Mathews v QBE Insurance (Australia) Limited
[2022] NSWPIC 226
•11 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Mathews v QBE Insurance (Australia) Limited [2022] NSWPIC 226 |
| Claimant: | Bill Mathews |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Gary Victor Patterson |
| DATE OF DECISION: | 11 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Assessment of Claim for Damages under Motor Accidents Injuries Act 2017 (MAI Act); self-represented Claimant; liability wholly admitted; litigation of loss; non-economic loss; past loss of earnings; future loss of earning capacity; Held- the amount of damages assessed in respect of this claim is $959,484.75; the Claimant’s economic loss is reduced by, and the Insurer is to have credit for, the sum of $233,780.84 in accordance with s 4.10 of the MAI Act; the amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accident Injuries Regulation 2017 is $57,151.60 inclusive of GST. |
| determinations made: | The findings of this assessment are as follows: 1. The amount of damages assessed in respect of this claim is $959,484.75. 2. The Claimant’s economic loss is reduced by, and the Insurer is to have credit for, the sum of $233,780.84 in accordance with s 4.10 of the 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 Motor Accident Injuries Regulation 2017 is $57,151.60 inclusive of GST. |
Reasons for Decision – General Assessment
Common law damages claim - Motor Accident Injuries Act 2017 (“the Act”)
Introduction
Mr Mathews is self-represented. He previously was represented by Gerard Malouf & Partners who prepared the claim for assessment.
At the commencement of the assessment conference, I was informed that Mr Mathews would not participate, as he was attending a funeral. No prior notice was given. No request for a postponement was made. Mr Deans said that the insurer wanted the commencement to proceed on the papers. I agreed to adopt that course, subject to the parties’ having the opportunity to make further submissions, in response to my draft Certificate and Reasons.
Mr Mathews did not comply with my direction, made on 16 February last, for the provision of updated material. I have considered the Insurer’s Further Submissions in Reply dated 27 April 2022 and the material uploaded with those further submissions.
The subject motor accident occurred on 19 November 2018 about 8:00 pm. Mr Mathews was riding a motorcycle on his way home from work. He was passing through the intersection of Linden and Leonay Streets at Sutherland which was controlled by traffic lights. Conditions were dry and fine. As he moved off with the green light, he was T-boned on his right side by the insured Mitsubishi Triton utility, which failed to obey a red traffic light. Mr Mathews was wearing a helmet and appropriate protective clothing.
As a result of the impact, Mr Mathews sustained fractures of both femurs, a compound fracture of his right tibia and fibula, some fractured ribs, an injury to his neck, injury to his back and left shoulder.
He was airlifted to St George Hospital where he was admitted and remained as an inpatient for a period of about one month. He underwent open reduction and internal fixation of the left and right femur and right fibula and tibia. He was then transferred to a rehabilitation hospital for a further two months.
The insured driver was convicted of negligent driving occasioning grievous bodily harm. The insurer wholly admitted liability for the claim.
Mr Mathews was born in New Zealand and attended school up to the age of 15 years. He is 57 years of age. After leaving school, he worked as a farm labourer for 5 years. He worked in forestry for 8 years. He did ware-housing for 12 years. He has been a truck driver ever since. He is right hand dominant. He is a Type 2 Diabetic and has hypertension.
Mr Mathews migrated to Australia in 2008 and is a permanent resident. He is married with five adult children. He lives with his wife in a two-bedroom rental unit. They have no dependants. Mr Mathews has not returned to work since the motor accident. Mr Mathews has been receiving statutory benefits under Part 3 of the Act. That will cease upon the finalisation of this claim.
AGREED MATTERS
I required the parties to complete jointly an Agreed Matters Checklist which was to be submitted before the commencement of the assessment reference. What appears below was prepared by the insurer’s solicitors. It was submitted to Mr Mathews for his consideration. I am informed by Mr Deans that Mr Mathews has not responded.
I note that none of the above matters are agreed. However, I regard them as being fairly indicative.
ISSUES IN DISPUTE
The following issues arise for my determination in this matter:
·The medical and psychological consequences of the accident / ISSUE 1
·Amount of non-economic loss / ISSUE 2
·Whether Mr Mathews has failed to mitigate his loss / ISSUE 3
·Amount of past economic loss / ISSUE 4
·Amount of future economic loss / ISSUE 5
DETERMINATION OF ISSUE 1 – THE MEDICAL AND PSCHOLOGICAL CONSEQUENCES OF THE MOTOR ACCIDENT
An assessment of the claim requires, amongst other things, a consideration of the medical evidence.
There is a Certificated dated 10 February 2021 by Medical Assessor Dr David Gorman. Medical Assessor Gorman found that the following injuries were caused by the motor accident:
·Leg – broken femur.
·Leg – broken right femur.
·Leg – compound fracture of right tibia and fibula.
·Cervical spine – displaced fracture through the anterior osteo bridge between C2/C3.
·Ribs – right third rib fracture.
·Lumber spine – right traverse process L2 fracture.
·Shoulder – torn supraspinatus in left shoulder.
·Face – nasal and chin abrasions.
·Scarring on the right and left lower limbs
Medical Assessor Gorman found 26% whole person impairment for physical injuries without deductions. He also assessed 2% whole person impairment for scarring on the right lower limb, using the TEMSI scale, but did not include that in his overall assessment.
There is a report dated 15 December 2020 by Dr John Bentivoglio, Orthopaedic Surgeon, to the insurer’s solicitors. Dr Bentivoglio makes almost identical findings to Medical Assessor Gorman. He assesses 28% whole person impairment including 3% for scarring of the right shin.
There is a report dated 10 December 2020 by Dr Andrew Keller, Occupational Physician, to the insurer’s lawyers (R25). Dr Keller conducted an in-person physical assessment. Dr Keller assesses 15% whole person impairment. His assessments of the neck and right lower extremity differ markedly to those of Medical Assessor Gorman and Dr Bentivoglio. I prefer the latter. Dr Keller finds no prospect for full recovery.
There is a report dated 2 June 2020 by Dr Evan Dryson, Occupational Physician, to Mr Mathews’ then lawyers. Dr Dryson assessed Mr Mathews remotely. He found 20% whole person impairment. His finding in relation to the right leg is much less than those made by Medical Assessor Gorman and Dr Bentivoglio. Dr Dryson took no account of the cervical spine. Dr Dryson opines that Mr Mathews may be able to undertake sedentary part-time work. However, Dr Dryson does not believe that Mr Mathews has any practical ability to obtain work on the open labour market.
There is a report dated 6 December 2020 by Dr Tai Tak Wan, Consultant Physician in Rehabilitation and Pain, which was prepared for the parties jointly (R24). Dr Wan details Mr Mathews’ current symptoms, past health, social history and current treatment. Dr Wan conducted a physical examination and reviewed the multiple reports of diagnostic investigations. Dr Wan reviewed material from the hospitals and treatment providers as well as various reports from Benchmark Rehabilitation. The only medico-legal report provided to Dr Wan was the report dated 2 June 2020 by Dr Dryson.
Under the heading OPINION, Dr Wan lists Mr Mathews’ multiple injuries as following:
·Fractured left and right femurs.
·Fractured right tibia and fibula.
·Probable displaced fracture of anterior osteophyte bridge between CT/3.
·Right fracture third rib.
·Rotator-cuff tear and subacromial bursitis of left shoulder.
·Fractured right transverse process of L2 (lumber spine).
·Facial abrasions.
Dr Wan records that Mr Mathews also suffered psychological injury.
Dr Wan notes that Mr Mathews underwent open reduction and internal fixation for the fractured femurs, right tibia and fibula. He records that those fractures were the main issues facing Mr Mathews post-accident.
Under the heading TREATMENT RECOMMENDATIONS, Dr Wan lists the following:
·Referral to a Rehabilitation/Pain Medicine Physician.
·An intensive multi-disciplinary pain management program.
·Reduced use of long-term opiates.
·Alternative use of non-steroidal anti-inflammatory medication.
Dr Wan thinks it is likely that Mr Mathews will have further improvement in his neck and back symptoms if he is given the recommended treatment, but this is not guaranteed.
Dr Wan states that Mr Mathews could not return to work because of multiple fractures and restrictions in activities. Dr Wan opines that Mr Mathews may be able to return to lighter alternative duties, with proper vocational rehabilitation and pain management.
Dr Wan assesses 19% whole person impairment arising from injury to the lumbar spine (5%), right lower limb (8%), left shoulder (5%) and scarring (2%).
There is a report dated 11 June 2020 by Dr Thomas Oldtree Clark, Consultant Forensic Psychiatrist) to Gerard Malouf & Partners who were then acting for Mr Mathews.
Under the heading PSCYHIATRIC HISTORY, Dr Clark records as follows:
He has not seen a psychiatrist. He has preferred the physical rehabilitation program. He sees his GP who prescribes his anti-depressants and sedatives.
Under the heading OPINION, Dr Clark says that Mr Mathews is suffering from a post-traumatic stress disorder. He sets out at length the relevant criteria that caused him to make that diagnosis. Without listing all those criteria, they include the following:
·Persistent negative emotional state.
·Markedly diminished interest or participation in significant activities.
·Feelings of detachment or estrangement from others.
·Irritable behaviour and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
·Hypervigilance.
·Exaggerated startle response.
·Problems with concentration.
·Sleep disturbance.
Dr Clark says that Mr Mathews’ condition is stable. He assesses 22% whole person impairment using the Psychiatric Impairment Rating Scale (PIRS). He adjusts that upwards to 23% to allow for treatment effects.
I do not refer to reports from the treating medical experts as that material does not add to the overall picture. I note especially the material from Dr Hugh Jones, Orthopaedic Surgeon, and Dr Rattehalli, Consultant Psychiatrist. The insurer has not provided a report from a Consultant Psychiatrist to challenge Dr Clark’s findings.
In its Further Submissions in Reply, the insurer reviews the radiological evidence. It notes the references to old post-traumatic deformity with ossification, old mid-shaft fractures and upper shaft fractures of the tibia and fibula.
The insurer submits that causation is in issue regarding the applicant’s lower limb injuries and should be taken to account when assessing the claim.
I infer that the nub of the insurer’s submission is that Mr Mathews has failed to prove that all the old-post traumatic deformities and fractures, shown in the radiological investigations, are referrable to the motor accident.
All of the reporting medical experts agree that Mr Mathews suffered injuries to both lower limbs in the motor accident. Assessments of impairment vary, as I have stated in paragraphs 15 and 16 of these Reasons.
I note that Mr Mathews has a history of surgical repair to the left knee anterior cruciate ligament. Mr Mathews said that injury occurred when he was playing Rugby at school. He told Dr Wan that it did not affect his ability to work as a heavy vehicle (truck) driver. I accept that evidence.
That being acknowledged, there is no basis in the evidence to support the insurer’s submission on causation, regarding Mr Mathews’ lower limb injuries. The fact that Mr Mathews suffered a previous injury to his left knee did not affect the assessment of permanent impairment.
I have taken the previous injury into account when assessing the claim.
DETERMINATION OF ISSUE 2 – AMOUNT OF NON-ECONOMIC LOSS
Mr Mathews is entitled to an award of damages for non-economic loss. The maximum amount of damages for non-economic loss currently is $595,000.00 as indexed. Section 1.4 of the Act defines non-economic loss as meaning:
·Pain and suffering; and
·Loss of amenities of life; and
·Loss of expectation of life; and
·Disfigurement.
Mr Mathews has a medium life expectancy of almost 29 years. There is no medical evidence that his life expectancy has been reduced by reason of the motor accident. There is scarring to his right leg to which I have referred.
As to (a) and (b), Mr Mathews has provided a written statement dated 20 February 2020 (A6). He lists the multiple disabilities which have arisen from injuries sustained in the motor accident. He walks with a marked antalgic gait favouring the right leg. He uses a walking stick and has difficulty going up and down stairs. At paragraph 16 of his statement, under the heading EFFECTS OF THE ACCIDENT, Mr Mathews says that he has been impacted on both an emotional and physical level, which I accept. By way of example, he refers only to inability to maintain the same level of intimacy with his wife as before the motor accident. I take it that Mr Mathews is a Kiwi stoic.
Mr Mathew was on crutches for about 7 months after being discharged from hospital. He then commenced to use a walking stick. He now utilises a wheelie walker or walking aid.
Dr Bentivoglio notes that Mr Mathews is most troubled by his right shin. Pain is present from the right knee to the ankle. His symptoms worsen with weight-bearing. He has decreased movement both in his right knee as well as his right ankle. He notices crepitation present on moving his knees and ankles.
Dr Bentivoglio records that Mr Mathews experiences neck pain approximately 50% of the time. He feels he has regained full movement in the neck with no crepitation. He has pain present over the point of his left shoulder approximately 75% of the time. It is particularly noticeable with movement. Mr Mathews notices some crepitation present on moving his left shoulder, generally worsening his shoulder symptoms. He has low back pain 75% of the time radiating down his right lower limb to the knee region. Walking makes his symptoms worse after about 30 minutes. Sitting and standing cause him an equal amount of discomfort. He has bladder sensation. He does not feel there has been any improvement in his back symptoms.
Dr Clark records that Mr Mathews has moderate impairment under the PIRS descriptors of self-care and personal hygiene, social and recreational activities, travel, concentration persistence and pace. He has mild impairment under the descriptor social functioning (relationships) and severe impairment under the descriptor employability. Dr Clark records that Mr Mathews is moody and irritable, suffering pain, anxiety and depression. Dr Clark expects that Mr Mathews would require treatment for up to 4 years. He found no evidence of a pre-existing psychiatric condition.
Dr Bentivoglio notes that Mr Mathews has had multiple surgical procedures. He has had ultrasound-guided cortisone injection into his shoulder with no improvement. Dr Bentivoglio says that the prognosis for the neck and back remain guarded. The prognosis for the left shoulder is guarded to poor.
Medical Assessor Gorman describes a large area of tender, hypopigmented scarring over the anterior right lower limb, below the knee, at the site of the debridement from the compound fracture of the right leg. The outline of the scarring is irregular up to 10 centimetres in diameter. It is slightly depressed.
Dr Dryson opines that Mr Mathews may require a total right knee joint replacement if he develops significant osteoarthrosis. Mr Mathews has undergone removal of the right tibia screws and plate. He is yet to undergo removal of hardware from the right knee.
Having reviewed all of the evidence, I am satisfied that the motor accident has caused significant physical and psychiatric injuries, with consequential whole person impairment, from which Mr Mathews will suffer for the remainder of his life.
It was submitted by Mr Mathews then lawyers that $300,000.00 would be an appropriate award for non-economic loss. The insurer’s lawyers contend for $190,000.00 to $210,000.00.
I am satisfied that the motor accident has had a significant impact on Mr Mathews quality of life in many ways and will continue to do so. I accept Dr Wan’s opinion that the injuries sustained in the motor accident have significantly affected Mr Mathews’ work, social and family life. I have had regard to his age and the negative effect that Mr Mathews’ impairments have had on his ability to enjoy his usual activities. I have had regard to the amounts allowed for non-economic loss in other cases involving similar degrees of whole person impairments. I have taken into account Mr Mathews previous left knee injury on the basis that the tortfeasor must take the victim as he is found. I have had regard to the amounts for which each party contends.
Having considered the evidence and the parties’ submissions, I allow $285,000.00 for non-economic loss.
DETERMINATION OF ISSUE 3 – MITIGATION
In its Further Submissions in Reply, the insurer raised the issue of mitigation of loss. That was at a time when Mr Mathews was self-represented. His former solicitors did not address that issue in their submissions.
The insurer relies upon the evidence of the Benchmark Rehabilitation Transferrable Skills Assessment Report (R20), Dr Dryson (R22) and Dr Keller (R25), in submitting that Mr Mathews has a restricted capacity to engage in part-time sedentary work which he has not utilised.
The insurer notes that Mr Mathews has made no attempt to obtain suitable work. On that basis, it submits that he has failed to mitigate his loss, in breach of his duty under section 4.15(1) of the Act.
The insurer points to the conjunctive test prescribed by sub-section 2 of that section which requires me to consider the steps taken by Mr Mathews to mitigate his damages and the reasonable steps that could have been taken by him to mitigate his loss.
The insurer relies upon the decision in Georges v Soutter [2016] NSWDC wherein Judge Elkaim found that the Plaintiff failed to mitigate his loss where he made no job applications and was unmotivated to seek employment. The insurer submits that the circumstances of that case are similar to the present.
The insurer distinguishes Mr Mathews’ case from Nuhic v Orahim [2011] NSWDC 200 where the Plaintiff applied for work despite being in debilitating pain.
The insurer properly directed me to the decision in Mead v Kerney [2012] NSWCA 215 which found that, notwithstanding the Plaintiff has a theoretical earning capacity, the Defendant must prove that real jobs exists, such as are suitable to the Plaintiff’s circumstances, in an accessible labour market.
Mr Mathews participated in the insurer’s Rehabilitation Transferrable Skills Assessment which identified a number of occupations that could be suitable for Mr Mathews. I must consider whether it relevantly was reasonable for Mr Mathews not to have made any job applications, in those identified occupations, or any others.
I note that the insurer’s Dr Bentivoglio assessed 28% whole person impairment arising from physical injuries. Dr Clark assessed 22% whole person impairment arising from psychiatric conditions. The insurer did not controvert Dr Clark’s evidence.
The insurer relies upon Dr Dryson who does not believe that Mr Mathews has any practical ability to obtain work on the open labour market.
Having considered the evidence, I am not satisfied that Mr Mathews has failed to mitigate his loss. Given his age, his multiple disability and considerable impairments, I think it likely that any job applications would be futile. I agree with Dr Dryson’s opinion. I think this case falls squarely within the rationale of Mead v Kerney above.
DETERMINATION OF ISSUE 4 – AMOUNT OF PAST ECONOMIC LOSS
Past economic loss is claimed on the basis of total incapacity for work from the date of the motor accident to the date of assessment. It is submitted for Mr Mathews that he was earning around $1,400.00 net per week at the time of the motor accident. The claim for past economic loss is calculated as follows:
$1,400.00 x 181 weeks = $253,400.00
A claim is made for past superannuation benefits. That is an additional $27,874.00 at 11% of the net loss.
Noting that Mr Mathews has not returned to any form of work since the motor accident, the insurer submits that he has not taken steps to mitigate his loss, by pursuing alternative employment opportunities. The insurer submits that, from December 2020, Mr Mathews entitlements in relation to past economic loss are confined to a closed period of partial loss of capacity. The insurer submits that an appropriate award is calculated as follows:
·Income replacement payments made by QBE $230,431.95
·Fox v Wood $28,370.00
·Common Law gap $10,00.00
Total $268,801.95
The insurer makes no provision for past superannuation.
An examination of Mr Mathews’ Income Tax Returns and Assessment Notices for the years 2014 to 2019 inclusive (AD1 and AD2) reveals that his net annual and weekly income in those years were as follows:
Year
Annual Amount
Weekly Amount
2019
$52,863.25
$1,016.60
2018
$62,821.17
$1,208.10
2017
$62,647.70
$1,204.76
2016
$60,218.96
$1,158.06
2015
$76,153.63
$1,464.49
2014
$73,491.50
$1,413.30
Those figures are net of tax and Medicare levy. No Income Tax Returns nor Assessment Notices for 2020 and 2021 have been provided.
Based upon the above data, it seems to me that past economic loss should be allowed in the sum of $1,225.00 per week. That allows for some increments since the date of the motor accident. I note there has not been no significant increase in male full-time wages since that date. The evidence does not support the claimed rate of $1,400.00 net per week.
The calculation is made as follows:
$1,225.00 net per week x 181 weeks = $221,725.00
I allow $24,389.75 for past superannuation at 11% of the net loss. I also allow $28,370.00 for the Fox v Wood component specified by the insurer. The total I have awarded for past economic loss is similar to that allowed by the insurer.
DETERMINATION OF ISSUE 5 – AMOUNT OF FUTURE ECONOMIC LOSS
Future economic loss is claimed on the basis of total incapacity until Mr Mathews’ retirement at 70 years. Mr Mathews says that his most likely future course, but for the motor accident, is that he would have continued working as a Truck Driver, on a full-time unrestricted basis, until retirement. Having regard to his excellent pre-accident work history, I accept that submission.
Future economic loss is claimed at $1,400.00 net per week until retirement as follows:
$1,400.00 net per week x 502.3 (5% multiplier for 13 years) x 85% = $597,737.00
Additionally, future superannuation benefits are claimed at 12.5% of the net loss ($74,717.25).
In the alternative, a claim is made in the form of a buffer, which I understand to be inclusive of superannuation. No figure has been specified for a buffer.
The insurer submits that future economic loss should not be allowed beyond 67 years which is the statutory retirement age. There is force in that submission. The insurer specified 67 years in the Agreed Matters Checklist to which Mr Mathews did not respond. As I said I would regard that data as indicative, I accept the insurer’s submission.
The insurer submits that, based upon the expert medical evidence, Mr Mathews has capacity to return to work on reduced hours and lighter duties. It concedes that his residual earning capacity remains uncertain. The insurer notes that Dr Dryson considers Mr Mathews has a residual capacity up to 10 hours per week and that Dr Keller considers it is up to 20 hours per week.
Adopting those estimates as a base line, the insurer allows a net loss of $500.00 per week for the next 10 years. The insurer’s calculation is as follows:
$500.00 x 413 (5% multiplier for 10 years) x 85% = $175,525.00
The insurer allows $194,832.75 for superannuation at 11% of the net loss. That must be a typographical error, as the correct figure is $19,307.75, on my calculation.
The insurer allows an additional buffer to reflect uncertainty regarding Mr Mathews’ future employment prospects. It quantifies that buffer as $20,000.00 inclusive of superannuation.
On those bases, the insurer submits that an appropriate award is in the range of $194,832.75 to $214,832.75, inclusive of superannuation.
In its Further Submissions in Reply, the insurer says that Mr Mathews makes a claim for Fox v Wood entitlements in relation to future economic loss. That does not seem to me to be the case. In any event, as statutory benefits will cease, there is no scope for an award of future Fox v Wood benefits.
The insurer repeats and relies upon its submissions above regarding Mr Mathews’ duty to mitigate his damages. That is not controversial. The question is the extent to which he is reasonably able to do so.
There is a Transferrable Skills Assessment Report dated 13 May 2020 by Lauanna Miranda Branco, Rehabilitation Counsellor, which is not addressed to either party (R20). Ms Branco identifies the following Vocational Options as suitable for Mr Mathews to pursue:
·Warehouse Administrator/Stock Clerk
·Carpark Attendant
·Radio Dispatcher
·Truck Driver (Long Term Goal)
Ms Branco records that Mr Mathews reported basic computer skills and advised he has used Microsoft Word and completed invoicing over the course of his employment history. Mr Mathews reported average language and literacy skills in English and Maori. He has undertaken some management duties whilst working as a store person in the past.
Under the heading BARRIERS TO RETURN TO WORK/RECOVERY, Ms Branco lists numerous factors which militate against Mr Mathews’ ability to return to work. Ms Branco does not refer to the fact that all of the Occupational and Rehabilitation Physicians agree that Mr Mathews is limited to part-time sedentary employment. I do not think that Ms Branco’s stated long-term goal of a return to truck driving is realistic.
Having considered all of the evidence, I am satisfied on the balance of probability, that:
·at the time of the motor accident, Mr Mathews had an unrestricted earning capacity; and
·his earning capacity is reduced by reason of the injuries and permanent impairments caused by the motor accident; and
·that reduction in earning capacity is likely to be productive of future economic loss.
I am mindful of what has been said in the Court of Appeal about the desirability of adopting an arithmetical approach, instead of a buffer, in the calculation of future economic loss. See Allianz Australia Insurance Ltd v Cervantes p2012] NSWCA 244, Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 81 and Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579. In the circumstances of this case, Mr Mathews contends for a precise calculation, or a buffer, in the alternative, whereas the insurer contends for a mathematical calculation.
If I were to make a mathematical calculation, I could adopt the figure of $950.00 net per week, which is the average of the amounts for which the parties each contend. I adopt an average because the evidence does not enable me to be more precise in estimating Mr Mathews’ residual earning capacity. The calculation would be as follows:
$950.00 net per week x 413.3 (5% multiplier for 10 years) x 85% = $333,497.50
Superannuation would be allowed at 11.75% of the net award. That would be an additional $39,186.00 (rounded up).
Having given the matter considerable consideration, I think that such an award would under- compensate Mr Mathews, whom I doubt ever will return to paid employment. His physical and psychological impairments place him at considerable disadvantage in the open labour market. I think it is highly unlikely that a man of his age, with his impairments, is employable, in any real sense. That accords with Dr Dryson’s opinion. Nevertheless, I allow for the fact that there is expert medical opinion that Mr Mathews could perform some part-time work. That is, I accept that he may have some residual earning capacity.
Given the exigencies and uncertainties in the evidence, I think that it is appropriate to compensate future economic loss as a buffer. I allow $400,000.00, inclusive of superannuation.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the above findings:
Non-economic loss $285,000.00 Past economic loss $221,725.00 Past superannuation $24,389.75 Fox v Wood $28,370.00 Future economic loss $400,000.00 TOTAL DAMAGES ASSESSED $959,484.75
Mr Mathews’ economic losses are to be reduced by and the Insurer is to have credit for $233,780.84 being payments made pursuant to Part 3 of the Act.
Part 3 payments $233,780.84
COSTS AND DISBURSEMENTS
I assess Mr Mathews’ legal costs and disbursements in accordance with the attached sheet.
Gary Victor Patterson
General Member
Motor Accidents Division
Personal Injury Commission
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