O'Connor v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 112
•19 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | O'Connor v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 112 |
| CLAIMANT: | John O'Connor |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 19 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of claim for damages; claimant riding motor scooter; injuries to shoulders, right knee, lumbar spine, cervical spine, and hip; 7% whole person impairment; reason for cessation of employment; accurate and honest histories; right shoulder undisplaced fracture; left shoulder rotator cuff tears; harassed at work; work stress consequent on diminished work capacity; employment termination; mitigation of economic loss; assessment past economic loss; assessment future economic loss; intended retirement age of 72; damages assessed; Held – the insurer 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; under sub-sections 7.36(3) and 7.36(4) the amount of damages is $350,000. |
| DETERMINATIONS MADE: | ASSESSMENT CONFERENCE REPORT Issued under section 7.36 of the Motor Accidents Injuries Act 2017 1. On the issue of liability for the claim, Insurance Australia Limited t/as NRMA (the insurer) 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 sub-sections 7.36(3) and 7.36(4) of the Motor Accidents Injuries Act 2017 (the MAI Act),I specify the amount of damages for this claim as $350,000. 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 Act is $33,241.60 inclusive of GST. 4. Attached to this certificate are reasons for my assessment. |
STATEMENT OF REASONS
INTRODUCTION
John O’Connor (the claimant) is a 64 year old man who was injured in a motor vehicle accident on 1 April 2021. He was riding a motor scooter and was attempting to merge toward the left hand lane so as to turn left at the intersection of Harris Street and the Western Distributor when the insurer’s vehicle collided with the claimant and knocked him off his motor scooter. The insurer has conceded negligence on the part of its insured with no allegation of contributory negligence of the part of the claimant.
He was taken to Sydney Hospital with injuries to his both shoulders, right knee, left knee, lumbar spine, cervical spine and hip.
At the time of the accident the claimant was working for Westcon Group Pty Ltd as a Vendor Business Manager. His role involved the managing of the company’s cyber security products. He had been employed there since December 2019 and received an annual salary of about $148,000.
The claimant sought a concession from the insurer that his injuries exceeded 10% whole person impairment (WPI). After a review the insurer declined to make this concession and consequently he was examined by Medical Assessor Robert Kuru on 23 August 2024 who certified that he had sustained a permanent impairment of 7% as a consequence of the physical injuries he sustained in the accident.
Accordingly, the matters requiring assessment are limited to past and future economic loss together with appropriate calculations for costs and disbursements. The contentious issue in respect to assessing the claimant’s economic loss would seem to be determining whether or not, as a consequence of the injuries and disabilities following the motor vehicle accident, the claimant ceased his employment with Westcon on 31 August 2021. If the cessation of this employment, as the claimant submits, is a direct consequence of the disabilities following the accident then it follows the economic loss he suffered for the two years he was unemployed and a reduction between his previous earnings and his current earnings as a bus driver, would form the basis of the calculation for economic loss.
Alternatively, as the insurer submits, if he ceased his employment for reasons unrelated to the sequelae of the accident, then past economic loss would be limited to a small closed period and future economic loss limited to a relatively small buffer.
Accordingly, it is appropriate to consider the medical material in respect to the claimant’s injuries, particularly his general practitioner’s records, as well as the assessment of the veracity and credibility of the claimant as the assessment of these matters will assist greatly in determining the appropriate method for calculating of past and future economic loss.
Medical material
In my view the claimant gave accurate and honest histories to the medical practitioners. The report of Dr T. Gothelf dated 27 February 2024 notes the claimant’s pre-accident medical history including right knee injuries, right elbow, right thumb amputation and intermittent shoulder and low back pains usually arising from renovation work he was undertaking prior to the accident. Following the accident the claimant complained of symptoms consequent on injuries to the neck, hips, shoulders and knees. Whilst the report of Dr Gothelf suggests inconsistencies in the previous medical history the report does state:
“The history is consistent with the physical examination findings and is consistent with the documentation provided.”
The material notes right shoulder strain and an undisplaced fracture, left shoulder rotator cuff tears, soft tissue injury to the left hip, left knee strain, a lumbar spinal strain, cervical spinal strain and further injury to his right knee.
The report did not address the claimant’s working capacity in the immediate post-accident period. He states that following the subject accident:
“He returned to work after a few days. He has continued to work since then. He left his office job 6 months ago and obtained a bus driver’s license and worked for Transit Systems as a bus driver.”
This does not address any of the significant injuries and disabilities which the claimant suffered from in the immediate post-accident period.
The more relevant medical material is that which was obtained in the post-accident period. The report of Dr W. Harper dated 23 August 2021 notes that the claimant:
“sustained a right shoulder undisplaced greater tuberosity fracture and has some residual subacromal impngement.”
He goes on to comment that the claimant was stressed.
The report of Dr W. Harper dated 26 July 2021 notes that the MRI scans of the left shoulder showed minor partial thickness rotator cuff abnormality. The report of Dr J. Bodel dated
17 January 2024 notes the claimant suffers restriction of neck and shoulder girdle movement, back movement and right knee movement. This report identified a WPI of 20%.The claimant was seen by Medical Assessor Robert Kuru on 23 August 2024. He identified the fracture of the right shoulder, a torn rotator cuff to the left shoulder, a torn ACL and fracture of the right knee as well as soft tissue damage to the cervical spine, lumbar spine and left hip as being injuries sustained in the motor vehicle accident. This report, in my view, most clearly and completely identifies the injuries sustained by the claimant. Following the accident the claimant was under care of Dr E. Rice. The notes of Dr Rice of 28 April 2021 note the sequelae of the motor vehicle accident including pain left neck and shoulder continues, complaining low back pain, left leg sciatica and pain cocyx. Following this he was sent for numerous scans. The notes of 25 April 2021 include the following recorded history:
“At work, meant to be working in a team of four people, only him on the team, his managing director has been pressuring him and telling him the job is not good enough, despite no team and him meeting targets.”
He goes on to observe that the claimant was stressed with this and wrote a complaint letter and will consider if he needs psychology support.
The notes “patient states he is struggling at work, states he has been bullied and not coping at present, asks for two weeks leave, reasonable request” do identify that the claimant was being bullied. That said, it comes concurrent with the claimant having signficant physical injuries, significant ongoing pain and, as the notes from his Dr E. Rice of 21 June 2021 state: “wants to get back to work, but finding it hard to do this at present.”
The claimant attended his General Practioner (GP) on 27 May 2021 and again it was noted that, “patient states he is struggling with work, states he is being bullied and not coping at present.” The patient was attending his GP very regularly. The notes indicate he saw his GP on 19 May; 21 May; 25 May; 27 May, and 31 May. On these occasions the claimant indicated that he had incidents at work, that he was struggling at work and, on 31 May 2021 following the submission of work he,“had email from another executive telling him that he is not fitting in with the company.”
The GP notes of 4 June 2021 state “work stress continues and he does not feel he can return at present.“
The medical material supports a contention that, as a consequence of the injuries sustained in the motor vehicle accident, that he was having difficulties performing to a high standard at work. Consequent on these difficulties, his performance at work deteriorated and his employers responded with indications that he was not coping and it follows that the claimant was under significant stress caused by his deteriorating work performance.
Following the cessation of the claimant’s employment he continued to receive medical treatment. This included pain relief medication and physiotherapy. He now notes that he walks with an altered gait over time which has caused further pain in his hip. He suffers ongoing shoulder pain. He has difficulties performing day to day activities. In my view this accords with the medical material.
The claimant
The insurer submitted that the claim ought to be limited to past economic loss of about one week. Presumably this submission is made on the basis that the sequelae of the motor vehicle accident was fairly minimal and played no role in the termination of the claimant’s employment. For this submission to be accepted the claimant’s evidence must be rejected. In that regard, the claimant’s statement dated 17 February 2025 was comprehensive in respect to the circumstances surrounding the cessation of his employment. He outlines, and was cross-examined about, the difficulties he had at work due to his injuries. He states that, following the accident, he could not work with the same degree of dilligence, he could not put in any overtime, he was suffering ongoing pain, he was required to attend regular medical appointments and was generally unable to work with the same vigour that he had prior to the accident.
Noting that the claimant only had two major accounts at the time of the accident his employment circumstance can be considered somewhat precarious. Once his employer started to receive complaints in respect to his management from the account holders, his employer “took him to task about the complaints and took over direct management of myself.” He was receiving emails which were critical of his performance and required his improvement. There was a singular lack of empathy in respect to the claimant’s circumstances. The effect of these is that the claimant was unable to continue his employment and consequently ceased work. In my view, accepting the claimant’s statement, and accepting the claimant to be a truthful witness at the assessment conference, I have no diffculty in determining that the cessation of the claimant’s employment was as a consequence of his deteriorating work performance which, in turn, was as a consequence of the injuries sustained in the motor vehicle accident. The specific matters put to him that he resigned to do home renovations was denied. Indeed, I found the claimant to be a stoic individual who has, since the accident, attempted to do all within his power so as to maintain employment, recover from his injuries and maintain a positive disposition generally.
Past economic loss
I am satisfied that the claimant ceased his employment with the Weston Group, where he worked as a vendor business manager overseeing the company cyber security business products for clients, as a consequence of the injuries sustained in the motor vehicle accident. I note the parties agreed that the claimant was earning about $2,212 per week at the time of the accident.
Whilst the claimant did lose time off work, prior to the cessation of his employment, the material does not support any contention that the claimant was not paid sick pay for this period nor that his employer seeks any reimbursement of it.
The claimant ultimately ceased his employment on 29 July 2021. He continued to be paid in that employment until 31 August 2021 in accordance with the agreement with his former employer. The claimant was then unemployed from September 2021 until he commenced his employment as a bus driver for Transit Systems on 3 July 2023.
In the intervening period the claimant sought to obtain employment of the kind which he had prevously undertaken at the date of the accident. That is, roles related to the management of cyber security. The claimant’s evidence outlines a number of entities which he sought employment. Put simply he was unsuccessful in obtaining any work of this type in this industry.
He occupied his time by seeking employment and, as he states, “I did undertake some limited renovations in my house. These included replacing pavers in the small courtyard and gardening.” He also repainted inside and outside the house.
During this period of some 100 weeks, the claimant was not being paid. Had he maintained his employment then he would have earned approximately $220,000 plus employer superannuation contributions during this period. That said, as the insurer submitted at the assessment conference, the claimant was not incapable of any type of work during this time. Whilst it was reasonable for the claimant to seek to obtain high calibre work which remunerated well and which fit his prior work experience and skillset the claimant could have undertaken some other type of employment during this period or sought re-employment in an alternative industry, such as he ultimately did, somewhat earlier than July 2023.
Whilst it is somewhat an inexact science, I consider it appropriate to provide for past economic loss by way of a buffer. This would be loosely reflected on some 12-18 months unemployment or altenatively a general residual earning capacity which was not exercised, during the period of his employment reflective of 25-50% of his pre-injury earning.
Noting that past economic loss must also include an allowance for employer superannuation contributions I assess the claimant’s past economic loss, including loss of superannuation payments, in the sum of $150,000.
Future economic loss
The insurer submitted that the claimant ought to be allowed a buffer for future eocnomic loss of $55,000. This figure was calculated on a loss of in the order of $202 per week or approximately 10% of the claimant’s net weekly earnings for six years (to age 70). As the insurer’s submissions noted the High Court Decision in Graham v Baker [1961] HCA48 determining the calculation of economic loss is not whether the claimant is currently experiencing economic loss, but whether his injuries may be productive of economic loss.
The claimant submitted that future economic loss ought to be allowed in the sum of $239,591 being the difference between his pre-accident pay and his current pay ($725 per week) to age 72. This includes loss of employer superannuation.
It follows on the finding that the claimant’s pre-accident employment ceased as a consequence of the injuries sustained in the motor vehicle accident that the correct calculation for future economic loss is one based on the net wage difference between his current work as a bus driver and his pre-injury employment as a manager overseeing cyber security business products.
The claimant has established himself as a highly motivated individual who will persist in the work force in any way he can. Clearly, but for the injuries he sustained in the motor vehicle accident, he would have remained in his pre-accident employment. He states, and I accept,
“but for the subject accident I would have continued working for the remainder of my life so I can support my children through the high cost of living. However due to my injuries I believe I will retire a lot sooner.”
I accept the claimant’s submission at the assessment conference that he is currently between $675 per week and $700 per week worse off as a consequence of the cessation of his pre-accident employment. He has shown great determination in obtaining employment as a bus driver but he is still worse off. Whilst there is some uncertainty as to how long his pre-injury employment would have lasted, just as there is some uncertainty as to how long he would be able to continue to work as a bus driver, I do accept the claimant’s stated intention that, prior to sustaining his injuries, he was intending to continue working as long as he was able and the opportunity to work continued.
Noting the uncertainty and the lack of precision in determining such dates, it is appropriate to provide a buffer for future economic loss. I concur with the claimant’s submissions that an allowance ought to be made for an intended retirement of age of 72. That said it is, in my view, appropriate to allow more than the standard 15% for vissicitudes noting the uncertainties associated with calculation of loss to an intended retirement age some five years beyond that which he would be eligible an age pension.
Noting this I consider it appropriate to provide a buffer for future economic loss, including loss of employer superannuation contributions of $200,000.
Assessment of Damages Summary
Past economic loss $150,000
Future economic loss $200,000
Total damages assessed $350,000
CONCLUSION
Under sub-sections 7.36(3) and 7.36(4) of the MAI Act , I specify the amount of damages for this claim as $350,000.
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 Act is $33,241.60 inclusive of GST.
COSTS
I assess the claimant’s legal costs and disbursements in accordance with ss 8.3 and 8.4 of the MAI Act and the Motor Accident Injuries Regulation 2017 in the sum of $33,241.60.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
• Motor Accident Injuries Act 2017, and
• Motor Accident Injuries Regulation 2017.
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