Polwarth v Allianz Australia Insurance Limited
[2024] NSWPIC 161
•27 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Polwarth v Allianz Australia Insurance Limited [2024] NSWPIC 161 |
| CLAIMANT: | Robert William Polwarth |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 27 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of damages; liability wholly admitted; claimant a mine worker; allegations of pre-accident injuries overlapping; claim for non-economic loss, past and future economic loss, past and future treatment expenses and past and future domestic care; Held – assessment of damages made in accordance with section 94 plus costs and disbursements as agreed. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 94 and s 94A of the Motor Accident Compensation Act 1999 1. Assessment of the claim for damages made in accordance with s 94 of the Motor Accident Compensation Act 1999 in the sum of $523,770.49 plus costs and disbursements as agreed in the sum of $40,615.96. The insurer is to receive a credit of $22,065 paid weekly benefits and $8,883.33 for s 83 payments. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Mr Robert Polwarth, was involved in a motor vehicle crash on 4 July 2016 whilst riding his motor bike. He was riding on Macquarie Drive near the intersection of Tingira Drive, Croudace Bay travelling home from work. The insured driver failed to stop and give way and proceeded to carry out a right hand turn in front of the motor bike causing the crash.
Mr Polwarth was taken by ambulance to John Hunter Hospital (John Hunter) where he was admitted and treated over the coming six weeks.
Mr Polwarth has made a claim against Alliance Australia Insurance Limited (insurer) the insurer for the at fault vehicle.
The insurer has wholly accepted liability for the claim for common law damages.
Although attempts have been made to resolve the claim between Mr Polwarth and the insurer, the claim was referred to me for assessment.
ISSUES WHICH AROSE
The following issues arose:
(a) what is the nature and extent of injuries sustained in the accident?
(b) Has the claimant established an economic loss past ten weeks after the accident?
(c) What is the claimant's most likely future circumstance but for the accident?
(d) Is there a need for future domestic assistance?
(e) What is the amount for future reasonable and necessary treatment?
What is the nature and extent of injuries sustained in the accident?
At the time of the accident Mr Polwarth was 56-years-old. He is currently 63-years-old, turning 64 years, this year.
During his job as a coalminer, he has sustained several injuries in his workplace. He has also sustained injuries and developed symptoms over the years which he has reported to his general practitioner, Dr Andrew Davey.
Mr Polwarth sustained significant injuries in the crash which include a left C7 superior facet joint fracture; superior N Plate fractures of T2-T5; musculoligamentous injury to his neck, cervical spine, left and right shoulders.
In his discharge summary from John Hunter, it is recorded a 4-wheel drive vehicle hit Mr Polwarth’s motor bike travelling at 70 kilometres per hour. He had a loss of consciousness as he recalls waking in the ambulance.
The clinical notes from John Hunter record treatment of his fractures and list his main complaints as mild headache; left scapular pain; neck pain; and paraesthesia in his left lateral three digits. He was placed in a hard collar with follow ups in coming weeks and recommended attendance to his general practitioner.
When completing his personal injury claim form on 28 May 2021, many years after the crash, at question 22, Mr Polwarth recorded his injuries on the body figure outline as left neck and back.
When asked why he made no mention on the body figure outline to an injury to his neck, Mr Polwarth said he drew the areas of injuries to the best of his knowledge. I do not accept any criticism of Mr Polwarth’s completion of the claim form as this was done five years post-accident and, considering there is a plethora of medical records and reports, it is reasonable to rely on these records rather than markings on a body figure outline.
The insurer relies on the neck injury sustained by Mr Polwarth in 1995 and 1996 and submits that he aggravated his neck symptoms in this incident. They highlight the lack of complaints to various doctors since the incident to neck pain and that there is little reference to treatment for the neck.
A similar argument is made with respect to the left knee injury. There are many references in pre-accident medical to left knee symptoms. Mr Polwarth made several workers compensation claims for injuries sustained at work in the mines.
Mr Polwarth returned to pre-accident duties until around August 2020 when the insurer says, he decided to retire for lifestyle reasons. This is denied by Mr Polwarth.
The insurer further details the many references to Mr Polwarth’s reports to his employer for any issue relating to an injury, incident, or risk within the workplace. Ms Allen described this as hypervigilant behaviour, with a focus on work safety. She submits injuries sustained in subject accident had resolved by 2020. Any ongoing medical complaints were unrelated to the accident and attributable to pre-accident injuries and disabilities.
Mr Polwarth told me his primary disability was his neck. He managed these symptoms by having hot showers before and after work. He struggled with his duties at work, especially duties which required him to look up to carry out inspections.
The insurer arranged for Mr Polwarth to be examined by occupational physician Dr Robin Mitchell on 2 June 2022. The doctor prepared a report which is dated 23 June 2022. The insurer provided the doctor with a raft of documentation listed on page 2 of his report. Dr Mitchell reviewed the pre-accident medical history which he summarized on pages 3 and 4 of the report.
Mr Polwarth told Dr Mitchell he continues to suffer pain in his neck with stiffness particularly when rotating or bending the right neck region. These symptoms are aggravated after repeated or prolonged sitting.
After carrying out a physical examination, Dr Mitchell accepts Mr Polwarth will more than likely continue to have intermittent mild neck pain and stiffness due to the permanent nature of the sequelae of his injuries sustained in the accident.
Overall, Dr Mitchell found Mr Polwarth presentation as pleasant and helpful with consistent and reasonable responses. The doctor noted the minor previous injuries but accepted there were no relevant or significant neck injuries prior to the accident.
The insurer relies on the opinion of neuro spinal surgeon Dr Richard Ferch dated 21 October 2022. Dr Ferch set out Mr Polwarth’s medical history and concluded his past history was otherwise unremarkable. The doctor accepts Mr Polwarth developed persistent neck pain following his bike accident. He notes the neck pain has failed to settle.
The insurer arranged for Mr Polwarth to undergo a vocational assessment. Professor James Bright, registered psychologist interviewed Mr Polwarth and comments on his friendly and cooperative presentation and accepted him as a detailed historian.
Initially, Mr Polwarth’s general practitioner referred him to consultant neurosurgeon Dr Peter Spittaler for treatment. Although the doctor was pleased with his patient’s recovery, he noted the persistence of neck pain. Dr Spittaler felt, as Mr Polwarth’s condition improved, he should be able to return to work in the mines.
Dr Davey advised the insurer that he had treated Mr Polwarth for some time and that he had no pre-injury or illness relating to his neck.
Dr David Gill, orthopaedic surgeon generated a report in December 2020. He has treated Mr Polwarth for a knee injury which occurred 2013. After a thorough examination of both knees, the doctor concluded that both knees are normal and symmetrical.
Having reviewed the medical opinion above, I accept Mr Polwarth sustained injuries in the motor bike crash as set out by John Hunter Hospital and subsequent doctors. He continues to suffer from persistent neck pain which is further aggravated by prolonged sitting or awkward postures. I accept the description by Dr Mitchell that Mr Polwarth’s ongoing pain and disabilities are related to the subject accident with not significant prior or subsequent injury involved.
I do not accept Mr Polwarth’s pre-injury symptoms overlap or relate to the nature and extent of his neck disabilities.
Has the claimant established an economic loss past 10 weeks after the accident?
At the time of this accident, Mr Polwarth was working in the underground coalmining industry in New South Wales with Oceanic Coal at West Wallsend. He has been employed all his life in this industry. He described his position as a mine deputy.
His duties required walking underground, looking up, carrying gas meters and hand tools, riding in underground vehicles over rough terrain. He says the job was physically hard, in particular, placed pressure and strain on his neck and shoulders.
After the accident, he was off work until 10 September 2016. He commenced a return to work rehabilitation programme carrying out light duties part-time. By 4 November 2016, he returned to underground work for two to three hours at a time. On 30 June 2017, Dr Davey issued a work capacity certificate whereby Mr Polwarth was fit to resume full time normal duties.
Mr Polwarth says he struggled to maintain his employment duties as his neck became increasingly painful. He describes difficulties holding his head in one position for any lengthy period of time. He had restricted range of movement and vibrations and bumps in personnel transporters underground caused pain and neck stiffness.
During the assessment hearing, Mr Polwarth told me his coping mechanism was to arrive at work early and stand under a hot shower to free restriction in his neck and relieve the pain.
He says over time, he was finding it hard to continue to work. He continued to have treatment which only temporarily relieved any symptoms. On 18 September 2018, he experienced an aggravation when a work vehicle hit a rut or hole in the roadway jarring his neck.
He continued to experience ongoing exacerbations and aggravations until 20 August 2020 when he resigned from his employment.
His claim for past economic loss initially included an amount of $346,336.00 which was revised before the assessment hearing to an amount of $419,887.00 made up of a weekly nett sum of $2197.50 plus past superannuation loss of $46,187.00. These sums reflect a total loss of earning capacity since Mr Polwarth resigned to the present.
The insurer rejects Mr Polwarth’s claim that he ceased employment because he has no working capacity caused by his injuries.
The insurer highlighted the disagreements in his workplace with management. Ms Allen suggested to Mr Polwarth that the reason he resigned from work was a life-style choice rather than a work incapacity.
The insurer relies on the opinion of Professor Bright. The professor recorded Mr Polwarth told him he had made a “…really good recovery”. They also suggest, Mr Polwarth’s unrelated knee injuries impacted on his work capacity.
They submit that the appropriate award for past economic loss is limited to 9.57 weeks plus a partial incapacity for eight weeks, in the amount of $22,065 plus superannuation of $2,427.
Dr Hopcroft general surgeon was asked by Mr Polwarth’s solicitor to prepare a medico-legal report for the purpose of this assessment of damages. His report is dated 7 September 2022. After examining his patient, the doctor accepts he has ongoing significant work incapacity arising from the accident.
Despite ongoing neck symptoms and restrictions, Dr Davey issued work capacity certificates. However, Mr Polwarth could no longer maintain his pre-accident employment after August 2020.
Dr Mitchell accepted Mr Polwarth had a current capacity for suitable work that would avoid any aggravation of the reported symptoms providing he followed precautions which the doctor listed in summary as managing physical activities below his chest or close to his trunk, manual handling any weight over five kilograms, lifting, carrying, pushing, or pulling actions, awkward and fixed spinal postures.
Dr Ferch says Mr Polwarth was limited in his capacity to tolerate duties at work because of persistent neck pain.
Although Mr Polwarth sustained several injuries at work prior to this crash, I accept the opinion of Dr Mitchell that these reports are insignificant and of a minor nature with no relevant neck injury.
His employment duties required him to look up which meant him tilting his head backwards, duties which Dr Mitchell cautioned against. The environment in which he worked required traversing over rough ground causing aggravation to his neck injury.
I have considered the letter from Mr Richard Gelson, mine manager dated 25 June 2020 a couple of months before Mr Polwarth resigned. I have no evidence this facilitated Mr Polwarth’s decision to resign from his employment. He told me his whole career has been safety with a focus on high risk of injury. This letter was directing Mr Polwarth to undergo a personal risk programme. He says this occurred because the manager believed his reporting of every incident that happened at work would lead to time off work. He says this resolved quickly.
Mr Polwarth was asked about the verbal/written warning dated 10 August 2020. In his second statement dated 20 February 2024, he says this warning followed a realisation he had failed to attend a meeting. He says he regarded this as part of the disagreement with management.
After he resigned Mr Polwarth says he had intended to gain employment with another mine. However, after not working for a few months, he realised his neck symptoms had improved and it was then, he then decided not to seek further employment.
Mr Polwarth comments with respect to the opinion of Professor Bright that he had lost motivation to work. He denies this as he says when he resigned, he intended to apply for work. He says he told the professor but for the accident, he intended to continue to work until his late 60’s.
Mr Polwarth was an impressive witness. He made no attempt to embellish his symptoms or limitations. I accept his evidence which is supported by all the doctors. He did his best to continue to work until his symptoms increased to a stage, he could no longer carry out his mine deputy duties.
I have been persuaded Mr Polwarth’s past economic loss is a total work incapacity from August 2020 to February 2024.
The claimant submits his weekly earnings as of August 2020 was $2,197.50 whereas the insurer has calculated his pre-accident weekly earnings were $1,887.75.
The claimant prepared a table of earnings from 2013 to 2021. The insurer made no objection to this table which I will adopt to calculate Mr Polwarth’s average weekly net earnings. I have calculated the average weekly net earnings as $1,937.20 using 2016 to 2020 from the table.
Mr Quickenden submitted the number of weeks is 181.2. I accept this is a reasonable assessment of the number of weeks since 20 August 2020. The amount for past economic loss is $351,020.64.
Before I published my decision, a message was conveyed to both parties enquiring about the past weekly payments. The insurer told me at the assessment conference it was agreed that the amount was $22,065. However, this amount changed when my message was answered. As this is not agreed, and I was told at the assessment conference the amount of $22,065 was agreed, this amount is the sum which will be added to the past economic loss figure and the insurer is to receive a credit for this amount.
Past superannuation at 11% is $38,612.27 is assessed.
Fox v Wood (1981) 148 CLR 438 is agreed as $7,202.
What is the claimant’s most likely future circumstance but for the accident?
Section 126 of the Motor Accident Compensation Act 1999 (the Act) directs the test of most likely future circumstance be applied to the claimant’s future economic loss assessment.
In updated submissions, Mr Quickenden says the claimant is likely to have remained in the mining industry until his retirement at 66 years of age but for the injuries and disabilities sustained in the accident. He is seeking $218,431 plus $26,211 future superannuation.
Ms Allen says the most likely future circumstance but for the accident is the claimant would have considered retirement and as such, no allowance should be made for future economic loss. Further, she submits the claimant had been working in the mining industry all his working life and in August 2020 he simply had enough after an issue arose at work.
I disagree with both these approaches. Professor Bright carefully considered alternate employment opportunities Mr Polwarth may be capable of considering. I note in his statement, Mr Polwarth responds to these suggestions advising he is not computer literate. He believes any future employer would be cautious employing him with his injured neck.
Mr Polwarth admitted he had not made any attempts to work since resigning notwithstanding his intention when he resigned to continue to work. I accept he has no work capacity to carry out duties which involve restrictions as set out by Dr Mitchell. However, he could have considered further training in workplace safety which he told me was his priority.
I have formed the view Mr Polwarth has a residual working capacity.
His most likely circumstance but for the accident is, he would have continued to work in the mining industry as a deputy miner. He can no longer perform these duties due to accident-related duties which required him to use his neck in a fashion which caused pain and stiffness with restrictions.
A cushion or buffer assessment is relevant in circumstances where earning capacity has unquestionably been reduced but its extent is difficult to assess, see Allianz Australia Insurance v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13.
This is such a case where future economic loss cannot be accurately calculated because the claimant’s future residual earning capacity is uncertain.
Having regard to Mr Polwarth’s age, his years to retirement age and his ongoing injuries and disabilities, the appropriate amount for a buffer for future economic loss and superannuation is $95,000.
Is there a need for future domestic assistance?
In the claimant’s written submissions dated 24 October 2023 there is a claim for future care in the amount of $30,000. There is no supporting submission but rather, just an amount in the schedule.
In the updated submissions there is no amount or claim made for this head of damage.
The insurer anticipated this claim and responded with a submission that s 141B of the Act is not supported. As such no allowance should be made. I agree.
There is no evidence from Mr Polwarth which sets out his claim for future domestic care. He says in his statement he continues to mow the lawn and attend his garden. He says “I thought about paying someone to do my lawns and perhaps other domestic work. However, at this stage I do not believe I need to do this notwithstanding my working in the garden is time consuming”.
There is no support for a need for future domestic assistance. No assessment is made.
What is the amount for future reasonable and necessary treatment?
Past treatment is agreed in the sum of $8,883.33 s 83 payments and $487.25 Medicare payback. There is also a past economic loss repayment amounting to $22,065 for which the insurer is to receive a credit. This amount on the costs calculator sheet has been added to the amount assessed for past economic loss.
For future treatment, the claimant is seeking a lump sum of $15,000 although there is submission to support this amount.
In the updated submissions, this amount has been reduced to $5,000.
The insurer says there is no support to assess any amount for future treatment expenses. They rely on the opinion of Professor Bright. At best they suggest an amount of $500 for future conservative treatment.
I agree with the insurer’s submission. Mr Polwarth told me he has not undergone any treatment for some time. An assessment of $500 is sufficient for reasonable and necessary treatment.
SUMMARY
A summary of the assessment of damages is as follows: -
(a) past economic loss $351,020.64
(b) past paid economic loss $22,065
(c) past superannuation $38,612.27
(d) Fox v Wood $7,202.00
(e) future economic loss $95,000.00
(f) past treatment expenses $9,370.58
(g) future treatment expenses $500.00
(h) total $523,770.49.
COSTS AND DISBURSEMENTS
The costs and disbursements have been agreed which are included in the attached costs calculator.
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