Mabbott v AAI Limited t/as GIO
[2024] NSWPIC 581
•18 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mabbott v AAI Limited t/as GIO [2024] NSWPIC 581 |
| CLAIMANT: | Zac Mabbott |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 18 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages; liability not in issue; not entitled to damages for non-economic loss; claimant 19 years old at the time he was injured as a pedestrian in motor accident on 3 November 2020; the insured driver allegedly attempted to run him over and claimant jumped out of the way of vehicle and in doing so his right hand and wrist hit windshield and mirror; injuries to a number of body parts alleged, and accepted by medical assessor; however, found that no body part injured other than right wrist; evidence does not establish issue of causation to any other body part; apprentice painter at time of accident; after some rehabilitation efforts the claimant found alternative employment as a traffic controller; alleged psychological issues exacerbated by traffic control work; now has own lawn mowing business; Held – reasonable on the evidence to have left his employment; damages for past and future economic loss assessed at $192,752.82 plus costs. |
| DETERMINATIONS MADE: | FINAL CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. The amount of damages for the claim is $192,752.82 2. The insurer to pay the claimant’s legal costs in accordance with the Motor Accident Injuries Regulation 2017. |
FINAL STATEMENT OF REASONS
INTRODUCTION
Mr Zac Mabbott (the claimant) makes a claim for damages for injuries suffered as a result of a motor accident occurring on 3 November 2020.
The claimant was a pedestrian crossing a road in New South Wales when it is alleged that the driver of a vehicle attempted to run him over. The claimant jumped out of the way of the vehicle and when doing so his right hand and wrist hit the windshield and side mirror of the vehicle.
A claim for statutory benefits and a claim for damages was lodged with AAI Limited t/as GIO (the insurer) who are the compulsory third party insurer of the relevant vehicle.
Liability was accepted for both the claim for statutory benefits and the claim for damages. The issue for determination in these proceedings is the amount of damages the claimant is entitled to under the Motor Accident Injuries Act 2017 (MAI Act).
I have held two preliminary conferences with the parties. On 4 July 2024, I set the matter for an assessment conference to occur on 6 September 2024. It was requested that the conference proceed via audiovisual link.
The assessment conference proceeded as scheduled at 10.00am on 6 September 2024 and concluded at approximately 12.30pm.
It was noted at the outset of the conference that the claimant’s representatives had failed to include a signed statement from the claimant in their bundle of documents, in accordance with the directions issued on 4 July 2024.
In a rather sensible approach, the insurer indicated that it did not object to the matter proceeding, on the proviso that the insurer may need to further time and/or evidence in the event that any oral evidence took the insurer by surprise.
In the interests of the matter being resolved in a timely manner I agreed with the matter proceeding in the absence of a signed statement by the claimant.[1]
[1] See r34(5) of the Personal Injury Commission Rules 2021.
DOCUMENTATION CONSIDERED
In accordance with directions, the parties each lodged a bundle of all documents that they wished to rely upon. I have carefully considered the material provided by the parties.
SUMMARY OF EVIDENCE
Background
The claimant is a 23 year old male (aged 19 at the time of the accident) who resides in the Northern Rivers region of New South Wales. At the time of the accident he was employed as an apprentice painter.
The claimant did not return to the workforce after the motor accident until December 2022. At that time, with the assistance of a rehabilitation provider engaged by the insurer, the claimant was able to secure work as a traffic controller for Traffic Control Service.
The claimant stopped working as a traffic controller in February 2024. The claimant alleges that he stopped the work due to the injuries sustained as a result of the accident.
He has since commenced his own business mowing lawns.
The claimant has had a somewhat difficult upbringing with notes of family conflict, being the victim of school bullying, and some alcohol and cannabis use in his early youth. The claimant, however, appears to have left these issues behind him by and large. The claimant lives with his partner and their two young children.
The claimant should be commended for persevering through various difficulties, including those attributable to the subject accident.
Injuries alleged
The written submissions relied upon by the claimant list the following alleged injuries:
(a) injury to head – soft tissue damage;
(b) injury to cervical spine – musculoligamentous and whiplash associated disorder type injury;
(c) injury to lumbar spine – contusion injury;
(d) injury to right shoulder – rotator cuff injury;
(e) injury to left wrist – soft tissue damage;
(f) injury to right wrist – soft tissue contusion, ligament injury, laceration, scarring, glass in wrist and complex regional pain syndrome;
(g) injury to right hand – soft tissue contusion, and
(h) psychological sequelae.
Numerous resultant disabilities are listed that including chronic pain and difficulties with various tasks including sitting, standing and walking together with lifting. It is also alleged the claimant suffers from low moods and hypervigilance when in a vehicle or near traffic.
The Application for Personal Injury Benefits dated 19 November 2020 includes the claimant description of his injury as being to the right wrist.
Medical evidence
The NSW Ambulance report documents the claimant having been struck by a vehicle with the right wrist being hit by the mirror. He denied other injuries. A haematoma and small superficial laceration were noted to the inside of the right wrist. The wound was irrigated and dressed with a moist dressing. A Glasgow Coma Score of 15 was noted.
A general practitioner (GP) clinical file is provided of Ochre Medical Centre in Ballina. This file documents the claimant having been diagnosed with autistic spectrum disorder in 2010 and a pervasive developmental disorder.
A whole body scan report of 12 June 2020 which concludes there is no evidence of abnormality.
An MRI of the right wrist/hand of 5 January 2021 is reported to have found no features of bone bruising or fracture and no soft tissue injury. A large, non-acute, multilobulated intraosseous cyst was noted. Similar findings are noted on an X-ray of the right wrist report dated 22 September 2022.
A report of Dr Lennon, paediatrician, dated 29 July 2010 includes a note of the claimant having high functioning autism, with good language function but “very poor comparative understanding of the meaning of language.”
Included in the file is a questionnaire filed out by the claimant on 1 June 2020. It documents the claimant suffering pain in the lower back and right flank area.
A report of psychiatrist, Dr Duke, dated 7 January 2021 is included in the file addressed to GP, Dr Smith of Grant Street Clinic in Ballina.
The report gives a history of the accident. It explains that the driver of the insured vehicle was known to the claimant and that the person wanted to hurt the claimant, but he did not understand why.
It is noted the claimant had been an apprentice painter for two years and that he was hoping to set up his own business in the future. The prior diagnosis of autism and development disorder was noted, however, Dr Duke considered the presentation fits better with Attention Deficit Disorder (ADHD) and anxiety.
A history of high school bullying is noted. The claimant left school at around the age of 15 and spent some time in less desirable pursuits before beginning work painting. He was noted to have been arrested once after an argument with his mother which resulted in an AVO and he went to live with his father.
Dr Duke noted the claimant to be well physically but the claimant reported a heart murmur and lower back pain.
The claimant was noted to sleep poorly since the accident and feels anxious all the time, worse in crowded places. It was noted that his thoughts focus on fearing being assaulted or run over again, and worry about achieving his goal of running his own business.
Dr Duke concluded that the claimant presented with an adjustment disorder with features of anxiety, impaired sleep and agoraphobia.
Dr Duke recommended the claimant go out with friends and family to limit avoidance and deteriorating self confidence. He praised the claimant in not falling back to the use of illicit substances. It was recommended that he speak with his employers about returning to work at a different location.
In a further report dated 25 January 2022 it was noted the claimant was sleeping poorly and undergoing exposure therapy with a psychologist, Gemma Moses. Cars were noted to be a trigger and his thoughts focus on fearing being assaulted or run over again. The diagnosis was updated to one of generalised anxiety disorder with impaired sleep and agoraphobia precipitated by the motor accident.
By 14 April 2022, Dr Duke noted that the claimant was less triggered by cars. Problems with anger are described with him raising his voice to his partner.
It appears the claimant stopped attending upon Dr Duke and a letter of 29 June 2023 explains that the claimant had not responded to attempts to contact him from the doctor’s office.
A certificate of fitness dated 17 February 20201 included a diagnosis of soft tissue injury to the right wrist with a question of whether carpal tunnel syndrome was present.
The claimant was referred to orthopaedic surgeon, Dr Kinny, who reported to the claimant’s GP on 22 February 2021. He noted that the claimant attended the Lismore Base Hospital after the accident and was placed in a plaster slab for two weeks, however, follow up radiology found no evidence of any fracture or ligamentous injury. The cyst found on MRI is noted to be benign and long standing.
Dr Kinny notes the claimant complained of continued pain affecting the volar aspect of the right wrist, with examination demonstrating weakness and some visible muscle wasting. Weakness and discomfort was noted with the grip of the right compared to left and a reduction of movement.
It was concluded by Dr Kinny that the claimant suffered a post-traumatic carpal tunnel syndrome on the right due to the direct blow to the median nerve. A nerve conduction study was recommended.
A report from hand physiotherapist, Jodie Robertson dated 10 September 2021 documents the claimant having received fortnightly sessions which included a graded activity program to increase strength in the wrist. The claimant reported that he wished to return to his apprenticeship with a different employer.
A report of sport and exercise physician, Dr Wood dated 29 October 2022 includes the opinion that the claimant has some features consistent with complex regional pain syndrome. The doctor discussed persisting pain and maladaptive neurobiological pain response with the claimant. It was noted that the claimant going back to work has been very beneficial to him to provide structure and direction. It was stated that the claimant should see improvement in the coming months.
The file of Grant Street Clinic includes evidence of the claimant suffering right knee pain in 2018 when he was aged 16. Back pain was also noted in 2018 with an X-ray of the left hip and lumbosacral spine reported as normal. The back pain is noted to have persisted at least until June 2020.
A consultation note with GP, Dr Ivits on 18 December 2020 includes a history of the motor accident. It was noted that there was no head strike. The right wrist was examined, and no obvious deformity was found however tenderness was noted.
A discharge referral of Ballina Hospital notes the claimant attending as a 14 year old on
12 February 2016 due to behavioural disturbance.
The claimant has recently been referred to a plastic reconstruction surgeon as a result of a foreign body being identified in an ultrasound of the right wrist (28 March 2024). The body is noted as being 1.5mm located 1.1mm from the skin surface on the radial aspect and 1.3mm on the ulnar aspect. A small haematoma with hyperaemia surrounds the lesion. The referral notes chronic pain in the wrist since the accident and the claimant noting pain when weeding and went to the emergency department as a result.
Medico-legal evidence
The claimant relies on a report of Dr Bodel, orthopaedic surgeon dated 30 June 2022 and the insurer relies on a report of Dr Smith, orthopaedic surgeon, dated 13 February 2023.
Dr Smith reports that the claimant complains of ongoing symptoms that are suggestive to CRPS, but none apparent on examination. Dr Bodel states: “he is embellishing his condition and manufacturing physical signs. There is no organic reason for the weakness he exhibits in the right upper limb. There is work hypertrophy in the right upper limb in excess of the left upper limb, which is inconsistent.”
Dr Smith concludes that there is no objective evidence of any condition being present as a result of the accident.
Dr Bodel examined the claimant via telehealth. Some restriction of neck flexion, extension and rotation was noted in all directions by telehealth. Dr Bodel states that on review of the radiological reports, the X-rays show a possibility of scapholunate ligament injury.
He found a soft tissue contusion in the region of the right wrist, rotator cuff injury to the right shoulder, and whiplash type disorder injury to the cervical spine and a contusion to the lower back.
Dr Bodel opines that the claimant is likely to remain fit for work on the open labour market but may find it difficult to compete in all aspects of that work.
Medical assessments of the Personal Injury Commission
Medical Assessor Robert Kuru issued a medical certificate dated 16 February 2024 certifying the claimant as suffering a 6% whole person impairment, which is not greater than 10%.
The Medical Assessor took a history of the claimant suffering right wrist pain with intermittent feeling so cold and colour changes. Stiffness in the right shoulder and difficulty doing sustained overhead work is noted. In respect of the lumbar spine the claimant noted global pain across his back, with him occasionally taking Nurofen. Right sided neck pain is noted without radiation to the limbs.
Medical Assessor Kuru lists diagnoses as:
(a) non-specific neck pain;
(b) non-specific back pain;
(c) impingement right shoulder, and
(d) soft tissue injury right wrist.
In terms of causation, Medical Assessor Kuru states that from the history of the claimant the injuries are attributable to the accident, although it is noted that the claimant presented to his GP with back pain in June 2020.
A 4% whole person impairment at the right shoulder is assessed and a 2% of the right wrist.
Medical Assessor Wayne Mason in a certificate dated 24 April 2024 certifies a 4% whole person impairment owing to a diagnosis of post-traumatic stress disorder.
The claimant was noted to have stopped all psychiatric medication, such as antidepressants due to side effects.
The claimant gave a history of his wrist continuing to bother him due to recurrent flare ups and pain. He was said to manage his lawnmowing business by using a ride on mower and a strap when using an edger so that he can operate it with one hand.
In terms of psychological symptoms, the claimant reported extreme difficulty with sleep due to pain and flashbacks. Nightmares are noted with tossing and turning.
The claimant described a fear that he would be run down again. The claimant found psychological treatment helpful but stopped going in 2022 due to financial constraints and did not want to go through the process of having the insurer approve the sessions.
Sleep is reported as improved, albeit disturbed.
Medical Assessor Mason states that the claimant’s initial symptoms are consistent with post-traumatic stress disorder and a comorbid depressive disorder following the accident, with the conditions largely resolved although with some post-traumatic stress disorder symptoms continuing.
The claimant has been able to resume a little bit of fishing but less so than before the accident due to pain.
When assessing whole person impairment, Medical Assessor Mason states the following in terms of adaptation:
“Mr Mabbott had been working for 2 years in traffic control on a casual part-time basis. He said he was largely getting full-time hours towards the end. However he was not offered work after Christmas 2023 break so he decided to commence a lawnmowing business which is still picking up. He helps out around the home. None of these difficulties are due to his psychological condition. He is unimpaired.”
Utilising the Psychiatric Impairment Rating Scale (PIRS), Medical Assessor Mason assesses a 1% whole person impairment, however, adds 3% treatment effect allowance due to: “treatment has been largely effective. It has resulted in virtual elimination of his psychiatric condition.”
Rehabilitation reports
The insurer enlisted the services of IPAR Rehabilitation Pty Ltd in providing rehabilitation assistance to the claimant.
An initial needs assessment dated 17 February 2022 records the claimant reporting ongoing symptoms in his right wrist with numbness through tot hr right thumb index and middle finger and pain.
The claimant advised that he was one year into his apprenticeship at the time of the accident with two to three years remaining. His employer was not able to provide suitable duties and he therefore became job detached. The claimant reported that he was motivated to return to work, however, felt that his psychological symptoms were a barrier.
Ongoing rehabilitation activity is noted in a series of reports, with a report that the claimant commenced employment in traffic control on 8 July 2022. As at 17 August 2022, the claimant is noted to have been working 35 hours per week with a 50 hour a week capacity. At a medical case conference on 15 August 2022 the claimant is said to have self-reported full use of his hand with no pain during or after work hours. His GP, Dr Smith, approved pre-injury duties. The claimant reported that his depressive symptoms were reduced compared to the prior year and the medication prescribed by Dr Duke was effective.
ORAL EVIDENCE
As noted above, I do not have before me a written statement of the claimant. His oral evidence was given, by and large in a straightforward manner. I observed a tendency to answer questions on occasion in a less straightforward manner with an apparent attempt to benefit his case. However, I did not consider there to be any material issues of credit.
The claimant was clearly aggravated by the claims process, however, was not aggressive when giving his answers. I accept that the claimant has ongoing difficulties due to the accident. The extent of those difficulties is discussed further below.
The claimant described the physical side of his traffic control work as “easy” due to limited lifting. He noted that towards the end he was mainly driving trucks and performing more supervisory duties. He described the mental side of things as very draining, and found himself to be depressed at the end of the day. He described a lot of stress having to be around cars because of the history of the motor accident. He described flashbacks and having to be on his toes all day. He found himself depressed and short tempered when arriving at home.
He described reasons for leaving the traffic control work due to a few issues with his bosses and the mental stressors of being around cars.
The claimant stated that he was currently doing mowing and whipper snipper work in his own business, at a rate of around three jobs a day. They take around 30 – 40 minutes each and he noted there was potential for the work to pick up over the summer months. The claimant described the work as pretty straightforward and that he felt safe as he was not around cars. The physical side of things were manageable with no heavy lifting.
The claimant was questioned by Mr Jones, counsel for the insurer, regarding the lack of contemporaneous notes relating to neck pain. The claimant replied that he did have neck pain and pain throughout his whole body and he thought he was still waiting on test results from his doctors.
It was put to the claimant that the hospital did not record any complaints to the neck, back or shoulders and the claimant responded that he definitely had pain in those areas.
The claimant was taken to a GP note (p 238 of the claimant’s bundle) that noted an earlier motor vehicle accident when a car hit a tree and there were resultant complaints of back pain. The claimant did not seem to remember earlier instances of back pain.
Despite several notes of back pain in the clinical files, the claimant stated that from the best he could recall he did not have back pain prior to the accident other than some issues in the morning that went away.
The claimant gave evidence of having an issue with his boss at the painting business regarding his payslips showing superannuation payments, however they were not deposited into his account. The claimant was questioned about indication in the material that the claimant had further issues with his boss and it was put to him that is why he did not return to the workplace.
The claimant stated that he enjoyed his work in traffic control with the exception of being around cars. He described the situation of being around cars and being on edge as very depressing. There were some issues regarding his bosses wanting him to change around his child’s childcare arrangements to accommodate work shifts. The claimant explained that his partner does not have a licence and he was required to do pick ups and drop offs.
It was put to the claimant that he wanted to start his own business and that is why he left the traffic control work. The claimant stated this was not the case and that he was always going to leave and wanted to numerous times but had various financial commitments, mainly centred on family obligations. He described being depressed at the end of the day and having no mental energy and he put that down to being on the road with passing cars, and many people not paying proper attention when driving.
In respect of the start of his business in lawnmowing, the claimant gave evidence that he saw a post of someone wanting their lawn mowed. He did the job cheaply using their mower and that stage he was just “helping out”. The claimant has since commenced his business “Zac’s Precision Lawn Care”. He described the business as fairly new and has been slow when starting up and he is taking some more enquiries and hopes that business will pick up during the warmer months. He described the business as self-sufficient in that it pays for the fuel and his rent. I asked him how much his rent is, and he stated it was $300 per week living in a house of a friend. His fuel was noted to be around $80 to $90 per week.
It was put to the claimant that he was earning more in traffic control than he was as a painter and that he could go back to traffic control at any time. The claimant was adamant that he could not due to the mental issues surrounding being around cars all day. It was put to him that if he was experiencing difficulties he would have sought psychological treatment, and it was noted that Dr Duke was unable to contact him. The claimant noted that he had changed his number. He conceded that he knew they were trying to contact him but he was reluctant to attend upon Dr Duke as he wanted to prescribe various pills and he did not want to deal with the side effects.
FINDINGS ON INJURY
The claimant alleges injuries to a number of body parts as a result of the accident. However, having considered the totality of the evidence I do not accept that on the balance of probabilities, the claimant suffered injuries to any body part other than the right wrist.
Whilst Assessor Kuru accepted the claimant suffered soft tissue injuries to other areas other than the right wrist, there is an absence of reasoning set out to support such conclusion. This is also the case in respect of the opinion of Dr Bodel.
The contemporaneous evidence makes no mention of any body part other than the right wrist. There are no referrals for radiology or specialist in respect of any injury other than the right wrist. Furthermore, the treating physiotherapist only seems to have treated a right wrist injury.
Whilst Dr Smith suggests that the claimant suffers no ongoing injury, including the right wrist, on the basis of the treating evidence of Dr Kinny and the physiotherapist I am satisfied that on the balance of probabilities the claimant continues to be troubled by right wrist symptoms. It is not abundantly clear the extent of those issues, with some suggestion of carpal tunnel syndrome and complex regional pain syndrome.
I accept the claimant’s evidence that he has ongoing symptoms and that whilst he manages with most activities of daily living and work duties, there is a need to modify those duties at times, with the occasional flare up of symptoms.
DAMAGES
Non-economic loss
The claimant is not entitled to damages for non-economic loss noting the medical assessment certificates certifying assessments of whole person impairment that do not exceed 10%.
Economic loss
The claimant’s submissions note that at the time of the accident, the claimant was employed as an apprentice painter earning approximately $500 per week. He was unable to return to that role and was off work until December 2022.
It is submitted that the claimant currently earns around $350 net per week.
A claim for past economic loss is therefore advanced as follows:
(a) $500 net per week x 109 weeks (3 November 2020 to 5 December 2022) = $54,500;
(b) $500 net per week x 2 weeks (1 February 2024 to 14 February 2024) = $1,000, and
(c) $150 net per week x 29 weeks (14 February 2024 to 6 September 2024) = $4,350.
This total $59,850 plus an amount of $6,583 for superannuation (11%).
Curiously, I note that the claim does not seem to account for the claimant’s wages increasing as he progressed through and completed an apprenticeship.
The insurer, in their submissions has sensibly made allowance for the claimant progressing though the apprenticeship. The insurer notes earnings at the time of the accident of $464.60 net per week, with the claimant set to earn in $535.20 net per week shortly after the accident and $643.00 net from 8 November 2021 (3rd year apprentice).
The insurer notes that after the accident the claimant was certified as unfit until
15 March 2022, after which time he was gradually certified as fit for pre-injury duties.
The insurer refers to an email from the claimant’s traffic control employer who noted in response to various questions that the claimant’s employment would be very secure and that there were no issues at all with the claimant’s work performance.
The insurer notes that the taxation material documents the fact that once the claimant returned to employment his earnings were more than what he could have expected to earn in his pre-injury employment.
The insurer therefore calculates past economic loss on the following basis:
Date
Capacity
Loss
3.11.20 – 15.3.22
No capacity
3.11.20 – 3.11.21; $535.20 x 52 wks = $27,830
4.11.21 – 15.3.22; $643 x 19 wks = $12,217
15.3.22 – 15.4.22
4 hrs, 3 days/wk
Loss of 28 hrs p/wk: $16.10 x 28 hrs x 4wks = $1,803.20
15.4.22 – 15.5.22
4 hrs, 4 days/wk
Loss of 24hrs p/wk; $16.10 x 24 hrs x 4wks = $1,545.60
15.5.22 – 15.6.22
6 hrs, 4 days/wk
Loss of 10hrs p/wk; $16.10 x 10hrs x 4 wks = $644.00
14.6.22 – 15.8.22
8 hrs, 5 days/wk
No loss – fit for pre-injury duties
I note that the above table includes an error in its calculations. In this regard, 4.11.21 – 15.3.22 is in fact just over 13 weeks and is not 19 weeks as set out above.
The insurer therefore allows an amount of $44,039.80 plus an amount of $4,844.38 for lost superannuation at 11%.
The evidence demonstrates the claimant commenced work in traffic control on 8 July 2022.[2]
[2] employer’s response to insurer questions dated 29 September 2023.
Whilst the insurer makes a case that the claimant’s past economic loss amount should be reduced in accordance with his certificates of fitness, I do not agree that this an appropriate way to calculate economic loss.
Despite the fact that there appears to be some unrelated tensions with his pre-injury employer,[3] I accept that the claimant’s most likely circumstances were but for the accident, that he would have completed his apprenticeship and eventually commenced his own painting business.
[3] Insurer’s bundle R5 and R14.
I further accept that due to the accident the claimant was not able to return to his employment.
Whilst he may have been fit for some employment, given his long period out of the work force and his ongoing difficulties I accept that he would have experienced difficulties obtaining employment and did in fact need the services of a rehabilitation provider. Of course, this did in fact occur. I find therefore, that the time off work prior to commencing with traffic control, and resultant economic loss, is related to the injuries sustained as a result of the motor accident.
I therefore calculate past economic loss as follows:
(a) 3.11.20 – 3.11.21 x $535.20 (2nd year apprentice) x 52 weeks = $27,830, and
(b) 4.11.21 – 7.7.22 (commencement at traffic control) x $643 (3rd apprentice), say, 24 weeks = $15,432.
This totals an amount of $43,262.
However, it is noted that the claimant is currently earning significantly less at present time than he was earning in traffic control.
It is difficult to ascertain but there appears to be a number of reasons why the claimant left the traffic control employment. Whilst no doctor has been asked directly to provide an opinion as to whether the claimant has an incapacity for such work owing to an apparent fear of cars, there is documented complaints of this fear in the material as set out in the reports of Dr Duke, treating psychiatrist.
Whilst I consider it would have been in the claimant’s best interests to continue his treatment with Dr Duke, his comments that he has a reluctance to approach the doctor given the propensity to prescribe medication that come with adverse side effects, is not entirely without reasonable merit.
On the evidence I find that the claimant’s fear of being around cars that emanates from the motor accident, materially contributed to the claimant leaving the employment with traffic control. I also accept his evidence that he felt mental fatigue from the situation of being on edge on the road and going home depressed and in a bad mood. I therefore consider it reasonable that he left that employment in the circumstances.
Without any objective evidence of his current earnings it is not possible to provide a precise figure of economic loss since leaving employment. Therefore, I allow a small buffer in the amount of $20,000 in addition to the above amounts.
Therefore, I assess an amount of $63,262 for past economic loss in addition to amount of $6,958.82 for lost superannuation.
In terms of future economic loss the claimant advances a case that but for the accident he would have continued his career as a painter. It is asserted that the average salary of an experienced painter in Australia is over $95,000 gross per year. I note, however, that no evidence is provided that substantiates this figure.
On the basis of that figure a claim is made in the amount of $1,400 net per week until retirement age (44 years) multiplier of 944.5 coming to a total of $1,123,955 plus 12% superannuation.
I note that no allowance is made for a residual earning capacity, including the $350.00 net per week that the claimant says that he is currently earning.
The insurer asserts that the claimant did not return to his work as a painter owing to difficulties with his employer. It is also asserted that the claimant left the traffic control work for non accident-related reasons. I, however, have made contrary findings as set out above.
The insurer refers to the claimant having been identified by their vocational assessors as being suitable for positions such as a park ranger and as an earth moving plant operator. From my understanding obtaining work as a park ranger presents with much difficulty and little availability. I do not find that this is a viable alternative employment option. In the circumstances, it is likely that the claimant may well have the capacity to pursue work as a plant operator. However, it is also reasonable for him to pursue work in his own lawn mowing business.
On the evidence I do accept that the claimant has some disadvantage on the open labour market owing to his ongoing disabilities arising from injuries sustained as a result of the accident. This includes ongoing wrist issues and low grade psychological symptoms.
On the evidence presented it is not possible to make a precise calculation as to economic loss. It is also apparent that the claimant’s business is in its early stages and it is not possible to predict what his future earnings from that business are going to end up given that it is in the “ramp up” stages of operation.
Taking into account the claimant’s young age, and the reasonably minor ongoing physical and psychological disabilities I assess economic loss on a buffer basis in the amount of $120,000.
Fox v Wood
This is agreed in the amount of $2,532.
SUMMARY OF DAMAGES AWARDED
I assess the claimant’s entitlement to damages under the MAI Act as set out below:
Past economic loss $63,262
Past superannuation $6,958.82
Future economic loss $120,000
Fox v Wood $2,532
TOTAL: $192,752.82
Noted that the insurer is to have credit for payments of weekly statutory benefits paid in the amount of $46,405.82 pursuant to s 3.40(1)(b).
COSTS
The insurer notes in their written submissions that it made a written offer on 14 May 2024 and the insurer intended to tender the offer at the conclusion of the assessment conference. The conference proceeded via video link and therefore a “sealed envelope” was not tendered.
It was agreed that I make a direction that the insurer pay the claimant’s legal costs in accordance with the Motor Accident Injuries Regulation 2017 (Regulation) with leave to approach the Commission in the event that the insurer wishes to make any submission in respect of the claimant’s cost in light of the written offer referred to above.
Accordingly, these reasons were initially issued in draft. I subsequently received a message from the insurer that it did not wish to make any submissions as to costs and it was requested that I issue my final certificate and reasons.
I make a general direction that the insurer is to pay the claimant’s costs in accordance with the Regulation.
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