Phillips v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 211
•12 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Phillips v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 211 |
| Claimant: | Gregory Phillips |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Hugh Macken |
| DATE OF DECISION: | 12 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant is a 43-year-old man who was injured in a motor vehicle accident; claimant a delivery driver; stoic demeanour; insurer submitted accident a low-speed collision and injury to claimant unlikely; past economic loss; vocational capacity; loss of superannuation benefits; Fox v Wood damages; Held – award for claimant’s legal costs and disbursements; award for damages of $800,000, including statutory benefits paid; on the issue of liability for the claim, 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. |
| determinations made: | CERTIFICATE OF DETERMINATION 1. I assess the Claimant’s legal costs and disbursements in accordance with the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet in the sum of $44,727.40. 2. On the issue of liability for the claim 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. 3. I specify the amount of damages for this claim as $800,000 which includes the statutory benefits paid by the insurer. 4. 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 $44,727.40 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 43-year-old man who was injured in a motor vehicle accident on 31 January 2019. The insurer has admitted breach of duty of care on the part of their insured with no allegation of contributory negligence. The insurer has paid past wage loss totalling $161,122.74 which includes an agreed $22,226 of Fox v Wood payments for which the claimant is entitled to credit in any calculation of past economic loss.
The only matters requiring assessment are past and future economic loss as the claimant has been found to have a degree of permanent impairment which is not greater than 10%.
It is appropriate to, briefly, deal with the claimant and the medical material prior to assessing the past and future economic loss suffered by the claimant.
The claimant
The claimant is a remarkable man. I accept absolutely every word he said as being completely true, without embellishment and coloured only by a very stoic demeanour which he displays.
Prior to the accident he was in good health, working very long hours in the physically difficult occupation of a delivery driver. This was a position which the claimant was well suited by reason of his educational and vocational experience.
The claimant basically has no formal qualifications. He has completed secondary education only. He has a Certificate 3 as a Fitness Instructor and a driver’s licence.
His whole professional life has been centred around his capacity to undertake physical work. After leaving school he worked as a Packer in Franklins. He was a Freight Handler at Bankstown Airport. He worked at a petrol station and convenience store and, as an Auction Room Assistant at Pickles Auction, Delivery Driver at Woolworths and, at the time of the accident as a Freight Handler with Star Track. He holds no other qualifications nor does he have any experience in vocations that, basically, do not require an able bodied individual.
The claimant states, and I accept without hesitation, that he continues to be significantly troubled as a consequence of the injuries and disabilities following the motor vehicle accident.
He is, as I have said, a remarkable individual for the stoicism he displays, a resolute determination to return to some type of employment notwithstanding significant and ongoing physical limitations and shows an optimism for the future which, as a result of his post-accident disabilities, is in reality, quite bleak.
Medical material
10.Whilst the insurer submitted that the accident was of such a low speed collision that any injury to the claimant was unlikely this is not borne out by the medical material. In the insurer’s original submissions dated 11 February 2022 they sought to rely specifically on a report of Dr R. Mitchell dated 20 April 2021. This report noted that he was working on a full time basis as a Freight Handler at the time of the accident and was off work for some months following the accident before returning briefly and then ceasing work in June 2019. The report contains a number of inconsistencies or assertions which are not back up by any material. In particular he notes that:
“The lower back condition appears to be more due to his work related lifting incident described as occurring in 2001.”
This was clearly not so. The claimant had been working in physically arduous
occupations for more than a decade before the accident.
11.In any event the report of Dr Mitchell goes on to say:
“With no evidence of significant injury in the neck or back the prognosis should be reasonable providing any further potentially aggravating fixed spinal postures or activities are avoided.”
12.In any event this report supports the claimant’s contention of ongoing problems to his neck, back and right shoulder by stating:
“Mr Phillips has a current capacity for suitable work that would avoid any aggravation of the reported symptoms and providing the following precautions are available…”
He then goes on to advocate physical activities undertaken below mid chest height particularly if repeated or sustained in nature as well avoiding fixed and awkward spinal postures including unsupported spinal bending or frequent twisting of the lower back.
13.The claimant was assessed by I. Cameron in respect to permanent impairment and was found to have soft tissue injuries to his cervical, thoracic and lumbar spine as well as his right shoulder and right hip. This report noted:
“Mr Phillips has continuing symptoms. There are also some disabilities.”
14.The report also noted a reduced range of motion at the cervical spine, thoracic spine and lumbar spine. Of more significance is the report of Assessor Home dated 26 August 2019 in which there was a finding of a “non-minor injury”. Of most significance in this report is his finding in respect to the cervical spine which identified a right sided disc injury with complaints of right sided neck pain and clinical findings of restricted motion to the right side.
15.The report of Dr E. Gehr dated 25 January 2021 deals in detail with the material provided with from his treating psychologist, pain specialist and neurosurgeon. This report noted that, some 2 years since the accident, no improvement, a condition of which will deteriorate and an observation that:
“he is not able to return to his employment with Star Track because of his ongoing problems with cervical spine and right shoulder.”
This report, somewhat pessimistically, states:
“He has zero capacity for his current employment.”
16.I accept the general tenor of the medical material, particularly the reports arranged by the Personal Injury Commission, that the claimant continues to be troubled by ongoing physical restrictions. He is a relatively young man of 43 year of age and, noting the very physical nature of his pre-accident employment, will continue to have some difficulties consequent of the sequalae of the accident.
Past economic loss
17.The claimant submits that past economic loss ought to be allowed in the sum of $1,410 per week for about 12 months after the accident and thereafter at $2,500 per week less the statutory benefits paid. To these figures need to be added loss of employer’s superannuation contributions.
18.Whilst I accept the claimant as a witness of truth I do not accept the assumptions on which the past loss of earnings are calculated as was submitted by the claimant.
19.As the insurer points out at the assessment conference the claimant’s earnings were not at this level. Further, they do not take into account any residual earning capacity which the claimant has.
20.As the claimant states at the time of the accident he was employed as a freight handler at Star Track and had been so employed since about September 2017. He was a permanent employee.
21.He identifies pre-injury weekly hours of between 50-60 hours per week and notes the role was fairly fast paced and labour intensive. He identifies pain in his right shoulder, back and hip as well as anxiety following the accident and noting his precarious employment circumstances. I accept these as reasonable sequelae of the accident.
22.Following the accident in January 2019 he did attempt to work but noted difficulties he had. In May 2019 he experienced increased neck and shoulder pain symptoms at work and has been unable to work since. He was kept on the books until mid February 2021 at which time his employment was terminated.
23.The insurer has made payments to the claimant calculated on his pre-injury average weekly earnings totalling $161,122.74. The amount of tax paid on this figure (Fox v Wood) is agreed as $22,226.
24.The material bears out a net income at the time of the accident of about $1,300 per week. The claimant has attempted numerous work positions and applied for numerous jobs including retail positions with JB Hi Fi, performing some tasks with Door Dash (essentially delivering meals and groceries) and some delivery work with Amazon. These positions did not last long consequent on the claimant’s post-accident disabilities.
25.I accept the insurer’s contention that the claimant does have a residual earning capacity. I do not accept the claimant’s submission, notwithstanding the claimant stated intention that “within a few years I would also be able to secure a team leader or team supervisor role”, as being his most likely employment circumstances but for the accident. That said, I do accept the claimant to have been an enthusiastic, hard working and dedicated employee who would always be in demand with employers and perform tasks in a secure and lucrative industry.
26.In my view it is appropriate to provide a buffer in respect to past economic loss noting his earnings at the time of the accident of in the order of $1,300 per week, his earnings since the accident which have been somewhat superimposed on this remains a residual earning capacity which, whilst difficult to identify in an individual with such a limited vocational opportunities, nevertheless is a factor which ought to be taken into account. Noting it has been some 4 years and 3 months since the date of the accident and also factoring in the past loss of employer superannuation contributions, I assess the claimant’s past economic loss in the sum of $250,000. I note from this figure the insurer will seek repayment of their past loss of earnings in the sum of $161,122.74.
Future economic loss
27.The insurer submitted that in light of Dr Mitchell’s report and Assessor Cameron’s certificate it is difficult to reconcile that the claimant has a claim for future economic loss where he has been found to only have sustained soft tissue injuries and has a WPI of 0%. The insurer submitted that future economic loss ought to be zero. As an alternative at the assessment conference the insurer submitted that a very small buffer, reflective of perhaps 10% impaired earning capacity, ought to be allowed for future economic loss. Contrary to this, the claimant submitted that an allowance of between $1,000 and $1,500 net per week ought to be allowed to age 70 noting increases in CPI and the loss of employer superannuation contributions. The report of Mr Ting supports the claimant’s contention that he has suffered a significant reduction in his earning capacity. In the report dated 3 May 2021 he notes the physical and emotional sequelae of the subject accident has impacted negatively on his ability to participate in activities of daily living. He goes on to point out that his ongoing treatment needs, physical restrictions, emotional difficulties, persistent neck pain, poor sleep hygiene and loss of a clear vocational goal have resulted in his low motivation to consider work. That said, the report in my view, quite optimistically states:
“Mr Phillips demonstrates a residual physical capacity to perform sedentary or light work for 8 hours per day or medium work for 5 hours per day in selective work environments. He should avoid tasks that require repetitive turning, bending or twisting of the neck.”
He goes on to identify other tasks to avoid including reaching above head level, explosive strength, repetitive lifting, lifting from low positions, repetitive bending of the trunk and the like.
28.The difficulty for Mr Phillips is that all his employment positions have basically required these activities.
29.That said, and as I have indicated above, I find the claimant to be a hard working and resilient man. He has a work capacity and, with the effusion of time, has some reasonable prospects of re-training or obtaining employment within his physical limitations.
30.That said, I consider he has basically suffered an impaired earning capacity reflective of about 50% of his pre-injury earnings. This would give rise to a figure of loosely based on about $650 or $700 per week. Noting the somewhat uncertain and vague basis that such calculations would necessarily involve I concur with both parties that it is appropriate to provide a buffer for future economic loss reflective of the aforementioned incapacity.
31.Noting that such a figure ought to be calculated to about age 67 and noting that loss of employer superannuation payments would accrue at about 13% on future wage losses, I assess future loss of earning capacity, as a buffer, in the sum of $550,000.
Assessment of Damages Summary
32.I assess the claim as follows on the findings set out above: Economic losses
·Past loss of earnings (incl. superannuation and Fox v Wood) $250,000
·Future loss of earnings (incl. superannuation) $550,000
Total of economic losses and non-economic loss $800,000
Total Damages Assessed $800,000
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
PAWE payments by insurer $161,122.74
Conclusion
Costs and Disbursements
33.I assess the Claimant’s legal costs and disbursements in accordance with the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet in the sum of $44,727.40.
34.On the issue of liability for the claim 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.
35.I specify the amount of damages for this claim as $800,000 which includes the statutory benefits paid by the insurer.
36.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 $44,727.40 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
· Motor Accident Injuries Act 2017
· Motor Accident Injuries Regulation 2017
0
0
0