North v AAI Limited t/as GIO
[2023] NSWPIC 250
•15 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | North v AAI Limited t/as GIO [2023] NSWPIC 250 |
| CLAIMANT: | James North |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 15 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages; significant motor accident on M1 Freeway when a vehicle left the road colliding with two pylons; claim for non-economic loss, past and future economic loss; injuries include soft tissue injuries to the cervical spine and right shoulder; physical injuries have mainly resolved; main ongoing issue relates to a psychological injury with medical evidence suggesting same giving rise to an ongoing incapacity for work; claimant a male born in 1993 and working in the field of childhood education; has not worked since the accident; issues of credit raised; Held – that the claimant was an honest witness from observations during the assessment conference and as found by the preponderance of medical experts; non-economic loss assessed at $275,000; past economic loss awarded on basis of a full incapacity; future economic loss awarded on the basis of full incapacity for two years, thereafter at 50% for 5 years and thereafter 20% until retirement age; total damages awarded of $887,118.03 plus costs of $63,966.76. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. The amount of damages for the claim is $887,118.29. 2. The amount of the claimant’s costs in the matter is $63,966.76 inclusive of GST. 3. The insurer to have credit for payments of weekly statutory benefits made pursuant to Division 3.3 of the Motor Accident Injuries Act2017. |
STATEMENT OF REASONS
INTRODUCTION
Mr James North (the claimant) brings a claim for common law damages for injuries, loss and damage suffered as a result of a motor accident occurring on 29 December 2019.
The claimant was asleep in the front passenger seat of a vehicle being driven by his partner. The couple were travelling home to Sydney from visiting family in Coffs Harbour for Christmas. When on the M1 freeway, near Port Macquarie, the claimant’s partner took evasive action to avoid a collision with a kangaroo that had ventured onto the freeway. Unfortunately, as a result of the evasive action, the vehicle left the road and a collision occurred with two pylons on the side of the roadway.
The claimant has been, and seemingly remains, in receipt of statutory benefits from the insurer of the vehicle, AAI Limited t/as GIO (the insurer).
Liability for the subject claim for common law damages has been accepted by the insurer. The issue for determination is the assessment of the claimant’s entitlement to damages. The claim includes damages for non-economic loss and past and future economic loss.
An assessment conference took place via Microsoft Teams on 19 April 2023. The claimant attended and gave evidence under questioning from both his counsel and counsel for the insurer. No other persons gave evidence.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply and any further information provided by the parties. It is to be noted that the index to the claimant’s bundle of documents marked AD7 in the Commission’s portal lists an “offer of compromise” from the insurer. I have not viewed such document. Instead whilst preparing this decision I caused for the Commission staff to arrange for a new bundle to be uploaded that redacted the content of the insurer’s apparent offer of settlement. The new bundle of the claimant’s document is marked AD8 in the portal.
BACKGROUND AND CLAIMANT’S EVIDENCE
The claimant is a 29-year-old man (born in 1993) who appears to have enjoyed a reasonably normal childhood, however, suffered an apparent undetected learning disability. Despite such background, the claimant has pursued a variety of vocational paths, eventually settling on the field of childhood education.
In his statement of 1 August 2022, the claimant explains that he struggled with reading at school, but was not diagnosed. He left school in year 11 in 2011 and later underwent a reading program at Macquarie University to help with tertiary studies.
The claimant’s working history is varied, yet consistent in that he appears to have always held employment or been studying up until the accident. In his youth he worked for McDonalds, working initially part time and later full time.
Thereafter he commenced an electrical apprenticeship, however, this was not completed. This was followed by the completion of a certificate IV in marketing at TAFE. Various other roles were filled by the claimant including working at the Waldorf Hotel.
The claimant’s career in education commenced with employment as a learning support officer at Rydalmere East Public School from January 2014 to November 2015. In 2015 the claimant commenced a Bachelor of Education (Primary) with the Australian Catholic University. The claimant appears to also have been employed with Helping Hands Network during this period as Regional Operations Co-ordinator.
From June 2015 to November 2019, the claimant was employed by Junior Adventures Group as a Childcare Services Co-Ordinator. The claimant states that he was required to lead a team of staff and manage the daily operations of a childcare service with 150 children.
The claimant commenced employment with Kip McGrath Education Centres on 14 November 2019 in a full-time capacity as a Centre Manager. He states that he was responsible for managing teachers; developing and maintaining training modules; conducting tutoring sessions; and reviewing the Centre’s policies and procedures.
Assisting children with behavioural or learning difficulties is said to be the claimant’s passion. When giving evidence at the assessment conference, the claimant left me in no doubt that he saw his future working career being centred around the education of children. The claimant states that his goal was to become a primary school teacher.
Ms Allan, the insurer’s counsel, questioned the claimant on his future goals noting that he had reported to medical practitioners that he had trialled teaching, but felt that he could make a difference outside of the classroom. The claimant explained that such comment was in respect of him taking the position at Kip McGrath. The claimant explained that he saw the job as a good opportunity, however, he still held an intention to complete his bachelor degree, and Kip McGrath had indicated support in that regard. The claimant went on to explain that when the position became a possibility he dropped units in his degree, so as to better handle the demands of the job in the short term. It was stated by the claimant that he did not want to lose the opportunity with Kip McGrath.
The claimant has not worked since the accident. His employment was eventually terminated. Ms Allan questioned the claimant on his efforts to find employment since the accident. The claimant explained he looks at advertised positions, however, he feels that there is no way that he could commit to certain characteristics of the positions. It is only out of curiosity that he looks at the advertisements.
The claimant was also questioned about alleged inconsistencies in his complaints, and the fact that he attended a new year’s eve party days after the accident, and also travelled to Bali. The claimant denied that such activities meant that his complaints were not genuine. He explained that he was trying to save face, particularly with the family of his partner.
The statement of the claimant sets out the claimant’s ongoing difficulties including insomnia due to anxiety. He explains that he binge eats at night as a way to fall asleep and stays awake until very late as he is afraid of having nightmares. As a result, the claimant has bad mood regulation and is easily irritated and depressed. He struggles to maintain a routine, and showers and eats irregularly.
Due to binge eating, the claimant reports putting on 30kg since the accident. he is currently being treated with Ozempic injections and another medication, which is funded by the insurer.
Socialisation has been negatively affected, with the claimant having no motivation to go outdoors or talk to people outside his immediate household. His relationship with his partner is strained at times due to his poor mood regulation. In this regard, a brief separation took place in around 2020. It is noted that the claimant’s partner is also battling psychological symptoms as a result of the accident. The couple, however, have in recent times welcomed a baby boy.
Whist the ongoing psychological symptoms are described as the predominant ongoing issue in impeding the claimant’s ability to function, he also reports ongoing issues with his neck and right shoulder. He states he has ongoing pain and has difficulty with raising his right arm above chest height without pain.
Current medication includes melatonin for sleep, Diazepam for anxiety, Nexium for heartburn and medication for weight loss.
TREATING MEDICAL EVIDENCE
Prior motor vehicle accident
On 27 March 2019 the claimant was involved in a prior motor accident when he was hit from behind whilst in his car stationary at traffic lights. He attended upon his general practitioner (GP) complaining of neck and right shoulder pain. It appears that he initially reduced his work hours as a result of the symptoms.
Subject motor vehicle accident
An Application for Personal Injury Benefits signed by the claimant dated 10 January 2020 includes the following description of injuries received: “I have got severe headaches that are affecting me to stay awake as I cannot stand for too long or focus. Whiplash from the impact. I am unable to sleep as I feel anxious and depressed from the accident.”
In his statement dated 1 August 2022, the claimant noted that the airbags were deployed in the accident. He was able to self-extricate from the vehicle and he noticed liquid all around the car. He describes being fearful that the petrol was leaking and the car was going to set alight.
The claimant explains that he was driven to Port Macquarie Emergency Hospital from the scene of the accident by a family friend.
Documents from the Port Macquarie Hospital are not before me, however, the claimant states that the hospital staff identified him as suffering from lacerations and bruising to his anterior chest and abdomen. He and his partner (Laura) were thereafter driven back to Sydney by Laura’s parents.
The claimant describes having difficulty sleeping after the accident with nightmares occurring. He also had ongoing pain in his right shoulder and neck and became anxious and depressed.
The claimant attended upon GP, Dr Massoud, on 6 January 2020 and gave a history of the accident. A mild whiplash injury on the right side was noted and the claimant was otherwise described as well.
Two days later the claimant returned to his GP complaining of increased depressive/anxiety symptoms since the motor accident. He was noted to be not sleeping, experiencing low mood and an avoidance to driving. In addition, the claimant reported to his GP that he had not been able to work and this was increasing his anxiety. It is apparent from the GP notes that Dr Massoud explained the claims process to the claimant at this consultation.
The GP’s notes reveal the claimant has frequently attended upon Dr Massoud complaining of ongoing issues, centred on psychological difficulties.
Dr Massoud provided a report to the claimant’s solicitors dated 16 June 2020. He provided a diagnosis of whiplash disorder and adjustment disorder. With the adjustment disorder persisting to become a Post-Traumatic Stress Disorder. Dr Massoud stated that the claimant did not experience neck pain prior to the accident.
The claimant was referred to psychologist, Ms Bianca Sabbah at PeopleSense, for treatment. She provided a report to the claimant’s solicitors dated 25 June 2020. At that stage, Ms Sabbah had seen the claimant on seven occasions, on what appears to be a fortnightly basis.
Ms Sabbah diagnosed the claimant as suffering from a Post-Traumatic Stress Disorder as a result of the accident.
In terms of earning capacity, Ms Sabbah noted the claimant had significant difficulty achieving restorative sleep. She considered that with treatment the claimant should be able to upgrade in the future.
Consultation notes from PeopleSense of July 2020 document the claimant having concerns with his partner’s difficulties following the accident. He was also attending TAFE, working late at night, which was apparently assisting with him having a sense of purpose. The claimant apparent felt judged by his in-laws as being “less than.”
The clinical note also documents the claimant travelling to Bali with his partner and her family in February 2020. He made a decision not to communicate with the family about the difficulties he was experiencing after the motor accident, including being off work.
By August, clinical notes reveal that the claimant’s relationship with his partner had broken down and she had relocated back to Coffs Harbour temporarily. He had also discontinued his TAFE course due to low motivation.
In a report to the claimant’s GP dated 28 February 2022, Ms Immie Wijeratne of PeopleSense notes the claimant describing severely impaired sleep, avoidance behaviours, and maladaptive coping strategies, such as frequent and persistent binge-eating in anticipation of daily nightmares. The report states the “…residual trauma of the incident impacted the completion of his studies, his general wellbeing, and his friendships due to impaired motivation to engage and withdrawal.”
Ongoing physical symptoms were noted described as pain in the neck and right shoulder when seated for extended periods of time. He was able to do upper-body exercises and continued to visit the gym.
The claimant was referred to psychiatrist, Dr Samuels, seemingly by his GP. However, in a report dated 4 July 2020 addressed to the insurer there is suggestion that the referral came from the insurer.
Dr Samuels noted that the consultation time of one hour was not sufficient to give an assessment given the complex nature of the psychopathology of the claimant. It was also noted that there was difficulty in distilling out which symptoms are a result of the accident and which may be secondary to the high use of benzodiazepines prescribed by the GP for insomnia. It is apparent the claimant did not return to Dr Samuels, even though the doctor had requested further appointments for assessment and to wean the claimant from the diazepam medication.
The claimant was also referred to psychiatrist, Dr Manambrakkat. Only one consultation occurred. In a report dated 5 July 2021, the doctor noted a history of the claimant having nightmares, bad mood and an uncharacteristic aggressive reaction response. He was noted to have isolated himself with limited contact with friends/family.
Dr Manambrakkat recommended a change in medication, however, the claimant did not follow up with review.
MEDICO-LEGAL EVIDENCE
Claimant’s medical case
Consultant psychiatrist, Dr Rastogi, has provided reports to the claimant’s solicitors. In her first report of 9 April 2021, Dr Rastogi remarked that the claimant presented as anxious and depressed with marked frustration, with a history of feeling like a failure.
Dr Rastogi diagnosed a persistent Major Depressive Disorder with post traumatic features. A guarded prognosis was given, given the limited improvement. The doctor considered the claimant to be displaying poor stress coping with struggles with adaptation with social and functional impediments. As such, the claimant’s vocational capacity was impacted. She went on to state:
“His capacity to work in preinjury duties is diminished and he continues to be unfit to work currently. He may have capacity to do part time work in step down role in future with vocational assessment and support. His options in open labour market remains poor due to his psychological injuries and poor stress coping and it is likely he will seek premature retirement. His vocational prognosis is limited. He has lost confidence and demonstrates poor concentration impacting his ability to handle stress and complex decisions.”
A whole person impairment of 15% was assessed by Dr Rastogi.
In a further report dated 29 May 2022 Dr Rastogi noted that claimant had now had a son with his partner. The claimant was said to remain unfit to work or study in any capacity. Psychological treatment though PeopleSense had recommenced.
Findings on examination note the claimant to be very disappointed in himself with poor self worth. The claimant was said to be feeling very demoralised.
The diagnosis of persistent Major Depressive Disorder with post traumatic features remained. The claimant’s options in the open labour market was described as remaining poor due to his psychological injuries and poor stress coping. An updated assessment of whole person impairment was given of 19%.
In respect of physical injuries, the claimant relies upon a report of Dr Gehr, orthopaedic surgeon, dated 13 April 2021. Dr Gehr noted the history of the previous motor accident. The claimant was said to have made a full recovery and did not see a specialist.
In respect of the subject accident the claimant reported ongoing pain over the cervical pain and the posterior aspect of the right shoulder. The doctor diagnosed a soft tissue injury to the cervical spine with guarding, dysmetria and right radiculopathy. A soft tissue injury to the right shoulder was also diagnosed with rotator cuff muscle wasting, decreased range of motion and positive impingement indicating rotator cuff pathology.
Dr Gehr considered the claimant was suffering from a work incapacity, however required formal assessment by an occupational physician.
A vocational assessment report is relied upon authored by Peter Tingle, consultant occupational psychologist dated 30 September 2022.
Mr Tingle considered the claimant’s prospects of returning to full duties are extremely poor. The claimant was described as a committed and capable man who would have normally been a great asset for any employer. However, he is now at a disadvantage due to employers being reluctant to employ the claimant due to perceived risks associated with his injuries.
It was concluded that the claimant would possibly have options for part time work in the medium to longer term if there was an improvement in the claimant’s functioning. It is stated that it will be essential that the claimant’s limitations be accommodated and supports are in place to help train, secure and sustain employment. Possible options are said to include: tutoring; primary school teacher, assistant teacher – special needs teacher; and, special needs teacher.
In terms of the claimant’s most likely position, but for the accident, Mr Tingle concluded that the claimant probably would have continued to work as a centre manager in the short to medium term and have completed his Bachelor of Education degree. It is stated that it would be likely that the claimant would have gained employment as a primary school teacher over time and have gained promotion therefrom within the school system.
It was considered that the claimant now has substantially diminished prospects for achieving his goals and is unlikely to work more than 20 hours per week. It was also stated the claimant will be subject to symptom relapse from his injuries and may need time off.
Insurer’s medical case
The insurer relies upon a lengthy report of Dr Phillips, psychologist, dated 22 July 2020. The claimant underwent psychometric testing administered by Dr Phillips. The conclusion reached by Dr Phillips is that the claimant is malingering. Dr Phillips suggests that the test results force an assessor to make a choice between accepting the “taken at face value and biased clinical interview conclusion or the objective scientifically sound and replicable psychometrics.” Rather dramatically, it is stated by Dr Phillips that if the claimant is giving a forthright account, then the claimant “..has schizophrenia worse than 98% of people with schizophrenia.”
In respect of physical injuries, the insurer relies upon the report of orthopaedic surgeon, Dr Powell, dated 21 March 2022. The claimant reported ongoing symptoms in his right shoulder and neck. In terms of diagnosis, Dr Powell noted some difficulty given the lack of information and lack of clinical signs. He concluded that the claimant may have suffered non-specific soft tissue injuries to the neck and right shoulder. No further treatment was recommended. Dr Powell did not consider there to be any physical impairment for work in the future.
The insurer relies upon a vocational assessment report authored by psychologist, Dr Levi dated 14 July 2022. Dr Levi provided an opinion that the claimant was suffering from depression, and did not meet the criteria for a diagnosis of Post Traumatic Stress Disorder.
When commenting on the report of Dr Phillips, Dr Levi noted the measures used were quite lengthy, and given the claimant’s history of dyslexia, would have been a challenge to complete. He stated: “the possibility remained that the outcome pointing to inconsistencies were more a function of Mr North struggling to complete the lengthy questionnaire and skimming though the items.”
Overall, Dr Levi considered the claimant was over thinking his situation and due to concerns about possibly not coping he was putting up barriers to move forward in his rehabilitation.
Dr Levi considered that on the material before him he considered the claimant would be capable of employment, initially on a part time basis and eventually on a full time basis. Dr Levi noted that his findings were that the claimant was motivated to find employment.
Possible employment options were identified such as: casual childcare educator; tutoring with Kip McGrath; and, before and after school care with Camp Australia.
Medical assessment of Medical Assessor Lewin dated 13 November 2020
Medical Assessor Lewin issued a certificate and reasons through the then Dispute Resolution Service of the State Insurance Regulatory Authority in respect of a dispute as to whether the claimant’s psychological injury was a minor injury (now known as threshold injury).
Medical Assessor Lewin noted the claimant to report intermittent symptoms of hopelessness and sleep disturbance. Despite ongoing symptoms, the claimant at the time was not on any psychoactive medication and had not been in the care of Ms Sabbah.
The report of Dr Phillips was discussed by Medical Assessor Lewin. He stated at page 64:
“I carefully considered the conclusions of Dr Phillips. I was left with several questions about the validity of the assessment methodology and noted that he did not provide a detailed account of the history. I did not find evidence of extreme symptomatology. There was no report of psychotic phenomena. There was no report of persecutory delusions or morbid depressive features and Mr North did not dwell upon post-traumatic symptoms of anxiety. Having considered data from multiple sources and having reviewed the findings as laid out above and when considering clinical experience, I found no evidence of dissimulation or malingering at the time of the assessment.”
It was also observed by Medical Assessor Lewin that Dr Phillips did not provide test scores for review by an appropriate colleague in the usual format and the conclusions reached were not tested against any alternate assessment.
A diagnosis of Major Depressive Disorder was given, with the clinical features of trauma not reaching the threshold for a diagnosis of Post-Traumatic Stress Disorder.
ASSESSMENT OF DAMAGES
Non-economic loss
The insurer has conceded the claimant’s injuries exceed the 10% whole person impairment threshold for entitlement to non-economic loss damages. The insurer submits that an allowance of $125,000 represents a reasonable award.
In making such submission the insurer suggests that there is very little evidence to support the view that the claimant suffers from any relevant physical incapacity for his usual wok and day to day activities.
In respect to the claimant’s psychological injury, the insurer notes the content of the claimant’s treatment providers, and Dr Rastogi, however, points to the more recent view of Dr Levi. It is suggested that the views expressed by Dr Levi “…should give the claimant confidence that his prospects now and for the future are not as grim as he perhaps perceives them to be...”
At the assessment conference, the insurer’s Counsel suggested that the claimant’s level of functioning is perhaps greater than he alleges. It was noted the claimant has been able to get on with his life in some respects, noting he had recently become a father and his relationship with his partner had been restored after a period of separation.
The claimant makes a claim of $350,000 for non-economic loss damages.
In support of such claim the claimant relies upon the submissions of his counsel, Luke Morgan dated 18 February 2023. Mr Morgan points to the claimant’s achievements up to the date of the accident, despite some significant obstacles, and had bright future prospects. It is stated:
“The claim for non-economic loss is advanced in terms…of a derailing of a promising career of a young man through no fault of his own in circumstances where through his own effort and perseverance he had established a rewarding life and career now bough [sic] to nought.”
Whilst there is suggestion on behalf of the insurer that there is some doubt over the veracity of the claimant’s complaints I found the claimant to be an honest witness. I formed the impression that he was a very earnest young man who appeared to be anxious to give as much detail and information in his oral answers as possible.
Dr Levi’s impression that the claimant is perhaps overthinking his situation, rings true to me. However, I reject any suggestion that the claimant’s evidence is anything less than honest. In this regard, I reject the opinion of Dr Phillips. In doing so, I adopt the criticisms of his report as set out by Medical Assessor Lewin. It is to be noted that Mr Tingle, reporting to the insurer expressed some doubts in Dr Phillips methodology. Leaving aside the opinion of Dr Phillips, all other health practitioners have accepted the claimant’s complaints as genuine. I do not consider there to be any issues of credit in this matter.
The medical evidence supports the view that the claimant’s psychological health has been profoundly affected by the occurrence of the motor accident. The evidence suggests the claimant was on a determined path to achieve vocational success in the education sphere. Whilst there are some doubts as to exactly what path the claimant would have taken, but for the accident, nonetheless I am satisfied the accident has dramatically adversely altered the claimant’s career and general life goals.
Whilst clearly the claimant’s chief ongoing issue is psychological in nature, I do accept that there are some ongoing symptoms in respect of the neck and right shoulder injuries. However, the preponderance of medical evidence suggests that such ongoing issues are minor in nature. Whilst Dr Powell reported the claimant’s soft tissue injuries are minor and would not restrict his vocational pursuits and activities of daily living, he did seem to support the suggestion the claimant has some restrictions with certain movements.
In making my determination I have considered the fact that the claimant has been able to progress his life to some degree in facets other than employment. In this regard, I note the claimant’s relationship with his partner has progressed to the extent that the couple now have a child.
Having regard to the above matters, the claimant’s young age, the seriousness of the injuries, the loss of enjoyment of life and pain and suffering I award an amount of $275,000 for non-economic loss.
Past economic loss
The claimant has not worked since the accident. He has been in receipt of ongoing payments of weekly statutory benefits from the insurer.
At the time of the accident the claimant was earning an average amount of $1,169.46 net per week.
It is alleged that the claimant would have earned an extra $50 net per week each financial year since the accident. The claim for economic loss is therefore based on a figure of $1,269.46 net per week.
Such amount is claimed from the date of the accident until the date of assessment, plus superannuation.
The insurer submits that the amount of $1,169.46 should be allowed up until the date of the assessment with Dr Levi on 23 June 2022 (130 weeks). It is submitted that based upon the opinion of Dr Levi it is reasonable to allow the claimant 50% loss of capacity, being 50% of $80,000 translating to $516.83 per week up until the date of the assessment.
Having regard to the medical evidence, and the claimant’s presentation at the assessment conference, I do not consider it reasonable to conclude that the claimant has a current earning capacity.
Whilst Dr Levi considered the claimant fit for some part time work, when considering the remaining medical evidence, and the evidence given by the claimant, I do not consider it likely that the claimant currently has an earning capacity to exercise. Given his apparent severe insomnia and other symptomatology I am not satisfied the claimant would be successful in obtaining and maintaining employment at this stage.
Whilst there was suggestion put to the claimant that he could undertake part time work such as with an afterschool care group, I accept the claimant’s evidence that his anxiety and concern surrounding him being in charge of the welfare of children at this point in time is valid.
As such I allow the amount of $1,169.46 net per week from the date of the accident to date. This period of time represents approximately 176 weeks.
I therefore award an amount of $205,824.96.
In addition, I award an amount of $22,640.75 for superannuation (11%).
Fox v Wood
On 15 May 2023 the parties advised me of an agreed figure of $16,239 for Fox v Wood damages. I award such amount.
Future economic loss
The claim for future economic loss is described as reasonably conservative by Mr Morgan, the claimant’s counsel. In this regard, the submissions make a concession that the claimant has an optimistic view that his psychological condition will ameliorate, or otherwise coping mechanisms will be adopted such that will allow a return to society as a positive contributor.
However, it is submitted that the claimant’s capacity in the long term has been significantly affected, given the opinions of Dr Rastogi and Medical Assessor Lewin.
The claim is based on an assumption the claimant will be totally incapacitated for the next three years and thereafter will suffer, on average, a 50% diminution of capacity. The claim totals $582,209 plus superannuation calculated at 14.58%.
The insurer, submits that it would be reasonable to allow a further two years at a loss of $520 net per week (50% loss of capacity). It is submitted that thereafter the claimant would properly transition to full time work. However, an additional buffer of $100,000 is suggested on the basis of a concession that there is probably a risk that the claimant is or might be vulnerable to having psychological episodes requiring time off work. The total amount conceded is therefore $143,935 plus superannuation calculated at 14.43%.
The claimant’s submissions that include concession that he is likely to re-enter the workforce in the future is a sensible one. Such concession matches my impression formed from the claimant’s oral evidence. The claimant gave very frank evidence that he very much would like to enter the workforce again and is clearly struggling with feelings of worthlessness due to his inability to do so to date.
Whilst I accept the overall conclusions of Dr Levi that the claimant is overthinking his situation, I do not accept the submission of the insurer that Dr Levi’s opinion in respect of him being currently fit for employment should be adopted. It is noted that his opinion was provided only two months after the latest report of Dr Rastogi who noted a deterioration of the claimant’s condition. Dr Rastogi opined the claimant was not fit for work at that time. I accept the opinion of Dr Rastogi in this regard given the very significant psychological symptoms recorded.
I note that Medical Assessor Lewin had recommended the claimant seek treatment with a psychiatrist. It appears that there have been some failed attempts in the past in this regard. I consider that with the help of a psychiatrist that the claimant has a rapport with, and with appropriate vocational guidance the claimant will in all likelihood re-enter the workforce in the future. Initially, this would be on a limited basis, however, with ongoing therapy, increased hours is likely to occur in the future.
However, I do accept the claimant will continue to suffer an earning incapacity owing to his psychological condition into the future until retirement age. In this regard, the psychological injury is significant and several years have elapsed since the accident with little improvement, if any, evidenced.
At the time of the accident the claimant had just embarked upon a new career path within the education sphere. It is clear that he was excited and committed about the opportunity presented with Kip McGrath. It is not clear on the evidence whether the claimant would have ultimately taken the path of becoming a primary school teacher. Nonetheless, I consider the claimant’s most likely future circumstances, but for the accident are that he would have continued working in the education industry either in a similar role he was in at the time of the accident, or otherwise as a teacher. I do consider it more likely than not that he would have eventually completed his Bachelor Degree.
Having regard to the evidence, I award future economic loss on the following basis:
a. Full loss at a rate of $1,169.46 for a further two years. Utilising the 5% tables this totals $116,244.32
b. Fifty percent loss of earning capacity for a further five years ($584.73 net per week). Utilising the 5% tables and deferred tables this totals $122,776.05.
c. Twenty percent loss of earning capacity ($234) until retirement age (31 years). Utilising the 5% tables and deferred tables this totals $138,722.64.
d. TOTAL of $377,743.01 less 15% for vicissitudes equals $321,081.55.
I therefore award the amount of $321,081.29 for future economic loss in addition to an amount of $46,332.03 for superannuation (14.43%).
COSTS AND DISBURSEMENTS
The insurer has indicated agreement to the claimant’s claim for costs with regulated caps applied, save for the amount of conferences claimed. I have allowed three hours of conferences as being reasonable rather than the six hours claimed.
I assess the claimant’s legal costs and disbursements in accordance with the attached worksheet in the amount of $63,966.76.
Assessment of damages summary
I assess the claim as follows on the findings set out above:
· Non-economic loss $275,000.00
· Past economic loss $205,824.96
· Past superannuation $22,640.75
· Fox v Wood $16,239.00
· Future economic loss $321,081.55
· Future superannuation $46,332.03
· TOTAL $887,118.29
CONCLUSION
In accordance with Division 7.6 of the MAI Act, the Personal Injury Commission’s assessment is:
(a) the amount of damages for the claim is $887,118.29;
(b) the amount of the claimant’s costs in the matter is $63,966.76 inclusive of GST, and
(c) the insurer to have credit for payments of weekly statutory benefits made pursuant to Division 3.3 of the Motor Accident Injuries Act2017.
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