by the claimant in the circumstances would amount to a finding of contributory negligence of 15%.
THE ASSESSMENT OF DAMAGES
The evidence
The claimant provided statements dated 21 January 2021, 10 February 2022, 19 May 2022 and 23 August 2022 and he also gave oral evidence at the assessment conference.
At the time of the accident, he was 30 and he is currently 34 years of age.
He was born and raised in China as an only child. He completed a bachelor’s degree in fine arts in Boston, USA in 2012. Whilst a college student he worked in the school post office, in the labs and dormitories.
Mr Li migrated to Australia in 2013 and for the first six to eight months worked in a factory and as a waiter. He is now an Australian citizen. His mother is also an Australian citizen whilst his father resides in Thailand.
In 2013 he commenced employment as a graphic designer for SAL Lighting. He continued working with SAL Lighting on a full time basis until 2018.
In 2016 he commenced concurrent work as a graphic designer as a sole trader. After ceasing work with SAL Lighting in 2018 he worked solely on his own account for his own graphic design business, En-Sof. En-Sof was an art related trading business involved in the design and sale of art. Mr Li generally designed the art. He did not have an online presence but marketed his business by attending conventions. He described attending conventions in cities in Australia including Melbourne, the Gold Coast and Brisbane, in New Zealand and in Shanghai, China. He planned to attend a convention in Japan before the accident intervened. Mr Li states had the accident not occurred he intended to continue work as a self-employed graphic designer.
The accident occurred on 16 April 2019. Mr Li was conveyed to hospital by ambulance. He described waking up in Westmead Hospital with a laceration to his scalp and other cuts and abrasions over his body. Photographs have been provided to verify those injuries. He also suffered a fracture of the clavicle. Mr Li was amnesic as to the events of the accident. He underwent investigations in hospital and was discharged the following day.
The claimant asserts he sustained the following injuries as a result of the accident:
(a) closed head injury;
(b) multiple lacerations and abrasions to the head and hands;
(c) cervical spine injury;
(d) fracture of the right clavicle (right shoulder);
(e) chronic major depressive disorder with anxious distress;
(f) generalised anxiety disorder with panic attacks, and
(g) traumatic closed brain injury.
Mr Li states following his discharge from hospital he continued to experience headaches and dizziness and pain and stiffness in his neck. These symptoms continue. He states he became increasingly anxious and depressed. He has significant insomnia. He stopped driving and last year he sold his car. His evidence was four months ago he tried to drive but he was so nervous he would run into someone he decided not to.
Mr Li came under the care of Dr Mohammad Baba, orthopaedic surgeon in relation to the fractured clavicle. He also underwent physiotherapy treatment from July 2019 until
October 2019 and again in February 2020.In his statement dated 10 February 2022 Mr Li stated he continues to experience pins and needles and a burning sensation in his clavicle, episodes of numbness in his right hand, and weakness and loss of strength in his right arm.
On 2 August 2019 Mr Li attended Westmead Hospital by ambulance in relation to a panic attack. He thought he was going to die because he could not breathe and his heart was beating fast. Shortly afterwards Mr Li was referred to Dr Kumagaya, psychiatrist who he saw until 2021. He also sought treatment from a psychologist. Mr Li stated since 2019 he has experienced panic attacks six or seven times. He said medication has lessened the symptoms but the panic attacks have occurred when he has been unable to sleep for two to three days.
Mr Li has suffered from significant insomnia which causes him to become very tired during the daytime. At the time of his consultation with Dr George, he had ceased taking medication due to his concerns about the effect of long term medication and the possible side effects. However, it did not go well and he concluded it was better to take a sleeping pill even though the following morning he can feel drowsy, with headaches and dizziness and occasionally the experience of whole-body paralysis.
Mr Li’s medication is now managed by his general practitioner (GP). He is currently taking Lovan or Fluoxetine 60 mg per day (noting he was commenced on 10 mg per day in September 2019), Quetiapine 25 mg per day for sleep and Panadol when he feels the need for pain in the right shoulder, neck and sometimes the lower back. In his statement dated
10 February 2022 Mr Li states Dr Kumagaya increased the prescription of Fluoxetine to 60 mg per day due to problems with his mood, motivation, energy levels, anxiety levels, concentration and restlessness.Mr Li stated his lack of concentration makes it hard for him to organise, plan and prioritise tasks. He stated he becomes very irritable and frustrated easily. Until more recently he would forget to eat meals but he said recently his appetite has improved. Mr Li stated he tries to read the Bible most days and reads fiction. He stated he still has design ideas but finds it difficult to execute them.
In his initial statement Mr Li stated he rarely socialised and generally his only contact with people was over the internet. When questioned Mr Li agreed he now attends church at West Ryde every week on Saturday to observe the Sabbath and he also participates in a bible study group. The bible study group is online and up to 12 persons participate. Mr Li stated he knows those persons, but generally they are older and whilst he respects them he would not say they were friends. He also attends the local shops weekly and he tries to exercise as recommended by his GP and psychologist. His evidence was on two days a week he will walk around his block, a walk of about 15 minutes. When asked if he knew his neighbours he stated not really, he speaks with one or two of them during Strata meetings which are held on zoom.
Mr Li’s evidence was he has not returned to work since the accident.
Mr Li stated he met with On Track Rehabilitation in his apartment in May 2019. He understood On Track would provide job seeking advice and thereafter he attended several meetings in the library designed to re-write his resume and help him apply for jobs. Mr Li stated he did not hear from On Track after November 2019.
Mr Li agreed he has spent some time learning a new software programme called “Unity”. This programme is designed to teach coding. He indicated when he was young coding was an interest and he thought it might be an alternative career path. He is not an online gamer. Although he was not doing the programme now he said he could pick it up again. Mr Li seemed ambivalent about the coding course, stating he did not enjoy it but also he did not hate it. He stated he did not think he could turn coding into business where he was a beginner and had only undertaken the coding programme for about five months for about one hour per week.
Mr Li said he is worried about what he can do moving forward. Whilst he still has graphic design skills he cannot work for more than one hour because his right arm becomes painful if he uses a mouse for too long. He is currently sleeping six to seven hours with the use of Quetiapine. Mr Li said he has not been able to return to work because of his depression, he is afraid to talk to people, he is afraid of people’s responses, he has been locked in for a long time and he feels the future is uncertain. He agreed he would like to return to work but subject to allowances being made for his limitations.
THE MEDICAL EVIDENCE
Treating medical evidence
Royal Prince Alfred Hospital
The discharge summary stated the injuries were a scalp laceration, a right clavicle fracture and superficial abrasions to the right hand, wrist and elbow. A CT scan of the brain showed a scalp haematoma with no intracranial abnormality. The CT scan of the cervical spine showed no definite abnormality. Trauma CT scan showed a fracture of the lateral aspect of the right clavicle with no disruption of the acromioclavicular joint. A further mobile X-ray of the chest is reported as showing a mildly displaced fracture of the lateral aspect of the right clavicle.
Clinical notes of Workers Doctors
The clinical notes document the claimant’s attendance on 20 May 2019 when he recorded the claimant was a pedestrian hit by a car. On that occasion complaints were reported to the right shoulder, headache and dizziness. On 21 May 2019 Mr Li complained about his right shoulder and right elbow and on 31 May 2019 Dr Calvache-Rubio recorded ongoing shoulder and clavicular pain and ongoing neck pain. He reported the lower back was improving but he reported symptoms of post-concussion syndrome including dizziness, headaches and concentration problems. Mr Li was referred for physiotherapy and to a psychologist.
As of 4 September 2019, the claimant reported persistent right shoulder pain but thereafter the focus of the clinical notes relates to the psychological symptoms with intermittent complaints about ongoing right shoulder and neck pain and headaches.
On 20 September 2019 Alan Hyunh, psychologist reported Mr Li presented with anxious and dysphoric mood. His constant worrying throughout the day resulted in insomnia. He reported worrying about his future, his career, and loss of income due to his right shoulder injury and being unable to work.
In certificates of capacity dated 14 February 2023 and 23 February 2023 Dr Calvache-Rubio has continued to certify Mr Li with no capacity for work.
Report of Dr Eric Lim, GP
Dr Lim reported Mr Li first presented for consultation on 20 May 2019 in respect of injury sustained in the accident. He reported injuries to the head, neck, back, shoulder and psychological injury. He described the symptoms as headaches, dizziness, loss of consciousness when the accident happened, amnesia, haematoma to the right posterior parietal scalp, left facial bruise, neck pain and stiffness, right shoulder pain, restriction of movement, lower back pian, trouble sleeping, worried, anxious and cautious to drive, poor memory and impaired concentration. He stated Mr Li had no capacity for work.
Dr Mohammed Baba, orthopaedic surgeon
On 13 May 2019 and again on 3 June 2019 Dr Baba reported the fracture of the clavicle was healing in an adequate position. On 3 June 2019 Dr Baba referred Mr Li for physiotherapy to start range of motion strengthening exercises.
An MRI scan of the right shoulder on 7 June 2019 showed persisting reactive bony oedema with surrounding inflammatory change. There was also bursitis and a reported tiny posterior supraspinatus tear.
On 22 August 2019 Dr Baba noted persisting pain due to bursitis despite the healed right clavicular fracture and on 18 September 2019 Mr Li underwent an ultrasound guided steroid injection of the right shoulder.
On 18 November 2019 Dr Baba reported the shoulder pain had settled, Mr Li had good range of motion and reasonable strength in his shoulder and was tolerating his symptoms.
Dr David Kumagaya, psychiatrist
Dr Kumagaya first saw Mr Li on 12 September 2019. He reported Mr Li continued to complain of head, neck, shoulder and lumbar spine injuries with an associated deterioration in his mental state. He reported decreased energy, attenuated enjoyment of previously pleasurable activities, concentration difficulties, initial insomnia and guilt with respect to his involvement in the accident. He diagnosed a major depressive disorder.
On 28 November 2019 Dr Kumagaya reported a worsening of his mood. His total sleep time was attenuated to one to four hours every night. He was experiencing panic attacks two to three times a fortnight. Mr Li was commenced on quetiapine at 25 mg. On review on
16 January 2020 Dr Kumagaya reported some stability in mood and noting the quetiapine 25mg was associated with oversedation the following day reduced the dosage to 12.5mg.On 27 April 2020 Mr Li reported a worsening of his depressive and anxious symptoms in the context of having run out of fluoxetine medication.
On 25 June 2020 Dr Kumagaya reported a mild improvement in Mr Li’s depressive and anxious symptoms. He had attempted a wean of his quetiapine medication but it had resulted in rebound insomnia.
On 27 July 2020 Dr Kumagaya reported Mr Li’s mood remained below baseline and was accompanied by decreased energy and decreased interest in activities although the symptoms were not as severe as prior to the commencement of the psychotropic regime.
On 27 August 2020 Dr Kumagaya reported ongoing depressive and anxious symptoms, a mood below baseline, decreased appetite, decreased energy, decreased interest in activities and sleep disturbance.
In a report dated 29 September 2020 Dr Kumagaya diagnosed a major depressive disorder with anxious distress. He again reported low mood, decreased interest and enjoyment in activities, insomnia, concentration difficulties and decreased energy levels. He reported a strained relationship with family and friends. He reported Mr Li presented as cooperative, although unengaging and withdrawn. He noted his tone assumed an exhausted quality and his thought content reflected enduring depressive and anxious cognitions as well as a preoccupation with the impact of his injuries on his quality of life. Despite an increase in dosage Mr Li was no longer finding promethazine effective for his sleep disturbance, reporting attenuation of his total sleep time to between 2 – 4 hours. Promethazine was ceased and quetiapine recommenced.
On 18 February 2021 Mr Li was reviewed by telehealth. On the nights Mr Li took quetiapine he slept between five to eight hours but if he did not take it he had total insomnia. Whilst he reported an improvement in his mental state since the previous review he reported the symptoms were otherwise unchanged.
On 31 March 2021 Mr Li reported an improvement in his depressive and anxious symptoms, particularly in the domain of sleep disturbance. He had experienced up to nine hours of sleep without the aid of quetiapine and had progressively reduced the use of that drug. Other than the usual symptoms Dr Kumagaya reported increased anxiety before sleep: “I can hear and feel my heart beating so loud…I’m anxious and worried”.
Medico-legal reports
Dr Rastogi, psychiatrist 23 April 2020
Dr Rastogi assessed the claimant at the request of his lawyers. He reported concentration problems and poor attention span, insomnia, occasional panic attacks, daytime tiredness and fluctuating motivation and anxiety about the future. Mr Li was seeing a psychologist fortnightly, he was also seeing Dr Kumagaya and was on Lovan and Quetiapine. Dr Rastogi diagnosed a generalised anxiety disorder with panic attacks with comorbid traumatic closed brain injury.
In respect of his employment capacity Dr Rastogi reported ongoing concentration difficulties and poor stress coping with an inability to multitask that would be a barrier to his vocational functioning.
Dr Rastogi, psychiatrist 29 July 2022
Dr Rastogi reviewed the claimant on 29 July 2022. He reported chronic insomnia and lack of motivation. He had poor emotional regulation, impaired concentration with a poor ability to focus and comprehend and finds he cannot process things or learn new information. He is mentally fatigued and tired most days. His mood is pervasively depressed with anhedonia, he feels hopeless and useless and is confronted with vocational uncertainty.
Dr Rastogi concluded the barriers to work include fatigue, tiredness, cognitive difficulties, and anxiety with irrational fears. He thought Mr Li was unlikely to work as a graphic designer in the foreseeable future but noted the work capacity assessment indicated the possibility of part time sedentary work in a less stressful environment.
Dr James Bodel, orthopaedic surgeon, 26 June 2020
Dr Bodel concluded Mr Li has suffered a closed head injury with lacerations over the left side of the eye, a large laceration on the right side of the scalp and grazes on the knuckles of both hands. He also reported a fracture of the clavicle of the right shoulder and a soft tissue whiplash injury to the neck.
Dr Bodel stated from an orthopaedic point of view, Mr Li should be able to return to graphic design work if he can avoid prolonged head down posture or strenuous and repetitive tasks with the arms.
Dr James Bodel, 20 May 2022
Dr Bodel reviewed the claimant on 20 May 2022. He reported Mr Li was continuing to complain of headache and dizziness, pain at the base of the neck and over the top of the right shoulder. He also noted pushing, pulling, lifting or overhead use of the right arm aggravated the pain and he had generalised weakness of grip strength in the right arm.
His opinion as to injury remained unchanged although he also diagnosed an associated rotator cuff pathology in the right shoulder.
Dr Bodel found the claimant’s prospects of returning to work very poor primarily because of the head injury and the psychological issues but noted he was also restricted because of his neck and right shoulder.
Dr Hyde-Page, orthopaedic surgeon, 24 July 2020
Dr Hyde-Page orthopaedic surgeon assessed the claimant at the request of the insurer. He reported the fractured right clavicle had united but Mr Li was;
“left with traumatic shoulder stiffness, muscular ligamentous or soft tissue injury to his cervical spine where he has ongoing mild stiffness, generalised weakness and decreased function of his right wrist and hand which has come on since the motor vehicle accident but the underlying cause is not apparent.”
Dr Hyde-Page stated in view of the poor result in his right shoulder Mr Li required further investigation and treatment. Dr Hyde-Page stated until he regains normal strength and function Mr Li could not return to work.
Dr Hyde-Page, 28 April 2022
Dr Hyde-Page reviewed the claimant on 21 April 2022. On examination he noted mild stiffness in the right shoulder, mild stiffness with movement in all directions on examination of the cervical spine and mild discomfort in the upper thoracic area.
Dr Hyde-Page concluded the mild stiffness and the feeling of heaviness in the right hand would not prevent Mr Li working full time as a graphic designer.
Dr George, psychiatrist ,18 August 2020
Dr George assessed the claimant for the insurer and diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood caused by the accident. He expressed the view the claimant had capacity, from a psychiatric viewpoint, for, at least, part time work.
Dr George, 17 June 2022
Dr George reviewed Mr Li on 6 June 2022. He reported the reason Mr Li had not returned to any form of work was that he suffered insomnia and that despite the insomnia he only took medication from time to time. He reported Mr Li read books, attended church including a fellowship and Bible study group, he had friends through the church, friends who were neighbours and did some exercise through walking most days. He showers in the evening, tries to keep his place tidy, does his own washing and goes to the local shops.
On examination Dr George reported Mr Li’s mood appeared somewhat tense and he did not display a great deal of emotional expression. Dr George stated he could not diagnose an ongoing psychiatric disorder. He stated there was no reason Mr Li could not return to work if he had a normal sleep pattern using medication. Dr George stated Mr Li could work on a part time basis at this stage and, more than likely, on a full time basis, if motivated.
Mr Peter Tingle, vocational assessor, 17 May 2021
Mr Tingle assessed the claimant as having a high risk of failed return to work and long term disability. Mr Tingle reported that the claimant's assessment results indicated a very high level of psychological distress which continued to affect his mood, energy levels and cognition leading to functional deficits in concentration, memory, decision making and problem solving ability. Mr Tingle reported that the claimant had a reduced ability to organise, plan, prioritise activities/tasks and effectively deal with conflict situations.
Mr Tingle reported that these deficits have significant consequences for the claimant's potential on the open labour market and concluded his ability to gain and sustain employment on the open labour market was poor.
Vocational Capacity Centre Report, 18 October 2022
Ms Farag, functional assessor reported based on Mr Li’s physical capacity he was capable of work that falls in the sedentary, semi-sedentary and light work categories including his pre-injury role as a graphic designer.
Ms Hartley, vocational assessor administered several tests and noted Mr Li was uncomfortable during the testing and showed below average comprehension in the general cognitive ability test material, preferring easier tasks and showing limited persistence with tasks. She also reported he scored in the extremely severe range for depression, anxiety and stress on the depression, anxiety and stress scale (DASS).
Ms Hartley suggested whilst Mr Li may continue to present with emotional distress he should be encouraged to return to work but noted he would require support and a graduated return to full time hours. She suggested the most suitable option would be a return to graphic design although stated he could also consider the roles of website administrator, graphic pre-press trades worker, website designer or ICT sales assistant.
Mr Peter Tingle, 6 December 2022
Mr Tingle reviewed the reports of the Vocational Capacity Centre, Dr George, Dr Hyde-Page and Dr Rastogi.
Mr Tingle noted the findings on the DASS administered by Mr Hartley and also noted
Ms Farag acknowledged Mr Li had some functional limitations in being unable to lift above shoulder height.Mr Tingle did not consider the occupations proposed by the Vocational Capacity Centre such as website administrator, graphic pre-press trades worker, website designer or ICT sales assistant were realistic where those roles all require good social and communication skills and high levels of concentration and functioning, areas in which Mr Li is impaired.
Mr Tingle considered Mr Li had little to no work capacity with the possibility of a return to part-time work as a graphic designer subject to completing a multi-disciplinary pain management program, continuing psychological support, referral to a rehabilitation provider, medical monitoring and an understanding employer who is prepared to make necessary adjustments.
Medical Assessments
Certificate of Medical Assessor Ian Cameron, 26 December 2020
Medical Assessor Cameron assessed the claimant on 22 December 2020. He found the claimant had sustained a soft tissue injury to the head which had resolved. He found the claimant had sustained a soft tissue injury to the cervical spine resulting in a 0% whole person impairment (WPI) and a right shoulder injury, namely a fracture of the clavicle and soft tissue injury resulting in a 5% WPI.
Medical Assessor Cameron found there was no evidence of a significant injury to the head or brain noting there was no abnormality on the Glasgow Coma Score, no abnormality on brain imaging or any other medically verified abnormality.
Certificate of Medical Assessor Robertson, 12 February 2021
Medical Assessor Robertson assessed the claimant on 8 February 2021. He diagnosed a chronic major depressive disorder with anxious distress and assessed a WPI of 15%.
In assessing permanent impairment Medical Assessor Robertson reported:
“Self-care and personal hygiene
He frequently skips showers until ‘he feels filthy’ or ‘his hair is matted’. This is usually twice per week. His diet is poor either comprising ‘instant noodles ’or ‘take away food’, already prepared food. Mr Li’s mother would frequently visit in Australia prior to restrictions arising from COVID and would oversee his consumption of a balanced diet, Mr Li has gained around 5 kg.
Social and recreational activities
Mr Li reports that he regularly attends religious services using video conferencing software but often ‘turned off the video’ and did not readily participate. Mr Li believes that he would maintain a degree of socialisation with his fellow worshippers if not for the effects of COVID although his social repertoire had clearly diminished.
Travel
Mr Li experienced some anxiety leaving his house and crossing roads and would only (move) around in familiar areas, refusing to travel to unfamiliar areas due to the effects of his phobic anxiety.
Social functioning
Mr Li reported that he had frequent arguments with his parents and at the time of the assessment was no longer speaking. Mr Li reported that his disputes with his family of origin were often over trivial matters and he describes himself as being stuck in a ‘cold war’. Mr Li has been able to maintain some friendships although the artifice of the COVID period had demonstrated that this had not been an issue that he had pushed.
Concentration, persistence and pace
Mr Li describes impaired concentration and short term memory including forgetfulness, a tendency to misplace belongings, inability to read a book beyond five or ten minutes and then having to constantly reread material, forgetting details of conversations and appointments.
Adaption
Mr Li reports that the main barriers to employment were anxiety about negative feedback from clients and concerns about him doing ‘a poor job’. Mr Li reported that he suffers panic attacks when responding to texts or emailing and often will take days to respond to any sort of correspondence. Mr Li indicated that he was productive about one to two hours per day around the house which was usually comprised of sporadic or intermittent activity. Over time Mr Li is considering a redeployment to a different less demanding role on a reduced hours basis. Mr Li believes once the economic slowdown of COVID continues that he will be able to habituate to part-time employment long term.”
THE INJURY SUSTAINED BY THE CLAIMANT
I find the claimant sustained a closed head injury demonstrated by the laceration to the scalp, a fracture of the right clavicle resulting in ongoing right shoulder pain and stiffness, a soft tissue injury to the cervical spine and abrasions to the right hand, wrist and elbow.
I am satisfied the claimant continues to experience pain and discomfort in the right shoulder and to a lesser extent to the cervical spine. I accept the pain experienced by the claimant to the neck and right shoulder is aggravated by pushing, pulling, lifting or overhead use of the right arm. I also accept the claimant’s right arm becomes painful if he uses a mouse for too long. Whilst I note this is not in accord with the more recent opinion of Dr Hyde-Page it is significant that when he first saw the claimant in 2020 he recommended he undergo further investigation and treatment of the right shoulder including attending exercise physiology. That did not occur but may be necessary to assist the claimant to regain normal function of this right arm.
More significant has been the psychological injury. I find the claimant has developed a chronic major depressive disorder with anxious distress in accordance with the opinion of Medical Assessor Robertson, Dr Kumagaya and Dr Rastogi. I do not accept the opinion of Dr George that the claimant no longer has an ongoing psychiatric disorder.
The opinion of Dr George that the claimant is no longer disabled by his psychological illness is not borne out by the evidence. Mr Li agreed he attended church but only once a week on the Sabbath. The fellowship referred to by Dr George was part of that church attendance and his participation in the Bible Study group is online and the other participants, whilst known to him, are not friends. He attends the local shops once a week, he walks two days a week and he undertook the coding programme for about one hour a week. Mr Li leads a restricted and diminished life and whilst he has improved his sleep he continues to lack motivation and energy, his concentration and focus is impaired, and he continues to feel mentally fatigued and tired most days. The testing undertaken by Ms Hartley demonstrated Mr Li had little persistence for tasks and he scored in the extremely severe range for depression, anxiety and stress, consistent with the opinion of Mr Tingle.
Medical Assessor Robertson recorded that Mr Li was productive about one to two hours per day around the house and based on the claimant’s evidence at the assessment conference that remains the case. I agree with Dr Rastogi that Mr Li is unlikely to return to his pre-injury employment as a graphic designer in the foreseeable future.
THE ASSESSMENT OF DAMAGES
Non-economic loss
Section 1.4 of the MAI Act defines non-economic loss as including pain and suffering, loss of amenity of life, loss of expectation of life and disfigurement.
The current maximum payable for non-economic loss is $605,000.
The claimant submits an appropriate allowance for non-economic loss is $425,000 whilst the insurer submits, I should allow $150,000.
I am satisfied that Mr Li’s psychological disorder is disabling, it affects his mood, his energy levels and cognition leading to functional deficits in concentration, memory, decision making and problem solving ability. I accept the opinion of Dr Rastogi that Mr Li remains pervasively depressed with anhedonia, he feels hopeless and useless and is confronted by vocational uncertainty. Mr Li no longer drives, he has experienced estrangement from his parents and lives an isolated diminished life. In addition, the ongoing pain and discomfort experienced by Mr Li in the right shoulder and the cervical spine is aggravated by the use of his right arm.
Noting Mr Li is now 34 years of age with a life expectancy of 49 years with limited expectation of improvement, other the amelioration of symptoms depending on the success of psychological treatment I consider an appropriate assessment of damages for non-economic loss to be the sum of $400,000.
Past economic loss
Past economic loss has been agreed in the sum of $160,695.96.
The Fox v Wood component has been agreed in the sum of $12,504.
Future economic loss
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances.
The accident has clearly caused a change in the claimant’s most likely future circumstances. I am satisfied had the accident not occurred Mr Li would have continued to work as a self-employed graphic designer.
The claimant asserts he remains totally unfit for return to employment and relies upon the report of Kain Elsmore, forensic accountant of Vincents dated 31 August 2021.
Mr Elsmore provided the following table showing Mr Li’s earnings from his work as a graphic designer during the pre-accident period:
On the basis the claimant has no residual incapacity for work Mr Elsmore calculated future economic loss on the basis he would have continued to work as a self-employed graphic designer with a notional retirement at age 67 years.
Mr Elsmore reported the current earnings of employed graphic designers ranges from $43,000 to $133,000 gross per year and the earnings of self-employed graphic designers ranges from $92,000 to $146,000 gross per year. He also noted that prior to the accident Mr Li’s actual earnings fell within the lowest turnover categories.
Mr Elsmore calculated that Mr Li would have derived notional earnings ultimately progressing to:
Scenario 1 - $65,000 per year before tax, and
Scenario 2 - $90,000 per year before tax.
He noted that the ultimate amount adopted in scenario 1 is broadly consistent with Mr Li’s actual net profit during the year ended 20 June 2017 and the ultimate amount adopted in scenario 2 is broadly consistent with the earnings of self-employed graphic designers in the lowest turnover category as of 2021.
Mr Elsmore calculated on scenario 1 with no residual earning capacity the claimant’s current weekly net loss would be $998.72 per week and as of 1 July 2024 it would be $1,008.30 per week. He calculated on scenario 2 with no residual earning capacity the claimant’s current weekly net loss would be $1,249.20 per week and as of 1 July 2024 it would be $1,339.49 per week.
The insurer relies upon the opinion of Dr George that the claimant does not have an ongoing psychiatric diagnosis and could work on a part time and, more than likely, a full time basis if motivated. The insurer also notes that Dr Hyde-Page concluded that the claimant was no longer physically incapacitated for work as a graphic designer.
The insurer refers to the various roles suggested by Dr Farag and Ms Hartley as suitable for the claimant and notes that the average net weekly earnings for those roles is $1,168.98 per week, which surpasses the pre-accident earnings of the claimant. On this basis the insurer submits no award should be made for future economic loss.
I have already stated I do not accept the opinion of Dr George. Whilst I find Mr Li remains unfit for any work I also note Dr Rastogi considered the possibility of future part time sedentary work whilst Medical Assessor Robertson reported Mr Li is considering a redeployment to a different less demanding role on a reduced hours basis. Whilst it is difficult to be confident about the claimant’s ability to return to work it is equally difficulty to write him off as unemployable at the age of 34. However, where it is now nearly four years since the accident with little improvement in the claimant’s functioning I am of the view the claimant’s future capacity for work is for no more than 15 hours per week, or three hours a day, five days a week.
Having regard to the entirety of the evidence including the wish of Mr Li to return to work subject to allowances being made for his limitations I propose to assess damages for future wage loss based on total incapacity for work for the next five years and thereafter on the basis Mr Li will be able to return to work for no more than 15 hours per week.
I propose to calculate damages for the next five years based on an average of the claimant’s earnings in the three years pre-accident of $850 net per week. I calculate $850 x 231.5 (multiplier for 5 years on the 5% tables) less 15% for the vicissitudes of life in the sum of $167,258.75.
Thereafter, having regard to the scenarios posed by Mr Elsmore I consider it appropriate to calculate future wage loss by reference to the claimant’s likely earnings as a graphic designer of $1,200 net per week on the basis his earnings for two out of the three years preceding the accident were less than the average proposed by Mr Elsmore but keeping in mind the probability that his earnings would increase over time as his business developed.
On the basis Mr Li is fit to return to work 15 hours per week I calculate his loss of wages for 25 hours per week at $750 net per week. I calculate $750 x 796.6 (multiplier for 28 years on the 5% tables) x 0.784 (multiplier for 5 years on the 5% deferred tables) less 15% for the vicissitudes of life in the sum of $398,140.68.
I assess damages for future wage loss in the sum of $565,399.43.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the findings set out above:
Non-economic loss $400,000.00
Past Loss of earnings $160,695.96
Fox v Wood $12,504.00
Future loss of earnings $565,399.43
Sub-total $1,138,599.39
Reduction for contributory negligence $170,789.91
TOTAL DAMAGES ASSESSED $967,809.48
The claimant’s economic losses are to be reduced by and the insurer is to have credit for statutory payments pursuant to s 3.40 of the MAI Act.
COSTS AND DISBURSEMENTS
I refer to the claimant’s schedule of costs and disbursements.
I note the claimant withdraws the claim for costs under stages 1 and 2.
Disbursements were otherwise agreed. I have allowed an additional four hours for the assessment conference and I note the relevant rate is $338 per hour.
Accordingly, I assess the claimant’s costs and disbursements in accordance with the attached Damages and costs calculator.
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