Potter v Allianz Australia Insurance Limited
[2022] NSWPIC 470
•16 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Potter v Allianz Australia Insurance Limited [2022] NSWPIC 470 |
| Claimant: | Nathan Potter |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Robert Foggo |
| DATE OF DECISION: | 16 August 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Collision between motorcycle and motor vehicle; both parties lived on the street where the accident occurred; motor vehicle emerging from a concealed driveway known to the claimant; allegation claimant was speeding and in a highly un-alerted state; conflicting expert evidence; Podrebersek v Australian Iron and Steel Pty Ltd and Council of the City of Greater Taree v Wells considered; Held — just and equitable that claimant’s contributory negligence be assessed at 0%; pre-existing condition; impact on entitlement to non-economic loss and loss of earning capacity; claimant’s venous condition made significantly worse by the motor vehicle accident. |
| determinations made: | 1. On the issue of liability for the claim, Allianz’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. 2. There was no contribution by the Claimant to the cause of the motor vehicle accident. 3. I specify the amount of damages for this claim as $502,581.28. 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 $63,630.64 inclusive of GST. |
INTRODUCTION
The claimant had finished his shift as a chef at the Grange Hotel Wyoming and was riding his motorcycle along Faunce Street, where he lived, when he was involved in a collision with a vehicle emerging from a driveway on his left.
The insurer has admitted liability on behalf of the driver of the vehicle but contends that the claimant was guilty of contributory negligence.
WHAT, if any, is the extent of the Claimant’s contributory negligence?
On 12 December 2017, the claimant completed an Application for personal injury benefits. At Section 3 he described the accident as follows:
The car was approaching the end of their driveway. They stopped so I kept going the car then proceeded to pull out in front of me.
The claimant’s statement at pages 13 – 14 of the claimant’s bundle, made on 24 November 2020 recounts what happened as follows:
7. … It was about 9 PM. The Defendant drove out of the driveway onto Faunce Street, Gosford. The front of the Defendant’s car hit the front of my bike and I was thrown over the handlebars. I believe my left foot came into contact with the handlebars when that occurred. I remember seeing the Defendant’s vehicle come out of the driveway and then stop. I thought he had seen me and had stopped to let me pass. Then just as I was going past the front of his vehicle suddenly moved forward causing the accident. I did not have time to think about what was happening when the impact occurred. My first memory of being aware that the accident had happened was just as the impact occurred. I realised it was going to be bad. I remember going over the bonnet of the car and landing on the roadway.
On 22 January 2018, the insurer issued a Liability Notice which made no allegation of contributory negligence on behalf of the claimant. It was not until 19 June 2020 that the insurer issued a further Liability Notice, alleging that the claimant was guilty of contributory negligence. Page 3 of the Liability notice explained to the claimant that
We have made this determination on the basis of the following information:
As outlined in the Police report and Accident report form from our insured driver there is no indication you attempted to slow down as you proceeded over the crest of the hill on Faunce Street. It is considered a reasonable person would have known as they came over the crest of the hill both their and any other motorist’s view of the other would be obstructed. By not slowing down, you have failed to take care of your own safety. It is considered if you had slowed your speed as you came over the crest the accident could have resulted in less of an impact or been avoided completely therefore we have assessed you as being contributory negligent in this matter.
We consider your contributory negligence to be 20% based on the following contributory negligence
allegation:
- Failure to take due caution and travelling at a speed not safe in the circumstances.- Failure to take care of your own safety.
The driver of the car which was involved in the accident was driven by Abraham Matthews. On the day following the accident, his comprehensive insurer recorded his description of the incident as follows:
I was entering the road from a driveway. A motor bike was passing and I collided with him. I didn’t see him coming. I was coming out of the driveway and did not see the motorcycle and we collided.
In his Accident Report Form, dated 19 January 2018, Mr Matthews described the collision as follows:
I was driving out of the driveway of 93-95 Faunce St West. When I stopped to check for traffic before entering the road, there was no signs of any vehicles on the road. Just as I started to move my car to enter the road, a motorcycle appeared at the right side of the road at a high speed and hit the front of my car at a 90 degree angle. I had already stopped my car as I realised that a motorcycle was coming. My visibility to the right side of the road was not more than 15 meters as there is a big slope beyond 15 meters. The motorcyclist was riding at a speed much higher than one would ride when riding a steep hill where one cannot see ahead. Therefore, the motorcyclist must not have got enough time to brake upon seeing my car emerging from a concealed driveway, which has contributed to the crash.
Mr Matthews then made a further statement, dated 25 July 2020 as to how the accident occurred to an investigator retained by the insurer:
34.I started my motor vehicle and slowly declined down the steep driveway of the unit block to reach the driveway entrance to enter Faunce Street West.
35. The time of night presented as being dark, the headlights on my vehicle were switched
on, providing adequate vision in the evening. There is limited street lighting around the
general area of the unit driveway on Faunce Street.
36. The weather was fine and the roads were dry.
37. I slowly drove down the drive with caution because of my experience in living at this
address.
38. I reached the entrance to Faunce Street and stopped my vehicle. I inched slowly
forward, stopping every metre or so because of the difficult sighting on Faunce Street.
39. I reached appoint whereby the front of my vehicle was approximately 1.5 metres from
the apron of the driveway. This distance allows me to have a reasonable look for traffic
travelling west on Faunce Street.
40. I was at a complete stop at this distance, I had my foot on the brake and was highly alert
and aware of the roadway.
41. I was focusing to my right, looking for traffic that was coming up the hill on Faunce
Street.
42. I suddenly saw a motorcycle headlight appear over the hill, I knew that the rider of this
motorcycle was travelling at a greater speed than the speed limit of 50 kilometres per
hour.
43. Between seeing the motorcycle headlight and the time and point of impact was less
than 2 seconds. I saw the rider of the motorcycle, collide with the front part of my stationary Subaru.The statement also records that Mr Matthews received a summons from the police in respect of the collision in April 2018, for an offence which he describes as “grievous bodily harm to the rider of motorcycle.” The statement also records that he was convicted, find $1000, placed on a good behaviour bond for 12 months and had his driving licence suspended for 12 months. Mr Matthews concludes “I believe that the penalty issued to me was unjust. The speed of the rider as he was travelling west on Faunce Street was definitely in excess of 50 kilometres per hour.”
The oral evidence concerning liability
10. Counsel for the insurer made it clear to the claimant, before questioning him on the circumstances of the accident, that insurer did not allege that he caused the accident. The claimant agreed that he lived in the street where the accident occurred for about 5 years, and he was aware of the driveway from which the vehicle emerged, and that it was concealed. He agreed that a bike rider had “to be careful because you were more vulnerable on a bike.” He said that the only near miss he had in the area near which the accident occurred was when a bush turkey ran out onto the road, and that he had not seen any other motor vehicle accidents take place there.
11. It was put to the claimant that he did not recall precisely how the motor vehicle accident occurred, and that he had told Dr Glancey (page 69 CB) that the accident was a blur. The claimant said that the lead up to the accident was a blur, but not how it actually happened. He did not agree that his only recollection was that the vehicle was on the roadway.
12. The claimant was shown the diagram at page 102 of the insurer’s bundle, forming part of the report of Mr Griffiths. He agreed that the vehicle was in the position on the diagram at the time of impact, but that it may be out by half a metre. He said he was not sure whether the vehicle had stopped at the time of impact.
13. The claimant denied that the differing accounts made in his 2 statements meant that he was totally confused. The driver’s statement of 25 July 2020 as to how the accident occurred was put to the claimant. The claimant said that he believed he had seen the driver when he stopped at the entrance, but that he did not believe that the driver inched slowly forward. He denied that he was doing any excess of 50 km an hour, and did not agree that his speed, as calculated by Mr Griffiths, was 65 to 70 km an hour. The claimant said that he could not tell whether, if he had moved 20 cm to his right, that he would have avoided the accident, and he denied that he was not keeping a proper lookout.
14. Mr Matthews was then questioned by counsel for the insurer. He agreed that he had telephoned his comprehensive insurer, AAMI, the day after the accident and that he had not mentioned seeing the other vehicle. Mr Matthews said that he drove out of the driveway, the vision there is not clear and he did his checks and that “I only saw him at the last second or two.” Mr Matthews said that what he meant in his phone conversation with AAMI about not seeing the other vehicle, was that he did not see the motorcycle early enough to avoid the collision, and that his vision was very difficult from where he was sitting and that he had only seen the motorcycle one or 2 seconds before the impact.
15. He said that he was leaving where he lived to go to a friend’s house and was intending to make a left-hand turn.
16. He told Ms Welsh that he was intending to turn left and that his vision to the right was blinded unless he drove a bit more forward, and that he was about to turn. He denied that he had music on in his vehicle, and although he had been only licensed in New South Wales for year, that he had held licence in India since 2004.
17. Ms Welsh put it to him that he had very little memory of seeing the motorcycle before the collision. He responded that he saw headlights less than 2 seconds before the impact. He denied that he saw the motorcycle as the accident occurred but said that it was less than 2 seconds between seeing the motorcycle and the collision. It was put to him that he could not say how fast the motorcycle was going. He responded that it appeared to him to be going fast, but that he did not measure the speed.
18. Ms Welsh put to Mr Matthews that he stopped at the end of the driveway before going onto the side of the road. He replied that his vision was blocked by the driveway. She suggested that he stopped in the parking lane. He replied “I stopped several times, at different places, I drove a bit forward, I’m always very careful. I stopped and then moved onto the roadway.”
19. It was put to the witness that he had not noticed the motorcycle at this time. He responded “I was sure it was clear.” He agreed that it was 10 PM or thereabouts when the accident happened, and that the traffic was light. Ms Welsh put to him that he did not remember seeing headlights. He responded that it was less than 2 seconds before the impact that he saw the headlights. He added “I feel responsible for this accident but there are other factors.”
20. Ms Welsh put to Mr Matthews that he told AAMI that he did not see the motorcycle. He responded “I don’t remember, it was just the day after the motor vehicle accident, I was in a state of shock and I didn’t know exactly what I meant, I would have used better words.”
21. The contents of paragraph 39 of his statement of 11 August 2020 were put to Mr Matthews. He said that the statement meant that he stopped before proceeding onto the roadway, and that he did stop. He was asked to read paragraph 39 and to read paragraphs 40 and 41 of his statement.
22. Ms Welsh asked Mr Matthews whether he had entered onto the roadway, or whether he was on the parking lane. He responded “I normally stop several times.” He said that he was stationary on the roadway for less than a second and that he saw the motorcycle between one and 2 seconds before the impact.
23. Mr Matthews said that when he saw the motorcycle he was not moving. Ms Welsh put to him that this was because he saw the motorcycle and hit the brakes. He responded “I’m not sure.” It was put to him that the motorcycle was there and that he had stopped. He responded “I wasn’t driving when the impact happened.” It was put to Mr Matthews that the accident occurred in the parking lane, and he said that the accident occurred on the road. Ms Welsh put to the witness that there was no sensible reason to stop the car on the roadway. He responded that “it wasn’t a long stop.”
24. He was asked whether he was looking to headlights and responded that “I checked in both directions.” He was asked why he checked on the left-hand side and responded “I normally check both sides – it’s a standard procedure, my visibility to the right is limited.”
25. He was asked where he was the first time he saw the motorcycle and responded that his back wheels were on the driveway. It was put to him that he moved further forward onto the roadway after he should have seen the motorcycle. He responded “I can’t say, I believe I had checked properly.”
26. It was put to him that he had braked because an accident was occurring or about to occur. He responded “I was sure it was clear, that’s when I saw the motorcycle.” It was again put to him that he applied his brakes as the accident was occurring. He responded “That’s probably right.”
27. It was put to him that the motorcycle had no time to do anything. He responded “that was the same for me as well.”
The expert evidence
28. Michael Griffiths of Road Safety Solutions provided a report to the insurer’s solicitors on 30 July 2021. He analysed the available material and provided an expert report as to how the collision between the claimant and Mr Matthews occurred.
29. At page 34 of his report (IB page 104) he deduced that the car had not commenced turn and that the car was approximately at right angles with the left side motorcycle when they collided. Using various reaction times, he calculated that the claimant had between 8 m or 15 m available to undertake a steering manoeuvre into the right to avoid the collision. He concluded that the claimant was travelling faster than 50 km/h or in a highly unalerted state, not maintaining a lookout ahead.
30. The solicitors for the claimant obtained an expert report from Ms Gaffney of Australian Road Research Board on 21 January 2022. She also analysed all of the available material relating to the collision. At pages 28 – 29 of her report (pages 659 – 660 CB) she agreed with Mr Griffith that there was no evidence of the claimant breaking before impact. She disagreed with him that the claimant could have steered his motorbike around the vehicle, because he had seen the vehicle stopped and did not believe that it represented a danger until it was too late to attempt to manoeuvre his motorbike. She concluded from her momentum analysis that the motorbike was travelling about 40 km an hour and that the vehicle remained stationary until the motorcycle began to pass, at which time it moved forward and collided with the bike. She also disagreed with Mr Griffiths description of the crash as a shallow impact. She also disagreed with his estimates of speed, and her momentum analysis was that the motorcycle was travelling at about 41 km an hour and the Subaru was travelling at about 3.2 km an hour. She also found that the speed estimate by Mr Griffiths was not consistent with the level of injury sustained by the claimant. Her analysis was that the claimant’s account of observing the vehicle emerge from the driveway and stop , and then commence moving again immediately before impact was consistent with version provided by the driver of the car, and that the claimant was most likely alert and aware of the roadway ahead of him.
31. Both experts then provided further reports which, after referring to the other expert’s report, made no change to their conclusions or opinions.
The parties submissions on contributory negligence
32. Counsel for the insurer submitted that the claimant’s case that the insured driver moved out from the driveway, stopped, failed to see him, then moved forward and collided with his motorbike, was not his version at the asessment conference. He submitted that the claimant had conceded that the other vehicle was stationary at the time of impact and that the driver of the car was unshakeable in his evidence. He also submitted that the claimant’s expert based her report on the claimant’s description of the accident. It was submitted that the claimant could have moved to his right two centimetres and avoided the collision and that there was contributory negligence on the part of the claimant. He submitted that the expert evidence of Mr Griffith established that the claimant was either travelling too fast, and above the applicable speed limit, as well as not keeping a proper lookout.
33. Counsel for the claimant pointed out that Mr Matthews had consistently stated that he only saw the claimant’s motorcycle between 1 to 2 seconds before impact. She also referred to Mr Griffith’s markings on the aerial photograph at page 32 of his report (page 102 IB), pointing out that the path of the claimant’s motorcycle depicted by Mr Griffith in that photograph had the claimant riding in the gutter, rather than in the middle of his side of the road.
Discussion
34. No challenge was made to the credibility of either the claimant or Mr Matthews. This accorded with my evaluation of them both during their questioning, and taking into account their written statements.
35. Mr Wilson’s questioning of the claimant concerning how the accident occurred was preceded by questions as to the claimant’s prior health, his current treatment, his employment and his wish to work only 3 days per week. During all of his oral evidence, the claimant was a very impressive and patently honest witness. He was embarrassed when it was put to him that he was described a “valued employee” by his manager. His manner in answering questions was unfailingly polite and deferential. His denial that he was travelling in excess of the speed limit, and that he was travelling at a speed which Mr Griffiths had estimated in the region of 65 – 70 km/h was polite, but firm. He was clearly uncomfortable, as Ms Welsh submitted, in the setting he found himself in in the asessment conference. He was unassertive and at pains to avoid confrontation. This was not because he was anything other than completely honest, but rather, because of his relaxed nature and engaging manner.
36. I accept the claimant’s evidence that he was doing 50 km an hour or less. Mr Matthews observation that it appeared to him that the claimant was travelling fast, made in a period less than 2 seconds prior to impact, cannot be accepted as a reliable assessment.
37. Although I found Mr Matthews to be a truthful and honest witness, his oral evidence, during which he sought to provide an explanation of how his telephone conversation with AAMI should be interpreted, and that he would have used “better words”, was unconvincing. I do accept that, as he said in his oral evidence he did not see the claimant until one or 2 seconds prior to impact. However, it was clear from his answer to questions that from the time he emerged onto the roadway, until he saw the claimant 1 to 2 seconds prior to impact, that he has no recollection of what occurred between starting to enter onto the roadway and the impact.
38. When it was put to him by Ms Welsh that he did not notice the motorcycle, the claimant said “I was sure it was clear.” When asked specific questions as to where he was or what he did immediately prior to the impact his answers were “I normally stop several times,” “I normally check both sides of the road – it is standard procedure.” It is therefore evident that Mr Matthews has no recollection of what he did immediately prior to the impact, apart from the last 2 seconds or less when he suddenly saw the claimant, and as he conceded to Ms Welsh, applied his brakes as the accident was occurring. Clearly, although he denied having music on in the car, his attention was not on driving his vehicle. Otherwise, he must have seen the claimant well before the one or 2 seconds before the impact. He either did not look because he was engaged in doing something else, or because his mind was elsewhere. He may well have looked in the claimant’s direction, but his mind did not register the fact that the claimant was travelling towards him.
39. Accordingly, the answers which Ms Welsh elicited from Mr Matthews at the asessment conference support the claimant’s version of how the accident occurred.
The expert evidence
40. I find the report of Ms Gaffney to be more objective than that of Mr Griffith. I agree with her criticism of Mr Griffith’s report at pages 28 – 29 (659 – 660 CB) that his estimate of excessive speed is incorrect It appears to me that Mr Griffith has assumed that Mr Matthews had seen the claimant at the first opportunity that was physically possible, whereas as a result of his oral evidence the asessment conference, I find that he had only become aware of the claimant immediately prior to impact.
41. Mr Griffith’s conclusion that the claimant was not keeping proper lookout ignores the claimant’s uncontroverted evidence that he saw Mr Matthews vehicle, that it was stationary, and that he assumed that it would remain so until immediately before the accident when the vehicle commenced to move.
42. I am not persuaded by Mr Griffiths’s report that the claimant had any real opportunity to take evasive action. As Ms Gaffney points out,
I agree with Mr Griffiths that a steering action to the right may have resulted In the crash being avoided. However, avoidance cannot be considered in a vacuum, particularly for a motorcyclist. Rapid steering and braking on a 2-wheeled vehicle can be wrought with danger; such vehicles can become unstable with very minor changes in dynamics. It is not sufficient to state unequivocally that right-hand steering or braking on a crest such as this was a safe option. In this case, the rider evaluated the situation and assumed it was safe to proceed ahead. (CB 660)
Conclusion: contributory negligence
43. In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494 the High Court of Australia determine that:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
44. Podereberesk, which remains the leading authority on the general principles of contributory negligence, requires that findings of contributory negligence are to be made by assessing relative culpability and causal potency.
45. Basten JA in Council of the City of Greater Taree v Wells [2010] NSWCA 147 at 107 observed that in respect of contributory negligence,
“The assessment of the plaintiff’s conduct involves a quite different exercise. A critical difference between the assessment of negligence and the assessment of contributory negligence is that the purpose of the latter assessment is to allow for an apportionment of responsibility for the injury by a reduction in the damages recoverable by the plaintiff “to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”: Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1). That is a different exercise from the determination of whether or not the defendant has been negligent.”
46. The Court of Appeal in Wells unanimously rejected the challenge to the findings of Charteris DCJ that plaintiff had not been guilty of contributory negligence. The plaintiff was a cyclist who collided with a chain which had been strung across the mouth of the pathway leading into Queen Elizabeth Park. His Honour found that a person in the plaintiff’s position could very easily have failed to detect the presence of a chain. He accepted that some individuals in the plaintiff’s position may have detected its presence, but many prudent riders would not have, and found that the defendant had not discharged the onus of establishing that that plaintiff had been guilty of contributory negligence.
47. The Court of Appeal rejected the argument that the plaintiff/respondent’s failure to see the chain demonstrated that he was not keeping a proper lookout, and failed to take reasonable care for his own safety.
48. Mr Matthews was emerging from a driveway which he knew, or ought to have known, had “an unacceptably high level of hazardousness by way of visual obstruction” (Mr Griffiths IB page 89) and did not see the claimant until less than 2 seconds prior to impact. Although the claimant also was familiar with this hidden driveway, having lived in the street in which the accident occurred for some time, he had identified the risk of a vehicle emerging from the driveway by seeing it, stationary, as he approached. I find that he was entitled to and did believe that Mr Matthews had seen him and was allowing him to pass. Mr Matthews then moved forward.
49. I accordingly reject the insurer’s contention that the claimant was not maintaining a proper lookout.
50. I also accept the claimant’s evidence and Ms Gaffney’s opinion that the claimant was not exceeding the speed limit. I also accept that the claimant realistically had no opportunity to avoid the accident. In addition, in accordance with the principles established by the Court of Appeal in Wells, although some riders may have been able to avoid a collision in the circumstances, the insurer has not discharged the onus of establishing that the claimant was guilty of contributory negligence.
51. I therefore find that it is just and equitable that the claimant’s share of the responsibility for the accident be assessed as zero percent.
Non-economic loss
52. Both parties made succinct written and oral submissions as to the appropriate award of non-economic loss. The claimant argued for an award of $300,000, with the insurer contending that an award of $200,000 was reasonable.
53. The claimant was conveyed to Gosford Hospital by ambulance after the accident, where he was found to have fractured left ankle, suffered skin loss and tissue damage and a large laceration to the left leg. X-rays demonstrated fractures of the tip of the lateral malleolus and an oblique fracture to the medial malleolus. The fractures were reduced and fixed with screws and wires. He was discharged from hospital in a back slab on crutches on 6 December 2017.
54. For 6 weeks he was on crutches, and then his plaster was discarded and he utilised a CAM boot for 3 weeks, partially using crutches and then undertook physiotherapy. His left foot and ankle were very swollen and he found walking very painful.
55. The claimant’s partner was pregnant at the time of the accident, and his daughter was born in June 2018. The family had planned to move into a new house, and the claimant was unable to assist in effecting the move, relying on family and friends.
56. He found difficulty upon his return to work at the Grand Hotel as a chef because of the prolonged standing. Dr Burke, his vascular surgeon prescribed compression stockings because of the continual swelling, and he continues to wear them to the present time and will undoubtedly do so for the rest of his life.
57. During the assessment conference, the claimant rolled up his trousers showed the compression bandage he was wearing. He said that the leg was not very swollen at that time, because he had not engage in any actual physical activity in attending the assessment conference. My observation was that despite this, his leg was significantly swollen.
58. He resigned his employment with Grange hotel in November 2019 because he could not cope with the work, having already attained employment with Wideline Windows & Doors in Tuggerah as a delivery driver. Another employee regularly assists him, and the work is heavy at times. He has to be careful to ensure that he does not stumble or trip.
59. Recently he had to take a day off work because he had to work in the yard for a full day, loading trucks and at the end of the day his ankle was sore and swollen. Although he has occasions when his ankle is pain free, it still feels uncomfortable and being on his feet for too long, walking on uneven ground for pivoting or twisting on his left foot causes him pain.
60. The insurer’s submissions in relation to the effect of the claimant’s pre-existing problem with varicose veins were confined to future economic loss. In my view they do require to be considered in non-economic loss as well. This is because the claimant’s pre-existing vascular problems may have caused him pain and suffering had the accident not occurred.
61. The medical opinions of Dr Niesche, Dr Bourke and Dr Conrad are in agreement that the accident aggravated the claimant’s pre-existing venous condition. Dr Niesche at page 3 of his report (IB 259) believed that had the accident not happened and the claimant continued to be a chef there “would be a gradual increase in the number of varicosities in the swelling of the left leg, with the future possibility of chronic venous insufficiency and ulceration, and which may have required further surgery.”
62. On the following page he expressed the view that if the accident had not occurred that he should avoid occupations which involve prolonged standing as this “would increase the likelihood of progression of his swelling, varicose veins and long-term development of chronic venous insufficiency with possible ulceration.”
63. The operation report of Dr Gray, the orthopaedic surgeon, (CB44) whilst focusing on the repairs to the fractures of claimant’s ankle joint, also demonstrates the significant and confronting soft tissue damage caused by the accident – “a large leg laceration over the medial aspect of the left mid and distal tibia”; “significant ankle ligament injuries, particularly to his lateral ligament complex, which required stabilisation and repair”; “the saphenous vein was evident in the wound but was intact”; “there was a large cartilaginous loose body present in the ankle joint and this was removed”; “The anterior teller fibula ligament and the capsule was of Dalston torn in mid-substance. We repaired these ligaments with 2 fibre wire sutures.”
64. At page 2 of his report of 3 June 2022 Dr Conrad agrees with Dr Niesche but there was no real evidence of deep vein thrombosis prior to the accident, and that the claimant’s venous condition would have been without further surgery, providing that he used elastic support stockings. His opinion differs from that of Dr Niesche, as he, Dr Conrad, opined that at most, had the claimant continued working as a chef, he would have needed class I support stockings, not the class III support stockings which Dr Niesche believed the claimant would require. Dr Conrad points out at page 3 of the report of 3 June 2022 that with adequate elastic support claimant’s venous condition would have been much slower, and that possibly he would have avoided future complications.
65. After considering the evidence of the treating doctors and those providing medico-legal opinion, it seems to me that the claimant may have been able to continue working as a chef if he used class I stockings, but that a deterioration of his pre-existing venous condition could well have been progressive, whether the accident occurred or not.
66. The claimant is approaching 41 years of age. As a result of the accident he is in almost continual pain and has significant restriction of his agility and mobility. He faces the prospect of venous deterioration that will be significantly worse than had the accident not occured.
67. In my view, the amount of $300,000 is an appropriate award for non-economic loss.
PAST WAGE LOSS AND LOSS OF SUPERANNUATION
68. The insurer’s written submissions state that it does not dispute the claimant’s assessment of past economic loss, which submits a amounts to $24,648. However, the claimant’s most recent written submissions indicate the total is $24,848. The insurer does not comment on the loss of superannuation of $2,733.28 pressed by the claimant. I have not been advised of the amount of income tax paid by the claimant on the statutory benefits paid to him.
FUTURE LOSS OF EARNINGS
69. The claimant’s initial submissions argued that as the claimant was unable to work full-time as a chef, and that his continued involvement in the labour market was compromised by his significant pain. In subsequent written submissions, it was submitted that although the claimant was earning $1,000 net a week in his current employment, he was not fit for unrestricted duties, and that he will have great difficulty maintaining employment over his lifetime. As with the previous submission, it was claimed that the appropriate estimation of his future loss of earnings was best approached by accepting that the claimant will have a 50% reduced earning capacity over the rest of his working life. On the appropriate tables, and with the usual discount, this amounted to $332,775, with the ensuing loss of superannuation being calculated at $36,605.
70. The insurer’s most recent written submissions concede that the claimant is unable to continue working as a chef, but dispute that is ongoing impairments will be productive of economic loss. This is because it relies on the opinion of Dr Niesche in his report of 27 January 2022 that the claimant “would have been advised to avoid an occupation that involves prolonged standing which would increase the likelihood of progression of his swelling, varicose veins and long-term development of chronic venous insufficiency with possible ulceration.”
71. That is, the claimant, the insurer argues, would have been required to seek alternative employment as a delivery driver because of this condition, and in doing so would be earning more than he had been as a chef.
72. In the alternative, the insurer submits that if it is accepted that the claimant will lose occasional time from work in the future, an allowance of $50,000, inclusive of superannuation, would be appropriate recompense for such future loss.
73. I have found above, in my consideration of non-economic loss, that the claimant’s pre-existing condition of varicose veins may well been progressive, whether the accident occurred or not. However, the medical opinions of the various specialists are in agreement that accident has significantly exacerbated this condition. It is clearly evident that worsening of this condition will be productive of economic loss. That has been the case already, with the claimant having to take days off from his current employment because of his pain and swelling in his leg.
74. Although the claimant, despite his physical limitations, has been able to obtain his present occupation, he carries out his work in considerable pain. The swelling evident in his leg at the assessment conference, on a day when he had limited physical activity, does not bode well for his future long-term prospects in the workforce. Despite Mr Wilson’s suggestions to the claimant that he is a serious contender for promotion, the claimant’s easy-going nature and lack of administrative training, as Ms Welsh submitted, means that the reality is that he will be confined to doing semi-skilled work within his physical capacity. The claimant has significantly mitigated his past and future economic loss in obtaining his current employment, but I find that he does so at a significant ongoing personal cost as a result of the continual pain and swelling in his leg. I find that his desire to only work 3 days a week is not some self-indulgent fantasy, but reflects his daily struggle with pain in getting through is normal work week.
75. The normal process of ageing will exacerbate his pain and swelling and consequent difficulties with maintaining his employment. When this will occur, and the extent of severity of the symptoms, is not something which can be accurately predicted.
76. In assessing the claimant’s future loss of earning capacity, I have had regard to the possible alteration of the nature and remuneration of his employment due to his pre-existing problem with varicose veins even if the accident had not occurred.
77. I also take into account the claimant’s attractiveness as a reliable and honest employee, and one whom perspective employers would be keen to engage, as is evident from the comments of his current employer. This must be tempered with his current significant pain in endeavouring to cope with his current duties which have a limited physical component, and where he is assisted by another employee. In the event that he loses this employment or is unable to continue with it, his ability to obtain employment at a similar rate of pay will be problematical.
78. In my view an award of $175,000, inclusive of the loss of superannuation, appropriately reflects the impairment to the claimant’s future earning capacity.
ASSESSMENT OF DAMAGES SUMMARY
79. I assess the claim as follows on the findings set out above:
Non-Economic Loss $300,000
Economic losses
·Past loss of earnings $24,848
·Superannuation $2,733.28
·Future loss of earnings (incl. superannuation) $175,000
Total of economic losses and non-economic loss $502,581.28
Reduction for contributory negligence of 0%
TOTAL DAMAGES ASSESSED $502,581.28
COSTS AND DISBURSEMENTS
80. I agree with the insurer’s submissions that the conference with counsel on 26 June 2018 is not related to this claim.
81. The total of 4 hours for conferences in my view is appropriate, considering the issues between the parties. The insurer’s submission of 15 August 2022 has correctly calculated the amount of specialist medico-legal reports at $10,663.92.
82. I accordingly assess the Claimant’s legal costs and in accordance with the attached sheet: $63,630.64.
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