Martignago v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 121
•1 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Martignago v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 121 |
| CLAIMANT: | Steven Martignago |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 1 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 42-year-old claimant driving semi-trailer on narrow rural road; alleged unidentified vehicle veered into his lane causing claimant to lose control; Askarou v Nominal Defendant and Dimovski v GIO considered; burst fracture of L3; fracture of the ulna and radius of the left arm; claimant stoic; returned to work within 3 months of undergoing L2-L4 laminectomy; self-employed director and truck driver; established loss of income for one year; thereafter no objectively identifiable economic loss; Husher v Husher applied; Held – evidence corroborated by contemporaneous complaints; Container Terminals Australia Ltd v Huseyin, and Mason v Demasi considered; breach of duty of care by driver of unidentified vehicle; no contributory negligence; non-economic loss, past economic loss, past superannuation, and Fox v Wood assessed; buffer of $500,000 for future economic loss; Penrith City Council v Parks; AAI Limited v Chan cited; total damages of $1,011,729. |
| 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. 2. Under ss 7.36(3) and 7.36(4) of the Motor Accident Injuries Act2017 (the MAI Act), 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $88,216.88 inclusive of GST. 4. Attached to this certificate are reasons for my assessment. |
STATEMENT OF REASONS
INTRODUCTION
Steven Martignago (the claimant) alleges he was driving his semi-trailer on 4 August 2021 when an unidentified vehicle veered into his lane causing him to take evasive action and lose control of his vehicle causing him to sustain injury (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 t/as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
Mr Martignago sustained the following injuries in the accident:
· Injury to his lower back – burst fracture of L3; and
· Injury to the left arm – fracture of the ulna and radius.
In a liability notice issued under s 6.20(1) of the MAI Act dated 15 July 2024 the insurer denied liability for the claim on the basis that there was insufficient evidence to determine that an unidentified vehicle caused or contributed to the accident.
The claim was listed for assessment on 19 March 2025. Mr Martignano was represented by Mr Nicolaous Ghabar of counsel instructed by Ms Murielle Abou Karam of Turner Freeman Lawyers. The insurer was represented by Mr Ben Wilson of counsel instructed by Mr Vid Dragomirovic of Meridian Lawyers. Ms Belinda Dockray, claims consultant participated by videolink through MS Teams.
The issues in dispute are the following:
· whether there was an unidentified vehicle and if so, whether there was a breach of duty of care by the driver of that vehicle;
· whether there was any contributory negligence by the claimant, and
· the assessment of damages.
I am asked to assess damages in respect of the following:
· non-economic loss.
· past economic loss, and
· future economic loss.
The parties have agreed the Fox v Wood component, being taxation payments deducted from weekly compensation payments is the sum of $11,789.
Application for an extension of time for Mr Griffiths to provide a report in reply
At the outset of the assessment conference Mr Wilson noted that the expert report of Mr McDonald relied upon by the claimant contained a critique of the analysis undertaken by Mr Griffiths for the insurer but Mr Griffiths had not had the right of reply.
When the matter was listed for teleconference on 7 November 2024, I directed the claimant to serve any expert engineers report on or before 31 January 2025 with the insurer to serve any further report by Mr Griffiths in reply by 28 February 2025. The claimant served the report of Mr McDonald in accordance with those directions.
Mr Wilson sought a direction that the time be extended for Mr Griffiths to provide a report in reply on the basis leave would not be sought to re-agitate the case or raise any new issues. Mr Wilson stated to the extent that Mr McDonald had disagreed with conclusions of Mr Griffiths he sought to ask Mr Griffiths to indicate whether he agreed or disagreed with the conclusions of Mr McDonald. Mr Wilson submitted there cannot be any prejudice to the claimant and it is a matter of fairness to the insurer who should be given an opportunity to put its best case forward. Mr Wilson stated the report would only be in reply, would not raise new issues, and may give rise to agreement which may assist the Commission.
Mr Wilson stated the insurer did not seek an adjournment and he conceded his application had not been foreshadowed with the claimant. Mr Wilson stated Mr Griffiths was asked to provide a report in reply but he indicated he could not do so in the time frame permitted by my directions.
Mr Ghabar on behalf of the claimant objected to the insurer’s application. He submitted without knowing what Mr Griffiths might say it was difficult to know whether it would give rise to matters which would need to be put to the claimant.
I refused the insurer’s application to obtain a report in reply from Mr Griffiths on the basis it may raise matters which need to be put to the claimant. When the insurer became aware they would not be able to obtain a report in reply from Mr Griffiths the issue could have been raised with me and the assessment conference rescheduled if necessary. Noting Mr Martignago was present and wished his claim to be finalised I indicated I considered any delay in permitting the insurer to obtain a report from Mr Griffith in reply would be prejudicial to the claimant.
LIABILITY
Fairfield Hospital
On the day of the accident Dr Bandara, orthopaedic registrar recorded the following:
“In semitrailer driving to parents place
Trying to avoid another vehicle mounted curb and drove into ditch being thrown up and down in cabin sustaining injuries”.
Statement of claimant recorded in police notebook
On 26 August 2021 the claimant was interviewed by Constable Tran who recorded the following in his police notebook:
“Q. Can you tell me what happened:
A. I turned onto Delaware Toad travelling about 45km/hr. I remember a car behind me and he turned into a driveway as I went around the right and left I saw a car approaching from the opposite lane. I moved my truck over slightly to the left and the vehicle past me. I looked into my right side mirror and as this happened I drifted into the grass patch and into a small creek, the truck came to a stop. I don’t remember what happened after but I got out of the truck and laid on the grass. I remember my left arm and lower back was sore. Motorist called triple 0 nearby.
Q. Did you drink any alcohol that day?
A. No.
Q. Were you on any medication?
A. No.
Q. Did you have your seatbelt on?
A. Yes
Q. Was there anything obstructing your way?
A. The vehicle in front of me.”
Report of Dr Chin, orthopaedic surgeon
Dr Chin treated the claimant at Liverpool Hospital on the day of the accident. In his reported dated 7 September 2021, he recorded the following history:
“He was travelling from one yard to another yard as part of his work. He was on a road whereby the vehicle coming from the opposite direction had veered onto his side of the road. He had to swerve into a ditch to avoid collision. He ran into a ditch and into a power pole. He was the driver of a semi-trailer.”
Property damage claim form
In a claim form dated 2 September 2021 the claimant recorded:
“I was travelling north on Delaware Road and there was vehicle travelling south on my side of the road. I moved off the road to prevent a collision and lost control and drove through a creek and collided with a power pole”.
Assessors report from QRM Claims Management
The assessors report in respect of damage to the claimant’s vehicle dated 11 October 2021 has the following description of the accident:
“The incident is said to have occurred on Delaware Road, Horsley Park New South Wales when the insured has moved off the road to avoid collision with oncoming vehicle on wrong side of road, insured lost control off road, through a creek and impacting a pole.
…
The damage to the vehicle is consistent with the incident description of running off the road…”
Statement of claimant dated 14 June 2023
Adopting the paragraph numbering in that statement the claimant addressed the circumstances of the accident as follows:
“8. On 4 August 2021, at about 9:15 am, I was driving my semi-trailer truck with an empty trailer, bearing registration number TOY104, near 140-147 Delaware Road in Horsley Park in a northerly direction towards Burley Road, at a speed of about 40 km/hr.
9. The day before, I had returned from Western Australia at about 2 pm and was not in any hurry to arrive at my next destination.
10. There are two narrow lanes on Delaware Road for traffic to flow in opposite directions. I frequently drive on this road.
11. Whilst the road is narrow it is sufficiently wide to allow two vehicles to pass each other going in opposite directions.
“12. Another vehicle was travelling on Delaware Road in the opposite direction to my vehicle. I do not possess any details of that vehicle, nor can I describe the type of vehicle it was. I faintly recall it being a small (either sedan or hatchback) blue vehicle but I cannot be sure.
13. I noticed an oncoming vehicle. As it got nearer, I noticed the vehicle slowly traverse over the broken white line in the middle of the road and began travelling partly in my lane. The lanes are narrow, and the roadway does not have concrete guttering. The road slopes down from the middle to the edges on both sides for water runoff.
14. The oncoming vehicle was probably only a third into my lane, that is, about a third of the car had crossed over the middle lane marking and into my lane.
15. I was forced to quickly take evasive action. I veered my vehicle to the left, slightly off the road, to avoid the collision, and looked to my right-side view mirror to see the other vehicle had safely passed by my vehicle. When I turned to look in front of me, I was already off the road. I drove into and back up the embankment to the other side of the road where I collided with a utility power pole. I struck the pole and my truck turned swiftly to the right and swerved across the road where it ended up.
16.I can only remember driving into the embankment and then coming to on the other side of the road.
17. The other vehicle did not stop but continued to drive away.
18. Following the accident, I was able to exit my vehicle and lay down on the grass beside it. I became aware of my left arm being broken as I could not bend or move it but I do not recall being in much pain in that moment. I believe I was in a state of shock. The adrenaline I felt inhibited the pain which I would have felt immediately following the accident.
19. As I lay on the ground thinking about what I should do, a local mechanic, who was travelling on Delaware Road, stopped to assist when he arrived at the scene of the accident. That mechanic contacted an ambulance, police, a tow truck, as my vehicle was no longer road worthy, and my mother whom he knew.”
Statement of claimant dated 19 March 2024
The contents of this statement as to the circumstances of the accident are nearly identical to the earlier statement.
However, paragraph 22 differs from paragraph 15 of the earlier statement by reference to the culvert. The variation in that statement appears after the words “…I was already off the road” and continues as follows:
“The landscape then dipped into a culvert that takes water under the road. I drove into and back up the culvert embankment to the other side of the road where I collided with a utility power pole. I struck the pole and my truck turned swiftly to the right and swerved across the road where it ended up”.
Statement of claimant dated 19 November 2024
The claimant annexed to this statement his logbook entry to demonstrate that he returned from home Western Australia at 3 pm on 4 August 2021.
Mr Martignago states he did no further driving work that day and went to sleep about 10pm.
He states he woke up on the day of the accident refreshed at 7.30am and just before 9.00am left the house to drive to the first yard at Cecil Park to wash the truck. The Gerni pressure washer was broken so he drove to the other yard at Horsley Park.
Mr Martignago states it was on his way to the yard at Horsley Park that the accident occurred. He states he was well rested. Further Mr Martignago stated:“20. I recall vividly the blue small car travelling towards me and causing me to take evasive action and veer off the road. I recall checking my right-side mirror to ensure the car had not collided with the rear of my trailer.
21. At no stage did I fall asleep nor was I using my phone before or at the time of the accident.
22. When I veered my truck evasively off the road, it dipped with the landscape into a culvert and, I do not recall exactly how, because I lost consciousness at that point, but my truck was propelled back up the culvert embankment where it collided with a utility power pole. I regained consciousness after my truck collided with the power pole. I assume I was only unconscious for a brief moment.
23. When my truck came to a stop on the other side of the road, I immediately exited my truck as I was worried I would be in danger if I remained inside for example if the truck caught fire.”
Statement of Jasmine Martignago
Ms Martignago, the claimant’s wife provided a statement dated 19 November 2024.
Ms Martignago states on the day before the accident the claimant returned from Western Australia at 3.00pm and stayed home the remainder of the day.
She states that evening she and her husband went to bed at their usual time of about 10.00pm. On the morning of the accident Ms Martignago states she woke everyone up at about 7.30am to prepare breakfast and to ensure the children were ready for the school class to be held over Zoom at 9.00am due to the pandemic.
Ms Martignago states she and her husband had coffee, and he ate coco pops with the children. She describes it as a normal and relaxed morning. She states just before
9.00am Mr Martignago left the house to go and clean his truck.
Injury report recorded by Clare H, case manager, EML
A report dated 6 August 2019 states IW (injured worker) is currently in hospital with his wife Jasmine as the contact for the claim until IW is out of hospital as he is not up to taking calls at this time.
The injury report includes the following:
“Details of incident: the truck has veered off the edge of the road and hit a creek and the hit a pole. Rural area narrow street as truck is too large and not allowed on the main road. Car was coming the other direction and that is why IW had to veer off road to avoid hitting the car.”
Application for personal injury benefits
In the Application for personal injury benefits dated 16 May 2023 the claimant stated:
“I was driving and there was a vehicle travelling on my side. I moved off the road to avoid a collision and lost control. I drove through a creek and collided with a power pole”.
Expert Reports
Report of Mr Michael Griffiths, Road Safety Solutions
Mr Griffiths provided a report dated 16 October 2024 at the request of the insurer.
Mr Griffiths states that the claimant’s contemporaneous accounts are primarily that he doesn’t remember but he thinks he was moving to the left to avoid an oncoming vehicle and then became distracted. He suggests that the claimant’s distinct lack of recollection is most consistent with having fallen asleep.
Mr Griffiths concludes that the physical evidence is that his large truck/trailer left the roadway showing distinct tyre pathways through the grass consistent with travelling unbraked for the full length of the vehicle. Mr Griffiths concludes this is most consistent with the claimant falling asleep so that steering could follow the crossfall to the left and depart from the roadway.
Mr Griffiths reported the camber of the road was sufficient to have caused an unsteered vehicle to drift to the left. He also notes the road was straight and relatively level in the area where the incident occurred.
Mr Griffiths concludes the physical evidence of a seemingly complete lack of braking of the rear wheels of the unladen low loader trailer shows that the trailer was not being braked heavily as its wheels passed over the grass verge. He opined if there was an oncoming vehicle he would have expected the truck driver to both steer leftward and to brake heavily.
Mr Griffiths states there is clear evidence that the truck left the roadway at a distinct angle following the crossfall of the roadway with the steering being able to turn left without any input from the driver. He states the tyre marks through the long grass are definite evidence there was no braking until the truck and trailer had completely cleared the stormwater drainage canal.
Report of Mr Nigel McDonald, Collision & Safety Consulting and Forensic Engineers
Mr McDonald provided a report at the request of the claimant’s lawyers dated
29 January 2025.Mr McDonald was asked to make the following assumptions:
(a) on the day of the accident the claimant was driving his semi-trailer with an empty flatbed along a narrow road;
(b) the claimant was travelling at a speed of about 40 kmph;
(c) on Delaware Road there are two narrow lanes (one each way) with grass embankment on both sides;
(d) the claimant recalled a small blue vehicle travelling towards him and as it neared his truck, the blue vehicle slowly traversed over the broken white line in the middle of the road and began to travel partly in his lane. In order to avoid an accident he took evasive action veering his vehicle to the left and slightly off the road;
(e) he momentarily turned his head to look into the right side mirror to ensure the vehicle had safely passed. By the time he looked back the truck had continued off the road to the left and into a culvert ditch; and
(f) his vehicle went down into that culvert before driving back up, striking a utility power pole and then swerving to the opposite side of the road.
Mr McDonald concluded as follows:
(a) the claimant reported steering left to avoid an oncoming vehicle;
(b) the physical evidence indicates that the claimant’s truck travelled off the road at an angle of 8º to 9º of the road alignment;
(c) the path of the truck off the road is consistent with the vehicle being actively steered left and consistent with avoiding an oncoming vehicle;
(d) the path of the truck is inconsistent with the very shallow angle expected for a gradual drift off the roadway that would be associated with the inaction of fatigue or other inattention, including consideration of effect of the slope of the roadside embankment;
(e) it is not possible to determine if the truck braked between departing the roadway and striking the roadside pole, and
(f) of the two scenarios including the scenario that the claimant had fallen asleep the claimed avoidance of an oncoming vehicle was more likely than fatigue as a cause of the collision.
Oral evidence of the claimant
Mr Wilson referred Mr Martignago to his statement dated 19 June 2023 where he stated whilst he could not be sure he faintly recalled the vehicle travelling in the opposite direction to be a small (either sedan or hatchback) blue vehicle.
Mr Martignago was then referred to his statement dated 19 November 2024 where he stated he recalled vividly the blue small car travelling towards him and causing him to take evasive action and veer off the road. When asked about the inconsistency between these two statements Mr Martignago stated there was definitely a vehicle coming towards him and he would say more so than not that it was blue.
Mr Martignago did not agree with the suggestion that he was prepared to exaggerate to assist his case on liability.Mr Martignago was asked about the statement he provided to Constable Tran on
26 August 2021. He said the statement was taken by Constable Tran at the site where his new house was being built, whilst he was standing in the yard on crutches.The entry recorded in the police notebook was read by the claimant who denied the version as recorded was his exact words, stating words were left out and some words inserted noting he was standing in the middle of a paddock at the time. He agreed he did not say anything about braking although he was adamant he had braked.
Mr Wilson suggested to Mr Martignago that he did not describe the other vehicle crossing the white lines in the middle of the roadway, meaning he did not describe any wrongdoing by another vehicle. Mr Martignago suggested he intimated wrongdoing by another driver when he was asked what was in his way. When he was asked how he could have avoided the accident he said by not moving which would have led to a head on with another vehicle, although he noted Constable Tran said he could not write that.Mr Wilson put to Mr Martignago that the reference to “the vehicle in front of me” referred to a vehicle ahead of him travelling in the same direction. Mr Martignago denied he was referring to a vehicle ahead of him travelling in the same southerly direction.
When it was put to Mr Martignago that it was glaringly improbable that one third of the other vehicle was on his side of the roadway, he stated he could not give an exact measurement although he did not resile from that statement.
When asked whether it was open to him to keep his eyes facing the direction of travel at all times to make sure his vehicle didn’t leave the roadway Mr Martignago stated it is necessary to be aware of everything that is going on around you when driving a heavy vehicle.
When it was put to Mr Martignago that on his police version, he lost control because he was watching the other vehicle in his rear vision mirror he stated he was watching to make sure he (the other vehicle) didn’t come in contact with the side of the trailer.
Mr Martignago stated the workers compensation claim was submitted whilst he was in Liverpool Hospital by his wife Jasmine Martignago. He stated he was on the phone with his wife while she was preparing the claim.
Mr Martignago was asked about a number of phone calls to or from his phone in the early hours of 4 August 2021. Mr Martignago could not recall those calls. Mr Ghabar submitted that the notation UTC means Universal Time Code and that there is a
10-hour time difference between the UTC and local time in Sydney as of
4 August 2021. On that basis he suggested bringing the time forward 10 hours means the calls correlate with the time period in which the accident occurred.
The claimant’s submissions
The claimant submits that his evidence has been consistent from the time of the accident to date.
The claimant submits the accident seems to have occurred in close proximity to the culvert where the road was particularly narrow, noting at the point where it passes over the culvert the road was only 5.1m in width.
The claimant submits the version of events reported in Constable Tran’s notebook has to be considered in its totality noting the claimant made it clear his path was obstructed by the oncoming vehicle.
Having regard to the history recorded by Dr Bandara at Fairfield Hospital on the day of the accident, the totality of the version recorded by police, the history reported by
Dr Chin in his report of 7 September 2021 and the version recorded in the property damage claim form on 2 September 2021 the claimant submits there can be no suggestion the claimant has concocted the story of an unidentified vehicle at a later date.The claimant submits the opinion of Mr Griffiths relied upon by the insurer is based on the incorrect assumption that the claimant does not remember what occurred. The claimant submits he remembers clearly what occurred and it is submitted Mr Griffiths failed to have regard to the evidence including the totality of the claimant’s statement to police and the description contained in the Assessors report for the property damage claim.
The claimant also relies on his evidence and that of his wife to assert he had a good night’s sleep the night before the accident and was alert.
The claimant submits the evidence of Mr Griffiths that the truck veered off the road and travelled unbraked for the length of the trailer consistent with a driver falling asleep is countered by the evidence of Mr McDonald who came to the view that the path of the truck off the pavement and across the roadside appeared due to active steering of the driver and not due to inattentive drift off the side of the road.
The claimant submits that primary liability can be established by accepting the evidence of the claimant.
The insurer’s submissions
The insurer submits the circumstances of the accident are wholly the fault of the claimant, where:
(a) the claimant had taken his eyes off the road to allegedly watch the vehicle pass in his right sided rear-view mirror; and
(b) the claimant failed to maintain control over his vehicle.
Whilst he did not abandon the suggestion that the claimant simply fell asleep and there was no other vehicle. Mr Wilson submitted the real battleground was whether there was fault on the part of the driver of the unidentified vehicle.
The insurer submits in the version of events recorded in Constable Tran’s notebook the claimant makes no mention of any vehicle veering into his lane or the need to take evasive action to avoid a collision.
Mr Wilson submitted that even if there was another vehicle which passed the claimant’s truck it was the claimant who moved his truck slightly to the left and lost control because the road was narrow. He notes the claimant’s own words recorded in Constable’s Tran’s notebook were “I looked into my right-side mirror and as this happened, I drifted onto the grass patch and into a small creek, the truck came to a stop.” Mr Wilson submitted even if there was another vehicle passing there is no suggestion of fault on the part of that vehicle. He notes the claimant himself uses the word “drift” which is consistent with inattention by the claimant when he looked in his rear vision mirror instead of looking to the front and maintaining control of his vehicle.
In the event it is found the driver of the unidentified vehicle breached their duty of care the insurer submits a finding of contributory negligence must be found on the part of the claimant taking into account the following:
(a) Delaware Road appears to be a straight stretch of road that would have enabled the claimant sufficient view of the alleged unidentified vehicle as it approached, and
(b) the claimant has a higher level of culpability, given that it was his actions of veering to the left and being distracted when looking in the rear and side mirrors, that led to him driving off the road and colliding with a pole.
The insurer submits a reduction of contributory negligence should be in excess of 50%.
My determination as to liability
The insurer argued that a cautious approach is called for in claims against the Nominal Defendant. The insurer referred to the dicta of Clarke JA in Askarou v Nominal Defendant where he stated:
“The inability of the nominal defendant to call evidence from witnesses to the accident necessarily required a trial judge to evaluate, with some care, the evidence which has been given in order to determine whether he can accept it.”[1]
[1] Askarou v Nominal Defendant (1989) 8 MVR 491.
The insurer also referred to Dimovski v GIO (NSW) where Clarke JA concluded a judge may not be satisfied an accident happened in the manner asserted by the plaintiff even in the absence of any contradictory evidence.[2]
[2] Dimovski v GIO (1995) 21 MVR 288 at 291
There is no dispute about the following facts:
· Delaware Road, Horsley Park is a local rural road that follows a generally north south alignment;
· Delaware Road accommodates two-way traffic with one lane in each direction separated by line marking.
· the pavement width varies between 5.1 and 6.8 metres, with the narrowest portion of the pavement adjacent with the watercourse beneath the culvert;
· the width of the northbound lane varies from 2.5 to 3.8 metres and the width of the southbound lane varies between 2.6 and 3 metres;
· Delaware Road is straight and near level with grass extending to the pavement edges on both sides of the road;
· the road is raised above the surrounding ground level approaching the culvert;
· the speed limit was 60kph and the claimant was travelling at 40 to 45 kmph;
· the weather at the time was fine and the road surface dry;
· the claimant was driving a 2005 model Kenworth Prime mover towing a flatbed trailer; and
· the prime mover was in excellent roadworthy condition prior to the accident.
The reliability of the claimant’s evidence
Mr Ghabar submitted Mr Martignago gave his evidence in a straightforward manner, made concessions which were appropriate, and his evidence should be accepted.
Mr Wilson for the insurer raised questions about the reliability of the claimant’s evidence based on alleged contradictions in his evidence.
I accept Mr Martignago was a straightforward and honest witness. However, whilst there is no issue about his credibility that does not mean that his evidence is reliable. In Onassis v Calageropoulis v Vergottis [3] Lord Pearce explained the difference between the concepts at [431] where he stated:
“First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking by an overmuch discussion of it with others? Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
[3] Calageropoulis v Vergottis [1968] 2 Lloyds Rep 403
In Campbell v Campbell [4] Sackar J suggested that greater weight should be accorded to contemporaneous documents than the flawed attempts at recollection of facts by persons with an interest in the outcome of the litigation.
[4] Campbell v Campbell [2015] NSWSC 784 at [74] and [76]
The insurer relied upon various alleged inconsistencies in the claimant’s evidence to raise doubts about the reliability of the claimant’s evidence.
The insurer referred to inconsistencies between the claimant’s statement dated
19 June 2023 and his statement dated 19 November 2024. In the first statement
Mr Martignago said he faintly recalled the unidentified vehicle was a small blue sedan or hatchback whilst in the second statement he asserted he recalled vividly the presence of a blue small car travelling towards him and causing him to take evasive action. This is an example of the tendency described by Lord Pearce in Onassis for the memory to become fainter and the imagination more active over time. Whilst I consider Mr Martignago was a truthful person telling the truth as he saw it at the time of the 2024 statement, I am of the view the recollection recorded in the earlier statement is likely to be more accurate.The insurer also raised inconsistencies in the claimant’s evidence in relation to his
pre- and post-accident working hours. In his statement dated 20 March 2024
Mr Martignago stated he continued to work 35 hours per week which was five hours less than he worked prior to the accident, whilst Dr New reported in June 2023 he was working 12 hours per day five days per week. Mr Martignago agreed he was possibly working 60 hours per week, although he denied he was working more hours per week than he was before the accident. The claimant ultimately stated his hours varied, noting there were days where he started work at 9.30pm or midnight.Whilst Mr Martignago agreed his business revenue had increased significantly in the 2023 and 2024 financial years, he suggested it was associated with the nature of the loads being transported and not because he was working longer hours than
pre-accident.I am of the view any inconsistencies in the claimant’s evidence about the hours he has worked since the accident have arisen because his hours have been variable and where he has not appreciated the importance of providing an accurate history about such matters. I do not consider these inconsistencies give rise to any significant concern about the reliability of the claimant’s evidence.
The insurer also alleges inconsistencies arise out of the evidence relied upon by the claimant to establish breach of duty of care by the driver of an unidentified vehicle.
The insurer argues the histories recorded by Dr Bandara and Dr Chin should be treated with care having regard to the warnings given by Basten JA in Container Terminals Australia Ltd v Huseyin[5] and Mason v Demasi[6] where he cautioned that clinical notes:
· are usually taken in furtherance of a purpose different to that for which they are used in proceedings;
· do not contain the questions of the health professional that elucidated the patient’s reply;
· are likely to be only a summary rather than a verbatim recording, and
· are affected by a range of factors, including fluency of language and the patient’s understanding of the purpose of the questioning.
[5] Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8].
[6] Mason v Demasi [2009} NSWCA 227 at [2].
The version of events recorded by Dr Bandara on the day of the accident includes:
“… Trying to avoid another vehicle mounted curb and drove into ditch” whilst the version recorded by Dr Chin, the surgeon who operated on the claimant’s left arm at Liverpool Hospital shortly after the accident includes, “… the vehicle coming from the opposite direction had veered onto his side of the road. He had to swerve into a ditch to avoid collision.”Both versions were provided by the claimant independently of the other and represent contemporaneous accounts of the accident.
However, keeping in mind the need to exercise caution as per Demasi it becomes necessary to consider what further corroborative evidence is available.
The next version in time is the statement recorded by Constable Tran in his police notebook which, the insurer submits does not allege fault on the part of the unidentified driver. The insurer argues this statement is inconsistent with the versions reported by Drs Bandara and Chin where there is no suggestion the vehicle approaching from the opposite direction veered into the claimant’s lane. Quite simply the insurer says, even if there was an oncoming vehicle, it travelled past the claimant’s truck in its own lane and it was the claimant’s own actions in looking in the rear vision mirror which caused the truck to drift off the road.
Whilst the claimant answered “the vehicle in front of me” to the question “Was there anything obstructing your way” the insurer submits there is no evidence this was an oncoming vehicle as opposed to a vehicle in front of the claimant’s vehicle travelling in the same direction.
When considering these versions of the accident it is worth keeping in mind that the claimant was unlikely to realise that the minutiae can be significant. The claimant’s oral evidence is that he provided his statement to Constable Tran whilst standing in a yard on crutches and that he informed Constable Tran he swerved because another vehicle encroached onto his lane. Mr Martignago was of the view his words
“The vehicle in front of me” identified the presence of the unidentified vehicle.The final corroborating piece of evidence was the property damage claim form completed on 2 September 2021 in which Mr Martignago stated “…there was a vehicle travelling south on my side of the road. I moved off the road to prevent a collision and lost control…”.
Read it in its entirety I am satisfied the claimant was referring to the presence of another vehicle coming in the opposite direction when he provided his statement to Constable Tran and I find that statement and the description of the accident contained in the property damage claim are corroborative of the versions recorded shortly after the accident by Drs Bandara and Chin.
I find the evidence of the claimant to be consistent and reliable. Any discrepancies are minor and, in my view, reflect the evidence of a person who has not sought to tailor his evidence for gain.
The expert opinion
The suggestion by Mr Griffiths that the accident occurred because the claimant fell asleep at the wheel is not supported by the evidence.
Having regard to the evidence of the claimant and his wife that he had a good night’s sleep the night before the accident I am satisfied he was not fatigued at the time of the evidence. I am also satisfied having regard to the contemporaneous accounts provided by the claimant that he did remember what occurred.
Mr Griffiths argued his contention that the claimant fell asleep at the wheel was supported by the physical evidence which showed the claimant’s truck leave the roadway and travel unbraked for the full length of the vehicle. However, Mr McDonald conducted his own analysis of the crash dynamics and concluded that the path of the claimant’s truck off the pavement and across the roadside grass appeared to be due to active steering of the driving not due to inattentive drift off the side of the road.
I prefer the opinion of Mr McDonald where it is supported by the contemporaneous accounts of the accident provided by the claimant and find the path of the truck is more consistent with active steering. Indeed, Mr McDonald thought the path of the truck was inconsistent with the very shallow angle expected for a gradual drift off the roadway which would be consistent with fatigue or falling asleep at the wheel.
A further submission from the insurer was that the claimant veered off the road and lost control when he looked in his rear vision mirror to watch the oncoming car pass his truck.
It is clear from the report of Mr McDonald that the width of the roadway coincident with the culvert was 5.1m wide and the truck and trailer driven by the claimant was 2.5m wide. That means approaching the culvert the truck took up nearly the entire northbound lane leaving very little space to allow an oncoming vehicle to encroach without collision into the claimant’s lane.
I do not consider it necessary to conclude that a third of the oncoming vehicle encroached into the claimant’s lane resulting in evasive action. Indeed, I suspect this is a further example of the tendency described by Lord Pearce in Onassis for the memory to become fainter and the imagination more active over time. I am satisfied that any encroachment onto the claimant’s side of the road would be sufficient to require him to take evasive action having regard to the narrow road and the width of the claimant’s vehicle.
Where Dr Bandara recorded the accident occurred when the claimant was trying to avoid another vehicle, Dr Chin recorded a vehicle coming from the opposite direction veered onto his side of the road and he had to swerve into a ditch to avoid a collision, and where Mr Martignago stated in the property damage claim form that he had to move off the road to prevent a collision with a vehicle travelling south on his side of the road, I am satisfied, on the balance of probabilities that an oncoming vehicle had encroached into the claimant’s lane causing him to veer to the left.
Whilst the statement provided to Constable Tran suggests the claimant’s vehicle drifted onto the grass patch when he looked into the right-side mirror it is notable that he refers to a vehicle approaching from the opposite side and had already moved his truck slightly to the left before the vehicle passed him. In other words, the movement to the left commenced before the claimant looked into the side mirror. Having regard to the narrowness of the road and the size of the claimant’s vehicle the die had been cast and the truck which had already steered to the left drifted onto the grass.
I am satisfied in an attempt to avoid the oncoming vehicle which had encroached into his lane the claimant steered his vehicle to the left and having regard to the presence of the roadside grass and the approaching embankment was unable to regain control of his vehicle which subsequently drove through the culvert, before colliding with a telegraph pole and travelling across the road.
I am satisfied the accident occurred due to a breach of duty of care by the driver of the unidentified vehicle.
Was the claimant contributorily negligent
In Podrebersek v Australian Iron and Steel [7] 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.”
[7] Podrebersek v Australian Iron and Steel (1985) 59 ALR 529
It is difficult to establish any departure from the standard of care of the reasonable person by the claimant.
He was travelling at 40 to 45kmph on a rural road where the speed limit was 60kmph. He was not fatigued. The road was narrow and faced, as he was, with a vehicle encroaching into his lane Mr Martignago took evasive action by steering his vehicle to the left. The alternative was a collision between a vehicle, possible a small vehicle and a semi-trailer which may have had catastrophic consequences for more than just the claimant.
In steering his vehicle to the left Mr Martignago had no alternative other than to leave the road, having regard to the size of his vehicle and the narrow width of the road. Unfortunately, once his vehicle left the road the size of his vehicle and the terrain around the culvert prevented the claimant from regaining control of his vehicle.
I am not satisfied the claimant failed to take any care for his own safety. I find he was not to blame in any way for the accident and do not consider there is any need to apportion any responsibility for the accident to the claimant. I do not consider he was contributorily negligence.
THE ASSESSMENT OF DAMAGES
Statements
The claimant’s statements
Mr Martignago has provided statements dated 14 June 2023, 19 March 2024 and
21 February 2025 in which he addresses matters relevant to the question of damages.He completed Year 10 before completing an apprenticeship as a diesel mechanic in about 2003. In July 2024 Mr Martignago started his own freight transportation company, Steve’s Freighters Pty Ltd (Steve’s Freighters). He continued to be the managing director and was employed as a full-time heavy vehicle driver.
Mr Martignago disclosed a workers compensation claim for a tailbone injury in 2003. Otherwise, he asserts he was fit and healthy at the time of the accident. He underwent a shoulder arthroplasty in 2003 with no ongoing issues. Mr Martignago reported experiencing minor back pain prior to the accident, however, this did not restrict his ability to work, and he managed the pain by undertaking physiotherapy and home exercises.
Mr Martignago states prior to the accident he enjoyed motorbike riding, boating, camping, jet skiing, playing ball and wrestling with his children as well as attending family events. He can no longer enjoy those activities.
Following the accident on 4 August 2021 Mr Martignago was transported by ambulance to Fairfield Hospital. On 6 August 2021 he underwent open reduction and internal fixation to his left forearm at Liverpool Hospital under the care of Dr Raymond Chin. On 7 August 2021 he underwent surgery, namely a L2/L4 decompression, pedicle screw and posterolateral fusion to his lumbar spine at Southwest Sydney Private Hospital under the care of Dr Simon McKechnie. He was subsequently admitted to Campbelltown Private Hospital for rehabilitation following his lower back surgery and was discharged on 23 August 2021.
iCare accepted the workers compensation claim, met the claimant’s treatment costs and paid him weekly compensation for his absences from work following the accident.
Where the Application for personal injury benefits was not submitted until 25 May 2023 the claimant’s statement dated 14 June 2023 purports to provide an explanation for the delay in lodging the claim under the MAI Act.
Mr Martignago subsequently completed physiotherapy and hydrotherapy with Greenfields Physiotherapy. He has not attended physiotherapy since March 2023.
Mr Martignago stated he continues to consult his general practitioner (GP) Dr Beryl Pham on an as needed basis. He consumed anti-inflammatories and paracetamol for pain when extreme.
Mr Martignago stated since the injury he has not lived a day without back pain. Driving aggravates his lower back pain, and he can no longer undertake long haul drives to Western Australia, Northern Territory or North Queensland. He said he completed one drive to North Queensland since the accident, but he was very sore after the trip.
Mr Martignago stated since the accident he has difficulty mowing the lawn, weeding, trimming, pruning, general cleaning, cooking, changing tyres or any task at height. He described difficulty with heavy lifting and carrying, tasks requiring repetitive twisting and bending of his back, quick movements, climbing ladders, use of stairs or walking on uneven surfaces, prolonged sitting, standing or walking and general exercise.
Mr Martignago also described continued weakness in his left arm, difficulty gripping objects and twisting his arm.
Mr Martignago described low energy levels and motivation due to disturbed sleep and pain. He reported worrying about further injury and about his future because of his reduced capacity to work.
Mr Martignago stated he returned to work on light duties in late 2021 working 15 hours per week. He commenced with pilot vehicle driving and allocations. He progressively increased the hours he worked throughout the year but states since about July 2022 he has worked 35 hours per week on modified duties. He is restricted to lifting 10kg. In his 21 February 2025 statement Mr Martignago stated his hours vary, some weeks he works more hours than he should and in other weeks he works less but will then work over the weekend to make up for it.
Mr Martignago stated pre-injury he repaired his own vehicles but now he must pay someone to undertake repairs he would ordinarily do himself or rely on his brother or father to undertake the repairs.
Mr Martignago stated he felt pressured to continue working to provide for his growing family’s expenses. Since 2024 he has four children to support.
Prior to the injury Mr Martignago had two trucks and in 2024 he purchased a second truck to replace the one destroyed in the accident. He notes he did not have to pay for the hire, maintenance or storage of a second truck from 2021 to 2023. Mr Martignago stated his wife also helped operate the business and to complete some of the allocated tasks in the business, although he noted she also had young children to care for and other household tasks to complete.
In his statement dated 21 February 2025 Mr Martignago reported when driving he is required to stop frequently and undertake stretching exercises before he continues.
Mr Martignago described securing work moving generators and data centres which does not involve manual labour and pays well. The objects are required to be moved overnight because they are large items which cannot fit on the road in one lane. His large trailers have the capacity to transport these items.
Statements of Jasmine Martignago
Jasmine Martignago provided a statement dated 28 February 2025.
She stated prior to the accident she worked in an office manager type role in her husband’s business which involved invoicing, bookkeeping, record keeping and other administrative tasks.
Her role did not substantially change after the accident except whilst her husband did not have the capacity to work, she undertook pilot vehicle driving, that is, escorting large vehicles that do not fit in one lane, generally at night. She states after the claimant returned to work and following the birth of her third child on 2 February 2022 and her fourth child on 24 May 2024, she could no longer undertake evening work.
Statement of Peter Martignago
Peter Martignago, the claimant’s brother provided a statement dated 3 March 2025.
He stated he owns the company P & S Haul-Em Pty Ltd (P & S) with his wife, and he also owns a third share of GPS Trailer Hire Pty Ltd (GPS) with his father and the claimant. He states P & S hire trailers from GPS. P & S source truck driving work and have about 10 subcontractors on a full-time basis to complete driving work. He states P & S subcontract Steve’s Freighters.
Mr Peter Martignago stated before the accident, the claimant was fit and healthy and he would send any job his way including jobs which required heavy lifting. However, since the accident he only sends the claimant light work, or jobs which do not require lifting of chains or physical labour.
Mr Peter Martignano stated the larger trailers purchased by GPS have been able to complete movement of large items such as data centres which do not fit on one lane and need to be transported in the evenings with pilot drivers. This work has benefited the claimant because it is light, no lifting is required, and the trailers are driven at night allowing the driver a break during the day. He states he does not know how long the data centre work will last.
Mr Peter Martignago states the claimant can no longer tarp loads, nor can he deal with general loads. This means he needs to be accompanied by someone else on jobs which require some labour. He said if there is no light work the claimant cannot work.
Oral evidence of the claimant
Mr Martignago stated before the accident he worked six days a week truck driving. He stated he worked an average of 14 to 16 hours per day although not solely driving as he also undertook other tasks including maintenance and loading and unloading.
Mr Martignago was questioned about his statement dated 20 March 2024 where he stated he continued to work 35 hours per week which was five hours less a week than he worked prior to the accident, meaning pre-accident he worked 40 hours per week. Mr Wilson referred Mr Martignago to the report of Dr New dated 7 June 2023 where he reported the claimant was working eight to 12 hours per day, five days per week, subject to his pain presentation. When asked if that meant he was working 60 hours per week Mr Martignago said, “possibly yes” However, when asked if that meant he was working more hours in his business than he was prior to the accident
Mr Martignago said,” No”. Mr Wilson referred Mr Martignago to the report of Mr Croft, forensic accountant who concluded the claimant had significantly increased his weekly hours in the post-accident period and was now working close to an average of
50 hours per week. Mr Martignago stated the work was not limited to starting at nine and finishing at five. He stated he may turn up to a job and load but then not be able to travel until 9.30pm or midnight. He also said there can be waiting time associated with loading, for example, waiting for a crane or forklift to be available. He said his hours vary and when driving he finds it necessary to take a break and stretch his back.Mr Martignago confirmed prior to the accident he drove two trucks which were owned by a related entity, Steve’s Trucking, and hired out to Steve’s Freighters. He stated when he is driving one truck the other is kept in storage in a garage on Goodrich Road, Cecil Park where he is building a house. Mr Martignago confirmed he is the only driver of those trucks and whilst he is driving one truck the other might be under repair or being loaded. He confirmed following the accident he operated with one truck until 2024 when a new truck was purchased by Steve’s Trucking at a cost of about $500,000. It was the same type of truck as the one damaged in the accident. When asked if the decision to purchase a $500,000 replacement truck was because he saw himself operating the business over the long-term Mr Martignago said it was to try and get ahead whilst possible. Mr Martignago noted he has two different types of truck, one longer and one shorter which can be used for different types of loads.
Mr Martignago agreed that the sales revenue of Steve’s Freighters increased dramatically in the 2023 and 2024 financial years.
Prior to the accident he undertook general maintenance of his trucks and trailers which required manual labour including under trailers, under the bonnet or hood of a truck and including climbing and twisting. Mr Martignago stated he can no longer undertake that type of maintenance work.
Mr Martignago described shooting pains in his arm but described his back as more problematic. Mr Martignago agreed there had been no loss to his business for several years. He said that was due to the different type of workload, including the transportation of tunnel boring equipment, generators and data centres. He suggested it was uncertain how long this work would be available. He agreed his work can be broken up during the day which gives him time to relax and recover.
Mr Martignago said he could not be precise but agreed it was several years since he last saw a neurosurgeon or orthopaedic surgeon for his back. He also agreed he did not take medication and had not done so since about three months after leaving hospital.
Since the accident Mr Martignago had bought land to build a new house which was nearly finished and agreed he had inspected the house from time to time.
When question by Mr Wilson Mr Martignago agreed he told Dr New that he had an overall 60% improvement in his back since the surgery, although he noted he could not get out of bed before.
Mr Martignago agreed he occasionally uses a ride on mower although he indicated he tries to delegate the task to his children. Mr Martignago agreed he paces himself.
THE MEDICAL EVIDENCE
Pre-accident medical records
The claimant consulted Dr Pham of Horsley Park Medical Centre on 9 August 2008 complaining of lower back pain worse with movement. On 29 September 2008
Dr Pham reported recurrent lower back pain.On 16 April 2014 Dr Pham reported acute lower back pain associated with pain shooting down the right leg, worse when standing for long periods. The diagnosis was severe, chronic back pain.
Post-accident medical records
The report of the New South Wales Ambulance Service states:
“38yo M, driver of semi-truck involved in 1x vehicle MVC into power pole, wires reported low-hanging but not touching vehicle. … pt found laying in grass ditch; A+O in some distress – indicating ?#L forearm; … c/o generalised lower back pain …”.
The claimant was admitted to Liverpool Hospital under the care of Dr Raymond Chin, orthopaedic surgeon on 4 August 2021 in respect of left forearm swelling and tenderness. He was diagnosed with horizontal fractures in the shaft of the radius and ulna. He underwent open reduction and internal fixation with plates and screws of both fractures.
He was also diagnosed with an L3 burst fracture with retro pulsed fragments impacting the cauda equina. An MRI scan demonstrated moderate canal stenosis secondary to the L3 burst fracture.
Mr Martignago was then transferred to Southwest Sydney Private Hospital for management of the L3 burst fracture under the care of Dr Simon McKechnie.
On 7 August 2021 Dr McKechnie performed an urgent L2-L4 laminectomy with L2, L3 and L4 pedicle screw and posterolateral fusion.Mr Martignago was admitted to Campbelltown Private Hospital for rehabilitation post L2/L4 laminectomy and pedicle screw fusion between 19 August 2021 and
23 August 2021 when he was discharged home.On 9 November 2021 Dr McKechnie reported Mr Martignago had mild residual back pain, but no radicular leg pain and no obvious neurological deficits. Dr McKechnie stated extension of the fusion to the L5 level was a possibility. He recommended
Mr Martignago could return to part time light duties of 15 hours a week.Rebound Rehab completed a Recover at Work Plan on 17 December 2021 in which it was noted the claimant did not always have enough work to complete during the week within his current restrictions. On 23 February 2023 the rehabilitation case was closed.
On 7 February 2022 given the stability of the imaging findings Dr McKechnie reported Mr Martignago could gradually increase his hours at work as tolerated.
He recommended Mr Martignago stay on a lifting restriction and reported it was likely he would find that long periods of truck driving aggravate the lower back pain.On 16 May 2022 Dr McKechnie reported the claimant was clinically unchanged with persistent pain. He noted he was performing seven hours a day of modified duties at work. He recommended he avoid any repetitive bending and heavy lifting.
Between 25 August 2021 and 13 March 2023 the claimant underwent physiotherapy and hydrotherapy with Greenfields Physiotherapy in respect of his lumbar spine and left wrist. The history recorded on 25 August 2021 was “patient was driving truck went to avoid oncoming vehicle and truck swerved through drain. Shattered steering wheel and in the process fractured L spine and L wrist”.
On 31 March 2023 Dr McKechnie reported Mr Martignago was still complaining of persistent pain. He noted he was neurologically stable and encouraged him to continue with his exercise program and to take Panadol or low dose
anti-inflammatories if required.On 3 April 2023 Dr McKechnie reported the claimant was still complaining of persistent back pain. He noted follow up X-rays demonstrated good position of internal fixation, no instability and evidence of calcification at the fracture site and an unchanged L4/5 spondylolisthesis.
Dr McKechnie discharged the claimant from his care on 17 July 2023. He noted he remained stable with mild residual pain. He reported he was able to self-manage the residual symptoms with a long-term core strengthening and stabilising exercise program and avoidance of heavy work or lifting.
Medico-legal reports
Dr Charles New, orthopaedic surgeon
Dr New assessed the claimant at the request of his lawyers and provided a report dated 7 June 2023.
Dr New reported the claimant returned to limited duties on 15 November 2021 subject to a lifting restriction of 10kg and a time restriction on driving of two hours.
Dr New reported the claimant continued to have debilitating low back pain and left forearm pain. He reported the pain was an aching stabbing sensation exacerbated by walking, changing positions, coughing, sneezing, sitting, lifting and bending. His sleeping capacity had decreased due to pain as had sexual relations with his partner.
On examination Dr Low noted marked restriction of lumbar spine range of movement of 50%. Dr New diagnosed a burst fracture of L3 which required open reduction and internal fixation with an instrumented spinal fusion. He reported the long-term prognosis for that type of fracture was poor. He reported a spondylolisthesis grade 1 at L4/5 below the instrumented fusion.
He also diagnosed a fracture of the left forearm which required open reduction and internal fixation. Dr New reported the claimant had lost 50% of supination and pronation of his left elbow. Dr New concluded the marked restriction in range of movement in supination and pronation of the left elbow caused a restriction in the claimant’s ability to work with manipulation of heavy objects.
Dr New considered they claimant may require further surgery on his lumbar spine to extend the fusion to L5.
Dr New reported the claimant was working 812 hours per day, five days per week. However, he concluded the future back pain will be a limiting step in working as a driver and the claimant may have to consider changing occupation if his back and arm pain become significantly worse.
Dr New reviewed the claimant and provided a report dated 3 March 2025. Dr New reported the claimant was working 38 hours per week as a truck driver although he does not load and unload.
Dr New reported the claimant had gained 15kgsince the accident and currently weighs 120kg. He reported the long-term prognosis was poor with regard to chronic pain and weight gain.
Dr New concluded the natural history of the condition was that the claimant’s back pain will become more chronic and severe. He stated there is a strong possibility he will need to stop working at some time in the near future. Dr New was of the opinion the claimant will struggle to work over the age of 50 in his current capacity.
Dr Robert Breit, orthopaedic surgeon
Dr Breit assessed the claimant at the request of the insurer and provided a report dated 29 January 2024.
He reported the claimant’s left arm was associated with some rotatory restriction and pain towards the end range of movement. He reported the claimant’s back was stiff and sore. He noted he could walk for about 20 minutes, sit for one to two hours and lift 10kg.
Dr diagnosed a burst fracture of L3 without neurological deficit and a fracture of the left radius and ulna.
Dr Breit reported the claimant remained incapacitated for work, but considered he could undertake normal hours where there is no prolonged standing, walking, negotiating stairs, and where he does not have to carry more than 10kg.
Dr Breit reported:
“The X-ray that I attached shows that Mr Martignago has L5 pars defect with a slip which is longstanding. Having had the fusion above there is alteration in the mechanics and stress at this level so that there is a high probability that the fusion will need to be extended, and I consider that relates to this accident”.
Dr Breit assessed a 24% whole person impairment (WPI).
Dr Brian Potter, psychiatrist
Dr Potter assessed the claimant at the request of the insurer and provided a report dated 20 May 2024.
Dr Potter reported at that time Mr Martignago was involved in transporting desk equipment which was loaded and unloaded with the use of a crane and a forklift.
He reported he was working 35 hours a week, working for himself. He manages with difficulty.Dr Potter described a tension in the claimant’s relationship with his wife where his wife now undertakes all domestic duties which is a change from his previous significant involvement.
In relation to his work Mr Martignago reported his father tells him that he is slow, and he struggles to keep up. He reported a concern about “slippage” adding “if slip, sever my spinal cord.” He reported he continued to drive but was now more apprehensive and cautious. He reported he finds attending to his own hygiene a “bit of a struggle”, for example, needing to sit on the floor in the shower if he needs to reach for something.
Dr Potter also reported Mr Martignago described his mood as “miserable” with an inability to be engaged and play with his children. He finds getting to sleep and staying asleep a challenge with the pain of moving. He wakes feeling sore and stiff. He finds life exhausting and needs to rest. He does no exercise and is limited in his walking. He has a good relationship with family and maintains contact with friends.
Mr Martignago said he would like to be fit and not have to rely on others.Dr Potter concluded secondary to the chronicity of the dysfunction and pain from his physical injuries Mr Martignago is now sad and cautious but did not consider he met a formal psychiatric diagnosis. Dr Potter also stated the lack of a formal diagnosis should not underestimate his physical and emotional needs and suggested he would benefit from a handful of sessions of exercise physiology complimented with reflective/analytic psychotherapeutic management.
In terms of capacity for work Dr Potter commented that Mr Martignago has returned to work as a truck driver, but he is constantly worried and cautious, and it now takes twice the time it did before the accident.
THE INJURY SUSTAINED BY THE CLAIMANT
There is no dispute that the claimant sustained a burst fracture of L3 without neurological deficit and a fracture of the left radius and ulna caused by the accident.
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 $654,000.
The claimant submits an appropriate award of damages for non-economic loss is $450,000.
The insurer submits an appropriate award of damages for non-economic loss is $200,000.
The claimant is now 42 years of age with a life expectancy of 41 years.
As a result of the injuries sustained in the accident, he has been unable to return to his pre-injury hobbies of motor bike riding, boating, camping and jet-skiing. He has been unable to return to sporting activities he enjoyed pre-injury including running or impact activities.
The claimant’s back remains stiff and sore, and he is no longer able to undertake heavy lifting or repetitive bending. He is now only able to undertake lighter work.
If there is any labour associated with a delivery it is necessary for him to be accompanied by someone able to undertake the labouring work. Whilst he continues to drive, he is slow and cautious. He can no longer undertake long haul journeys.The claimant’s father describes him as slow, and he struggles to keep up. His pain is chronic and adversely impacts his sleep. He does no exercise and his ability to walk is limited. Dr Potter reported Mr Martignago described his mood as miserable. He experiences difficulty engaging and playing with his children.
He can no longer undertake maintenance tasks on his vehicles, notwithstanding his qualifications as a diesel mechanic.
Dr McKechnie, Dr Breit and Dr New all agree there is a very real possibility he will ultimately require an extension of the lumbar fusion to the L5 level.
He continues to experience shooting pain down his left arm.
However, notwithstanding his chronic pain it is clear Mr Martignago has a stoic character. He returned to work within three months of the accident, and he has not taken medication since about four months post-accident. Notwithstanding his physical restrictions his business revenue has increased significantly. He can use a ride on mower if he paces himself.
There is no suggestion of any likely amelioration in the claimant’s chronic pain, indeed, Dr New was of the view it will become more chronic and severe.
I am of the view an appropriate award for non-economic loss is the sum of $350,000.
Past economic loss
At the time of the accident the claimant was the managing director of Steve’s Freighters Pty Ltd (Steve’s Freighters) and worked full time as a heavy truck driver. He commonly worked more than 40 hours per week. He worked on a sub-contract basis but also sourced work directly from clients.
Jasime Martignago worked in the business undertaking the book work.
The claimant’s position
The claimant relies upon reports of Mark Thompson of Vincents dated 31 May 2024 and 24 January 2025. The insurer relies upon a report of Paul Croft of Procare dated 28 October 2024.
Mr Martignago has an interest in the following entities:
Steve’s Freighters
This company was registered on 7 April 2022 and Mr Martignago is the sole director and shareholder.
This is the operating entity of the claimant’s business. As the managing director of Steve’s freighters Mr Martignago worked full time as a truck driver.
Future references to “the business” will be a reference to Steve’s Freighters.
GPS Trailer Hire Pty Ltd (GPS)
This company was registered on 1 May 2008.
Mr Martignago is an equal shareholder and director of this business with Mr Guido Martignago and Mr Peter Martignago.
Steve Freighters hires trailers from GPS at market value. Mr Martignago does not work in this entity.
Steve’s Trucking Pty Ltd (Steve’s Trucking)
This company was registered on 19 May 2011 and Mr Martignago is the sole director and shareholder.
Steve’s Trucking owns the vehicles which Steve’s Freighters hires to operate its business (the trucks driven by the claimant).
Reflector Holdings Pty Ltd
This company was registered on 19 August 2016.
Mr Martignago is the sole director and shareholder.
Reflector Holdings Pty Ltd relate to investments in rental properties, although the entity also receives dividends from the business paid from the underlying profit of the business.
This entity is unrelated to the business and Mr Martignago’s personal exertion.
The Thompson reports
Mr Martignago was responsible for the maintenance and repair of both vehicles and was required to pay for storage of the second vehicle.
The gross income of the business was impacted by the COVID-9 pandemic.
Mr Thompson says he was instructed Mr Martignago intended to work until age 70.
In relation to his return-to-work Mr Thompson says he was advised the following:
(a) in late 2021 Mr Martignago returned to work on light duties working no more than three hours a day, five days per week as a pilot vehicle driver and undertaking allocations;
(b) from late 2021 to 2023 Mr Martignago drove less compared to the
pre-accident period. The vehicle involved in the accident was written off which resulted in lower business expenses as he was not required to pay for the repair, hire, maintenance and storage of the second vehicle;(c) since May 2022 Mr Martignago has worked 35 hours per week and that is the limit of his capacity. However, Mr Thompson notes this seem to be inconsistent with the level of gross income the business has derived after 2022. Having regard to the history recorded by Dr New in his report dated 7 June 2023 Mr Thompson suggests the claimant may, in fact, be working an average of 50 hours per week. He also reported he was instructed at times Mr Martignago cannot work in a commercial capacity at all;
(d) Mr Martignago has been unable to undertake longer distance jobs and has been restricted to shorter distance jobs. Whilst less lucrative Mr Thompson notes he can undertake these jobs more frequently and the maintenance costs of the vehicles are lower;
(e) in early 2024 Mr Martignago purchased a second vehicle;
(f) Mr Martignago now pays others to fix things he would pre-accident fix himself, and
(g) due to the birth of a fourth child in 2024 Mr Martignago has continued to work at a level beyond his indicated residual capacity.
Mr Thompson states having regard to the decision in Husher v Husher[8] he has focused on the income which Mr Martignago would have expected to have had under his control and at his disposal by exercising his earning capacity, rather than the level of income he personally reported for income tax purposes.
[8] Husher v Husher (1999) 73 ALJR 1414
The claim for economic loss is made in accordance with the calculations contained in the report of Mr Thompson dated 31 May 2024. So, I propose to refer to those calculations and will only refer to the supplementary report where it is relied upon to respond to the report of Mr Croft.
Mr Thompson utilised the following table to demonstrate his assessment of the “true” net profits of the business for the financial years ended 30 June 2017 (FY 2017) to the financial year ended 30 June 2023 (FY 2023):
| Year ended | Reported Net Profit Steve’s Freighters | Reported Net Profit Steve’s Trucking | Total Reported Net Profit | “True” Net Profit |
| 30 June 2018 | $90,014 | $25,084 | $115,098 | $155,607 |
| 30 June 2019 | $144,670 | $18,378 | $163,048 | $160,513 |
| 30 June 2020 | $36,852 | $20,349 | $57,201 | $230,675 |
| 30 June 2021 | $144,763 | $16,701 | $161,464 | $102,780 |
| 30 June 2022 | ($9,182) | $53,955 | $44,773 | $42,956 |
| 30 June 2023 | $251,6111 | $55,480 | $307,091 | $438,223 |
| 30 June 2024 | $477,994 |
Mr Thompson concluded the claimant was not currently suffering any objectively identifiable economic loss where the financial results for the FY 2023 and the financial year ended 30 June 2024 (FY 2024) demonstrate net earnings exceeding the
pre-accident levels and industry standards generally.Accordingly, past economic loss was only assessed for the financial year ended
30 June 2022 (FY 2022).Mr Thompson concluded he was unable to determine the precise reduction in earnings that occurred from the date of the accident to 30 June 2022. Accordingly, he prepared his calculations based on a comparison of the following:
· but for the accident he assumed Mr Martignago would have derived earnings commensurate with the average “true” net profit of the business during the FY 2021 and the FY 2023, and
· he assumed that the “true” net profit of the business for the FY 2022 was reflective of the claimant’s “with-injury” earnings.
Mr Thompson commented that, in his opinion, it would not be commercially likely that the profits attributable to Mr Martignago would have remained consistent for the
FY 2021 and 2022 and then increased by 173% for the FY 2023. On that basis he concluded it was more appropriate to adopt an approach that allowed for an increase in earnings over time from the FY 2021 to the FY 2023.Mr Thompson excluded the FY 2017 where he had not been provided with the profit and loss statement of Steve’s Trucking. He excluded the FY 2022 on the basis it was impacted by the accident.
Mr Thompson adjusted the “true” net profit solely attributable to Mr Martignago by the relevant movements in the CPI to values as at 2022. Mr Thompson calculated the “true” net profit of the business during the FY 2021 and the FY 2023 as shown in the following table:
Year ended
“True” Net Profit
Multiply: CPI adjustment
Adjusted “True” Net Profit
30 June 2021
$102,780
1.1310
$116,244
30 June 2023
$438,223
0.9818
$430,247
Average (2022 value)
$273,246
Mr Thompson assumed Mr Martignago would have derived notional earnings of $273,000 per year before tax (net of work-related expenditure) during the FY 2022.
After deducting income tax payable of $98,977 from the notional pre-tax earnings
Mr Thompson concluded the claimant’s net notional earnings for the FY 2022 was $174,023 or $3,335.05 net per week.After deduction of the claimant’s actual earnings of $38,942, Mr Thompson calculated the past economic loss for the period 1 July 2021 to 30 June 2022 to be $135,081.
This is the claim for past economic loss made by the claimant.
Insurer’s position
The insurer notes following the accident the claimant was certified as unfit for work until 19 October 2021 when he was certified fit to work 10 hours a week with restrictions. The claimant made a gradual return to work and as of 19 May 2022 was certified fit for work for 40 hours per week with restrictions.
Mr Croft calculated the period of loss as commencing on 5 August 2021 and ending on 18 May 2022 being the date on which he was instructed Mr Martignago commenced working 40 hours per week.
Mr Croft undertook an analysis of the company’s sales and concluded that the increase in company revenue for the FY 2023 and the FY 2024:
· cannot be explained by the employment of additional employees or subcontractors and increases in the freight transport rates;
· meant it was likely the claimant worked less than an average of 35 hours per week in the pre-accident period; and
· that the claimant significantly increased his weekly hours in the post-accident period likely working close to an average of 50 hours per week.
I accept the claimant’s hours of work have varied but having regard to the evidence of the claimant I do not accept the claimant worked less than 35 hours per week
pre-accident notwithstanding the increase in company sales in the FY 2023 and the
FY 2024.Mr Croft queried why Steve’s Freighters were responsible for repairs and maintenance of the trucks where that responsibility, in the road transport freight industry, typically falls to the owner. On this basis he suggested the profit and loss statements of Steve’s Freighters do not present a true view of the company’s core freight operations where they include costs for which Steve’s Trucking is assumed responsible.
Mr Croft also queried the depreciation expenses but in the absence of relevant documents was unable to be categorical as to the adjustments made for depreciation expenses for Steve’s Trucking. However, in calculating the claimant’s earnings for the FY 2021 Mr Croft reversed an adjustment for depreciation he assumed had been made by Mr Thompson in his initial report in the sum of $49,253.
Mr Thompson did not agree with the adjustment made by Mr Croft for depreciation expenses. In his supplementary report he stated it was not necessary for Mr Croft to make a reverse adjustment of $49,253 where he (Mr Thompson) had not made any adjustment for depreciation expenses but relied on the amounts contained in the profit and loss statements which had been prepared by an external accountant. Mr Thompson asserts the treatment of depreciation expenses employed by Mr Croft results in the profitability for the FY 2020 being materially understated and the profitability for the subsequent years to be materially overstated.
Mr Croft calculated the claimant’s actual earnings by reference only to the FY 2021 and not by reference to an average of the claimant’s business performance as undertaken by Mr Thompson. His concluded an average of historical periods was not justified in this instance on the basis that:
· the period of loss is one year; and
· it is unlikely that economic conditions prevailing in the year of the accident varied significantly to the economic conditions prevailing in the year immediately prior to the accident.
Mr Croft aggregated the sales for Steve’s Freighters and Steve’s Trucking in the sum of $632,145 and after deducting expenses including the value of the Ms Martignago’s salary and an adjustment for depreciation concluded the claimant’s earnings (or the adjusted net profit) for the FY 2021 was the sum of $183,868.
Mr Croft calculated the claimant’s earning capacity (after tax) but for the accident, for the FY 2022 based on the assumed earnings for the FY 2021 as follows:
Earnings but for the accident:
Total income $183,868
Less: income tax payable ($57,085)
Income after tax $126,784
Apportioned for period 5 August 2021 to 18 May 2022 $99,690.
Mr Croft assessed the claimant’s actual earning capacity given the accident as follows:
Actual earnings in the FY 2022 :
Total income $93,875
Less: income tax payable ($21,470)
Income after tax $72,405
Apportioned for period 5 August 2021 to 18 May 2022 $56,932.
Mr Croft calculated past economic loss as follows:
Earnings but for the accident, after tax $99,690
Earnings, given the accident, after tax ($56,932)
Past economic loss $42,758.
The insurer submits that an award of damages in the sum of $42,758 is appropriate for past economic loss.
My findings
I agree with Mr Thompson that it is not appropriate to pro-rata the loss for the period
5 August 2021 to 18 May 2022 where the loss is calculated over the entire financial year.I also accept the opinion of Mr Thompson that it is not commercially likely that the profits attributable to Mr Martignago would have remained consistent for the
FY 2021 and 2022 then increased by 173% for the FY 2023.Accordingly, I propose to adopt the methodology of Mr Thompson and to adopt an average of the earnings Mr Martignago derived for the FY 2021 and 2023, that is one year prior to the year of the accident and one year after the year of the accident in calculating past economic loss for the FY 2022.
I assess damages for past economic loss in accordance with the expert opinion of
Mr Thompson in the sum of $135,081.
Past loss of superannuation benefits
A claim is made for past loss of superannuation benefits calculated at 11% of the net past wage loss.
The insurer does not make any allowance for past loss of superannuation on the basis the claimant was self-employed and there is insufficient evidence to establish an entitlement.
However, where the claimant was an employee of his company, he was entitled to the benefits of the Superannuation Guarantee (Administration) act, 1992. Furthermore, it is apparent payments were made in accordance with that legislation.
I assess damages for past loss of superannuation benefits calculated at 11% of $135,081 in the sum of $14,859.
Fox v Wood
The parties agree taxation payments deducted from weekly compensation payments totals $11,789. I assess damages accordingly.
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.
Whilst the claimant is not currently sustaining any objective loss, I am reminded that the test for future economic loss is not whether he is currently experiencing economic loss but whether his injuries may be productive of financial loss.[9]
[9] Graham v Baker [1961] HCA 48.
The claimant’s position
The claimant submits the assessment of future economic loss is difficult where the medical evidence suggests a significant incapacity but where the claimant has been working in excess of his capacity and his business has not only continued to be profitable but has outperformed its past performance.
The claimant relies upon the report of Mark Thompson of Vincents dated 31 May 2024.
He provided the following table of the claimant’s “True” net profit for the FY 2017 to 2024 adjusted by the relevant movements in the Consumer Price Index as of September 2024:
| Year Ended | “True” Net Profit | CPI Adjustment | Adjusted “True” Net Profit |
| 30 June 2017 | $74,420 | 1.3081 | $97,349 |
| 30 June 2018 | $155,607 | 1.2436 | $193,513 |
| 30 June 2019 | $160,513 | 1.2227 | $196,259 |
| 30 June 2020 | $230,675 | 1.3212 | $304,768 |
| 30 June 2021 | $102,780 | 1.1938 | $122,699 |
| 30 June 2022 | $42,956 | 1.0555 | $45,340 |
| 30 June 2023 | $438,223 | 1.0363 | $454,130 |
| 30 June 2024 | $438,223 | 1.0363 | $454,130 |
Mr Thompson calculated the average of all years excluding the 2017 and 2022 years to be the sum of $287,583. In calculating future economic loss Mr Thompson has adopted as notional earnings the sum of $287,583 per year before tax but net of any work-related expenditure.
This equates to earnings of $174,023 net per annum or $3,335.05 net per week.
Mr Thompson derived three possible outcomes. He adopted actual/likely earnings (before tax) as follows:
(a) under outcome 1, he calculated $229,600 per year before tax on the basis Mr Martignago would suffer an ongoing 20% future reduction in his working capacity. On the basis of retirement at age 70 he calculated future economic loss of $464,925;
(b) under outcome 2, he calculated $200,900 per year before tax on the basis Mr Martignago would suffer an ongoing 30% future reduction in his working capacity. On the basis of retirement at age 70 he calculated future economic loss of $697,388, and
(c) under outcome 3, he calculated $172,200 per year before tax on the basis Mr Martignago would suffer an ongoing 40% future reduction in his working capacity. On the basis of retirement at age 70 he calculated future economic loss of $951,613.
The claimant argues he has been working in excess of his capacity. It is submitted that the claimant cannot tarp a load and nor can he apply tension straps to hold down a load. The current work involving data centres and generators pays well and does not involve manual work, but it is uncertain how long this work will be available. Whilst his brother ensures the claimant is allocated the least physical jobs it is submitted it is uncertain how long this can continue.
The claimant submits based on the most recent opinion of Dr New losses of 20% to 40% capacity are probably optimistic and in excess of what the claimant will reasonably be capable of.
Accordingly, a claim is made in accordance with the calculations of Mr Thompson based on a 40% reduction in capacity until age 70 years in the sum of $951,613. I note this is a pre-tax figure.
The insurer’s position
The insurer submits where the claimant is earning more than he had prior to the accident there has been no loss of earning capacity.
The insurer relies upon the opinion of Dr Breit who concluded the claimant could continue to perform his normal hours where there was no prolonged standing, walking or negotiating stairs and where he did not have to carry more than 10kg. The insurer notes Dr Potter found no evidence of any impact to the claimant’s work capacity caused by any psychiatric injury.
The insurer relies upon the opinion of Mr Croft to assert that the claimant was working no more than 35 hours per week before the accident and may be working closer to
50 hours per week in the post-accident period.Mr Croft states he has not assessed a loss after 18 May 2022 on the basis that:
· the claimant’s actual FY23 earnings, given the accident exceed his earnings, but for the accident; and
· he did not have a basis on which to assume that the claimant will not continue to derive personal exertion income.
The insurer submits it would be appropriate to compensate the claimant by way of global allowance in the sum of $65,000 which equates to a loss of $100 net per week over a period of 26 years applying the 5% multiplier of 768.7 to accommodate any intermittent periods of incapacity for work or a diminution in future earnings.
My findings
In cases such as Medlin v State Government Insurance Commission[10]and Husher v Husher,[11] the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in earning capacity and, if so, whether that loss or diminution will result in economic loss.
[10] Medlin v State Government Insurance Commission (1995) 185 CLR.
[11] Husher v Husher (1999) 197 CLR 138.
In NSW v Moss[12] at [87] Heydon JA stated:
“In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.”
[12] NSW v Moss [2000] NSWCA 133.
Further, in Penrith City Council v Parks[13] the Court of Appeal concluded it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine.
[13] Penrith City Council v Parks [2004] NSWCA 201.
I am satisfied that the injury sustained by the claimant has resulted in an impairment of his earning capacity, notwithstanding the claimant is not currently sustaining any loss of earnings.
Mr Martignago sustained an L3 burst fracture which was surgically addressed by an urgent laminectomy with a L2, L3 and L4 pedicle screw and posterolateral fusion.
Dr McKechnie the treating surgeon concluded extension of the fusion to the L5 level was a possibility. Dr New reported the long-term prognosis for that type of fracture was poor and agreed the claimant may require further surgery to extend the fusion to L5. Whilst the prognosis of Dr Breit in terms of the claimant’s capacity to maintain his current employment was more optimistic, he concluded there was a high probability the fusion will need to be extended.Dr New stated the natural history of the condition was that the claimant’s back pain will become more chronic and severe. Indeed, he considered the claimant will struggle to work over the age of 50 in his current capacity. Dr Breit considered Mr Martignago could undertake normal hours where there was no prolonged standing, walking, negotiating stairs or carrying weights over 10kg. However, Dr Breit also noted the claimant’s back was stiff and sore and he could only walk for about 20 minutes or sit for one to two hours.
Whilst Dr Potter found no psychiatric diagnosis, he considered Mr Martignago was sad and cautious due to the chronicity of the dysfunction and pain from his physical injuries.
The claimant is only 42 years of age with a working life of 25 years. Mr Martignago described the pressure he felt to keep working to provide for his growing family. However, he described constant pain. He has an inability to drive long distances and finds it necessary to stop frequently and stretch. According to Dr Potter his father described him as ‘slow” as he struggles to keep up.
The claimant’s brother David Martignago indicated the claimant can now only do light jobs, and if labour is required, he sends someone else on the jobs. He indicated if there is no light work, the claimant cannot work.
In addition, Mr Martignago has ongoing pain and restriction of movement in his left arm which also impacts his ability to undertake manual tasks. He reported low energy levels and disturbed sleep.
Mr Martignago has taken steps to mitigate his damages by undertaking treatment and by not only maintaining employment, albeit subject to restrictions, but by working in excess of the hours recommended by his treating doctor where necessary. His business has grown significantly since the accident. Mr Thompson considers uninjured Mr Martignago would have derived personal exertion income of $287,000 gross per annum (net of any work-related expenses) although Mr Croft arrives at a lesser figure of $183,868.
There is no evidence to suggest that there is likely to be any change in the claimant’s earning capacity in the foreseeable future. Thereafter, it is less clear. It is unclear how long Mr Martignago will be able to continue working as a truck driver, noting that his continued employment in that role is dependent on the availability of light duty work. However, having regard to the likely deterioration in his condition as evidenced by
Dr New and the likelihood the fusion will require extension, I am satisfied the claimant will not be able to maintain his current employment until retirement age.Whilst I note it has been alleged the claimant intended to work until age 70 there is no evidence before me to suggest the likelihood of that occurring and I propose to accept retirement at the statutory age of 67 years.
However, Mr Martignago’s income is sourced not only from truck driving with Steve’s Freighters but also from the hire of trucks through Steve’s Trucking. Where I am satisfied on the evidence Mr Martignago will not be able to maintain employment as a truck driver until age 67 years it is uncertain whether Steve’s Trucking will also continue where the business model for Steve’s Trucking is the hire of trucks to Steve’s Freighters.
Whilst I am satisfied the injury sustained by the claimant will have an impact upon his earning capacity it is difficult to determine when that will occur. I do not consider it appropriate to take the approach proposed by the claimant on the basis the claimant has sustained a percentage reduction in capacity where there is currently no impairment of his earning capacity.
In line with authority in cases such as Parks[14], Allianz Australia Limited v Kerr[15], Allianz Australia Insurance Ltd v Cervantes[16] and AAI Limited v Chan[17] I consider it appropriate to assess damages for the future impairment of the claimant’s earning loss by way of buffer.
[14] Penrith City Council v Parks [2004] NSWCA 201.
[15] Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.
[16] Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244.
[17] AAI Limited (trading as AAMI Limited) v Chan [2024] NSWSC 329 .
As was said in State of New South Wales v Moss [2000] NSWCA 133 at [71] the estimation of future economic loss is an imprecise exercise:
“It is an exercise in estimation of possibilities, not proof of probabilities.”
I propose to award a significant buffer having regard to the following matters:
(a) Mr Martignago is only 42 years of age with a future working life of 25 years;
(b) Mr Martignago will be unable to maintain his current employment as a truck driver until age 67 years;
(c) Mr Martignago’s continued work as a truck driver is predicated on the availability of light work and it is uncertain how long the light work will be available;
(d) the allocation of light work to Ms Martignago is uncertain where it is dependent upon the continuation of the arrangement between the claimant and his brother;
(e) Dr New’s opinion that the claimant will struggle to work past age 50 in his current capacity;
(f) Mr Martignago is unfit to drive long haul truck routes and he cannot drive a load where he is required to use a tarp, lift chains or undertake physical labour;
(g) Mr Martignago is unfit for anything other than light work, having regard to the evidence of Dr Breit that he was only fit to perform his normal hours where there was no prolonged standing, walking or negotiating stairs and where he did not have to carry more than 10kg;
(h) Mr Martignago’s back pain is chronic and he also has pain and restriction in his left arm;
(i) it is likely Mr Martignago’s condition will deteriorate over time and he will require an extension of the spinal fusion;
(j) whilst Mr Martignago is currently working beyond his certified capacity given the imperative to provide for his growing family it is unlikely he will be able to continue to work in his current role or at his current pace;
(k) whilst Mr Martignago may opt for alternative employment, he has no training or experience other than as a diesel mechanic or truck driver;
(l) Mr Martignago has demonstrated a substantial earning capacity which has been dependent upon his personal exertions;
(m) Mr Martignago is a significant earner, and based on the FY 2023 figures has the capacity to earn either $287,000 gross per annum based on the opinion of Mr Thompson or the sum of $183,868 gross per annum based on the opinion of Mr Croft, and
(n) whilst Mr Martignago continues to maintain his current employment as a truck driver, it is likely his earnings will increase having regard to the historical performance of his business and where both Mr Thompson and Mr Croft noted a significant increase in business sales for the FY 2024.
I consider an appropriate buffer for the impairment of Mr Martignago’s earning capacity to be the sum of $500,000 inclusive of loss of superannuation benefits.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the findings set out above:
Non-economic loss $350,000
Past loss of earnings $135,081
Fox v Wood $11,789
Past loss of superannuation $14,859
Future loss of earnings 500,000
TOTAL DAMAGES ASSESSED $1,011,729
COSTS AND DISBURSEMENTS
I refer to the claimant’s schedule of costs and disbursements. There was no dispute raised by the insurer.
Accordingly, I assess the claimant’s costs and disbursements in accordance with the attached Damages and Costs Calculator in the sum of $88,216.88.
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