Ok v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 290
•17 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ok v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 290 |
| CLAIMANT: | Jae Won Ok |
| INSURER: | NRMA |
| MEMBER: | David Ford |
| DATE OF DECISION: | 17 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS -Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36 (3) and 7.36 (4); claimant was a pedestrian at Sydney International Airport when he was struck by the insured vehicle which was departing from the airport departures ramp; insured admitted liability and no allegation of contributory negligence; claimant suffered injury to right hip and lower back as well as psychological injuries; claimant is a manager of a restaurant; claim for past economic loss for a closed period of nine months only; Held – claimant is entitled to damages for past economic loss. |
| DETERMINATIONS MADE: | CERTIFICATE
|
STATEMENT OF REASONS
INTRODUCTION
At approximately 7.57pm on 23 January 2020, Jae Won Ok (the claimant) was a pedestrian at Sydney International Airport, when he was struck by the insured vehicle which was departing from the airport departures ramp. The claimant alleged injury to his right hip and lower back, as well as psychological injuries. The claimant’s wife drove him to a police station where he reported the accident, and thereafter, he was taken to Prince of Wales Hospital where he was admitted but discharged on the same day. He then came under the care of his general practitioner Dr Ho, and thereafter referred to Dr Kalanie , orthopaedic surgeon. His treatment has been medication, physiotherapy and several injections to his right hip.
In the report of Dr Peter Conrad dated 18 August 2023, it is recorded at the time of the accident, he was working at a restaurant as a general manager and doing various jobs, such as serving meals and working full time. He was then off work for about nine months. Thereafter, he commenced work on a construction site, doing administrative work and managerial work, working full time. It then transpired he was severely assaulted when on a construction site on 5 October 2020, when he was hit on the head, injured his neck, right shoulder as well as psychological injuries. He stopped work on 5 October 2020 and has not worked since then, in either full time or part time employment.,
There was a dispute between the parties as to whether the injury to the right hip was injured in the subject accident. At the assessment conference, I advised the parties I accept the findings of Medical Assessor Jonathan Herald, in his Certificate and Reasons dated 20 June 2023, in which it is certified the right hip labral tear is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017 (the Act). I also note Medical Assessor Samson Roberts assessed the alleged psychological injuries to be threshold injuries in his Certificate and Reasons dated 28 June 2023.
The claimant was born in 1983 and is presently 40 years of age. At the commencement of the assessment conference, counsel for the claimant advised he did not rely upon the Submissions for Damages which were initially lodged in support of the application. The schedule totalled $2,159,625.60 plus schedule costs. These initial submissions gave no consideration to the fact the claimant had sustained serious injuries in the assault on 5 October 2020, and as a consequence of this assault, he commenced a workers compensation claim which was ultimately resulted in him receiving weekly statutory benefits totalling $219,519.20.
Counsel for the claimant revised the schedule of damages by oral submission and submitted at the time of the subject accident, the claimant was employed by Chefs Gallery earning $11,500 per month which resulted in a net weekly income $2,788 .Counsel submitted I should make allowance for past loss of earnings in the sum of $2,788 net per week for the period commencing 23January 2020 until 21 September 2020, a period of 37 weeks .This results in an amount claimed for past loss of earnings $106,449. There is no claim for past superannuation. It was submitted there is a claim for future loss of earnings which should be awarded on a buffer basis only. The claimant is not entitled to damages for non-economic loss. Counsel further advised the claimant commenced employment with THE SEV7EN STARS Pty Ltd on 21 October 2020, earning the sum of $2,984 net per week.
Liability was admitted by the insurer on 15 August 2023 and accordingly the claim comes before me solely to assess damages.
Outline issues in dispute
The following issue has arisen in this matter:
(a) past economic loss.
The main issues requiring my determination are as follows.
(a) to what extent if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until 21 September 2020, and
(b) what is the entitlement to damages which flow from the findings on the above issues.
Documents considered.
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Submissions made by the claimant.
The solicitor for the claimant lodged on the portal a Certificate of Capacity dated 4 February 2020 signed by the claimant’s general practitioner Dr Ho. This certificate stated the claimant had capacity for some type of work from 4 February 2020 until 3 March 2020 being two hours per day, five days per week. The claimant, in his Application for Personal Injury Benefits stated his usual occupation was general manager of Chef Assembly Pty Limited and that he was in receipt of annual income of $210,000. In response to the question “Length of time off work “he answered” still off”. It was dated 29 January 2020.
I refer to the report of Dr Amir Kaitane dated 21 April 2020 where he states the following on page 1 of his report.
“Ever since then he has had constant pain over the right lower quadrant of his back and posterior lateral aspect of his hip where the offending car made impact with him This pain is exacerbated with minimal activity/exertion. The pain comes on after
5-10 minutes of walking and then, he has, to stop and rest before he can continue. Sitting is the same with pain after 10 minutes and then he has to stand and stretch before he can sit down again. It is making it very hard for him to drive and do his work as most of his work is desk based and administrative. Any squatting or lifting of objects also triggers the pain. This appears to be very localised with no radiation. It makes it difficult for him to go to sleep and the pain can wake him up a couple of times per night.
He has been attending a physiotherapist for the past three/four weeks.
So far there has been no change. He is a partner and managing director of a restaurant chain. He used to work five days a week, however currently, he is only down to two days a week, with limited physical activity.”
The solicitor for the claimant also lodged on the portal a pay slip from Chefs Assembly Pty Ltd dated 6 January 2020 which disclosed an annual salary of $210,000 and a monthly pay of $11,500 The pay period was stated to be from 1 December 2019 until 31 December 2019. There was also a pay slip from the SEV7EN STARS Pty Ltd dated 21 September 2020 which stated his net weekly wage to be the sum of $2,994. Furthermore, there is a letter from Chefs Assembly Pty Ltd dated 11 June 2019 lodged on the portal, in which a Director of Chefs Assembly Pty Ltd, Kai Sern Ching states “To whom it may concern” the current gross salary of the claimant is $227,500 plus superannuation per annum.
The associate or for the claimant arranged for him to be examined on a medico-legal basis by Dr Peter Conrad and I refer to his report dated 18 August 2023. I refer to page 2 of the report under the heading “Present Symptoms”.
“Relate to the motor accident 23rd January 2020 Mr ok has unknown ongoing pain in his lower lumbar spine and pain and restriction of movement in right hip. All this is worse when he is standing., Sitting, bending or lifting he is typically walking and going up and down stairs.
he continues to see his GP, Dr Ho. He last saw Doctor Kalani, orthopaedic surgeon some two years ago. At the moment he takes tablets for pain. He last had physiotherapy some four or five months ago and the reason being, the NRMA stopped the physiotherapy and he himself cannot afford to pay for this. He had his last psychological counselling at about the same time, stopping for the same reason.”.
I refer to the statement of the claimant lodged on the portal dated 17 August 2020. At paragraph 23, he states the following:
“I work at Chefs Assembly. Peter often which pays the wages for Chefs Gallery. I am the general manager, and we have a number of restaurants Kai Sern Ching is the director. At the assessment conference he stated from March 2020, for a period of several months, the restaurant in which he worked closed because of the pandemic shutdown. The period of the shutdown for restaurants was advised by counsel for the claimant to be from 18 March 2020 until 1 July 2020.
. Submissions made by the insurer.
The solicitor for the insurer arranged for the claimant to be examined on a medico-legal basis by Dr Stephen Rimmer and I refer to his report dated 15 February 2024. Dr Rimmer is of the opinion the claimant’s injuries were directly and causally related to the accident; however, he believed any ongoing injury or disability had ceased and the claimant’s injuries had resolved. I note the following on page 6 of his report.
“Q. Do you consider the claimant’s injuries to have impacted his capacity to work from the date of the accident to date, if so, please advise how many hours per week the claimant has been able to work from the date of the accident to date, as result of any reduced capacity?”
“A. It did; however, the situation was complicated by the fact he works in the hospitality industry which had been severely affected by the COVID-19 lockdown around the time of the subject accident. He returned essentially in September 2020 working preinjury duties and hours “.
The claimant was also seen on a medico legal basis by Dr Graham Vickery, and I refer to his report dated 11 November 2020. He was of the opinion the claimant had depression and post-traumatic stress disorder from the previous motor vehicle accident in 2015 and longstanding chronic lower back pain. He opined there was no diagnosable psychiatric disorder for injury due to the motor vehicle accident.
The solicitor for the insurer also lodged on the portal several emails to Kai Sern Ching. An investigator engaged by the insurer had forwarded to Mr Ching a copy of a letter signed by him dated 11 June 2019 and which I have referred to above. Mr Ching responded as follows in an email dated 2 April 2024:
“Without Prejudice”
“Hi Trent, the company mentioned had been liquidated since 2021. Given the lack to records, I checked with my ex-accounting and HR administration staffs who confirm with me that Jae Won Ok had never worked for nor been paid by Chefs Assembly Pty Ltd before. I also have no recollection of signing and issuing the letter you attached. The signature on the letter was an electronic signature I used previously.
I hope this information is sufficient for you to assist your investigation”.
The solicitor for the insurer lodged submissions dated 13 October 2023 and 2nd April 2024. These submissions were in response to the initial submissions of the claimant in which the sum of $2,159,625.60 plus costs was claimed. In these submissions, the insurer notes the claimant’s Notices of Assessment and tax returns for the years 2019 and 2020 disclose a taxable income of $922 and $6,629 respectively. It is further submitted; these tax returns do not demonstrate the claimant declared income from Chefs Assembly to the Australian Taxation Office (ATO) during these years. The insurer notes the claimant’s 2020 income tax return states he did not receive any payment from any employer, with his only reported income having been derived from Centrelink benefits.,
In summary, the insurer submits the propensity of evidence suggests the claimant retained a far greater capacity for work following the subject accident than he has continually alleged. Having regard to the inconsistencies in evidence as to the claimant’s employment at the time of the subject accident, and that the claimant was apparently wholly fit by the time of the subsequent workplace assault, the insurer allowed nil for past economic loss.
REASONS
Past loss of earnings
I agree with the insurer’s submissions in regard to the claim for past loss of earnings made by the claimant. I accept he did suffer the injuries in the accident as alleged by him, but they were not significant, and if he did suffer a diminution in income after the accident, then it was of a minor consequence. His written statement does not properly particularise his claim for past economic loss and nor is he assisted by the information contained in his taxation returns Regardless of the COVID-19 shutdown, I do not find he suffered a past loss of earnings of any consequence, however, I note counsel for the insurer, at the assessment conference ,submitted if I was to allow an amount for past loss of earnings, then a small buffer of $5,000 which includes any allowance for past superannuation should be awarded to the claimant. I accept this admission and I further believe it is appropriate in the circumstances of this claim to make such a concession. I therefore allow the sum of $5,000 for past loss of earnings, including an allowance for past superannuation.
Assessment of damages summary
Under sub-s 7.36 (1)(b) of the Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
Past loss of earnings $5,000
Total of economic losses and non-economic loss $5,000
Reduction for contributory negligence Nil
TOTAL DAMMAGES ASSESSED $5,000.
Costs and disbursements
I assess the claimant's legal costs and disbursements in accordance with the Act and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet. I allow the insurer to deduct from the award of damages the non-attendance fee incurred in the sum of $655.15.
CONCLUSION
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.
I specify the amount of damages for this claim as $5,000 which includes the statutory benefits paid by the insurer.
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 $13,108.82 inclusive of GST.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
(a) the Act.
(b) Motor Accident Injuries Regulation 2017.
(c) Personal Injury Commission Regulation 2020.
(d) Motor Accident Guidelines 2017, and
(e) Personal Injury Commission Rules 2021.
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