Schenko v QBE Insurance (Australia) Limited
[2023] NSWPIC 507
•25 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Schenko v QBE Insurance (Australia) Limited [2023] NSWPIC 507 |
| CLAIMANT: | Adam Schenko |
| INSURER: | QBE |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 25 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; Motor Accident Injuries Regulation 2017; damages assessment; earning capacity; decision on the papers; no psychological treatment; impaired functioning in left hand; past and future economic loss; calculating loss of overtime opportunities; impaired earning capacity; Held – claimant was owed a duty of care; breach of duty of care resulted in injury; insurer to pay damages. |
| DETERMINATIONS MADE: | CERTIFICATE 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 $33,711.06. 2. On the issue of liability for the claim, QBE’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 $252,000 which includes the statutory benefits paid by the insurer. 4. A statement setting out the Commission’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 35-year-old man who was injured in a motor vehicle accident which occurred on 26 December 2019 whilst driving along Parramatta Road in Granville. The insured’s vehicle turned out from Alfred Street and collided with the side of the claimant’s car.
The claimant had his left hand on the gearstick at the time of the accident and suffered damage to his left thumb.
The claimant is limited to a calculation of past and future economic loss. The insurer has paid statutory benefits of $7,779.38 which includes $2,447 for income tax. Additionally, the insurer concedes that past wage loss ought to include an amount to compensate for loss of employer superannuation contributions of $855.73.
In the submissions for both parties there is about $1 million separating the parties. The insurer submitted that a figure of $25,000 ought to be allowed for future economic loss by way of a diminution of earning capacity. The claimant has submitted that future diminution of earning capacity ought to be allowed at 50% of his alleged current uninjured net earnings with overtime giving rise to a figure of $1,043,253.
At the assessment conference the parties did not wish to either examine or cross-examine the claimant. Accordingly, other than brief submissions, the matter is to be effectively dealt with “on the papers”.
In this regard, it is appropriate to deal with the medical material, and the effect on the claimant of the injury to his left thumb sustained in the accident prior to ascertaining how these injuries have affected his past earning capacity and how they are likely to affect his future earning capacity.
MEDICAL MATERIAL
At the outset it ought to be stated that the claimant has not sought or received any treatment for a psychological or psychiatric injury. The particulars provided to the insurer by the claimant allege an injury to the left hand, left thumb, scarring and psychological injury. The disabilities listed include anxiety, depression, irritability and deterioration of personal relationships. The claimant states that the accident affects him psychologically. He says that he was feeling anxious and depressed months after the accident. There is no other indication from the claimant that there are any ongoing psychological effects.
At the assessment conference Counsel for the claimant agreed that there has been no treatment for psychological injuries sought by the claimant. Notwithstanding that, and following the allegation of psychological injury, the insurer arranged for a medico-legal assessment of the claimant with a psychiatrist, Dr Vickery, who provided a report dated
13 April 2022 who noted that the claimant returned to his pre-injury duties, that there was no psychiatric incapacity, that there was no future treatment required and that there was no diagnosable DSM 5 psychiatric condition.
Absent any other material I concur with the insurer’s submission that there is no psychiatric injury.
Of more concern to the claimant is the very significant injury he suffered to his left thumb.
Following the accident and noting significant pain in his left hand and thumb, he attended
Dr Smith, Orthopaedic Surgeon, who diagnosed an evulsion of the collateral ligament on the radial side which required surgical repair. This occurred on 28 January 2020. The claimant states that he did not receive any relief following this surgery and he continues to have pain, stiffness, and loss of grip strength in his left hand. In late 2020 he received corticosteroid injections but states these “did not help”. The claimant states that he has difficulties with any activities or actions which require the use of the left hand. The report of Dr Brett dated
30 November 2022 identifies a sensory diminution along the radial half of the thumb.
The report notes persistent pain at the base of the thumb which occurs with grip but not at rest, there is also tenderness, numbness and restricted movement.
Report of Dr Assem dated 1 February 2023 similarly diagnoses:
“a complete tear to the ulnar and radial collateral ligaments requiring surgical repair with a poor result.”
The report states:
“Mr Schenko is only managing to work approximately 30 hours per week in a position that involves repetitive and sustained bi-manual activity.”
He goes on to say:
“He has difficulty gripping, grasping any large objects, opening valves or lifting any heavy items”.
This report goes on to say:
“He will most likely continue to have ongoing symptoms and limitations in the foreseeable future that will reduce his performance and productivity thereby reducing his future earning capacity”.
The insurer submits that as Dr Breit noted in November 2022 that he “had not returned for further review”
that this suggests the claimant is not suffering any significant pain or restriction. This is specifically contradicted by the claimant’s statement dated 30 July 2023. He says:
“I have continued to have pain, stiffness and loss of grip strength in my left arm”.
He also says that he continues to take Ibuprofen every morning before work. That said, the report of Dr New dated 9 December 2022 identified pain in his left arm, hypoaesthasia on the radial side of the left thumb but does go on to note that:
“The patient has a normal range of movement with regard to the thumb IP joint, MP joint and adduction and abduction compared with the opposite side. There is no instability at the MP joint.”
I have no difficulty in concurring with the medical material which finds that the claimant has an impaired functioning of the left arm with reduction of grip strength, sensory and reduction of group strength and sensory disturbance. Whilst the range of motion is normal, I accept the claimant’s contention that the thumb injury continues to have an adverse effect on the capacity to use, operate and manipulate his left hand generally.
PAST ECONOMIC LOSS
The claimant was a Field Plant Operator at the time of the accident. The insurer submits that past economic loss ought to be allowed only to the extent of the statutory benefits and associated loss of employer superannuation payments totalling $8,635.11. The claimant provided a schedule of past loss of earnings, including loss of superannuation benefits, totalling $12,796. This is calculated as a consequence of the claimant reducing his hours to 30 hours per week some 3 years post-accident and, an ongoing loss of some $509 per week from 1 July 2023 as a loss consequent on his being unable to work overtime.
In the updated bundle the claimant’s solicitor seeks the sum of $21,884 for past economic loss consequent on the upscaling of the weekly benefits paid by the insurer (95%-100%) together with the loss of overtime from 1 January 2023 onwards.
In respect to past economic loss, I concur generally with the insurer’s submission. Prior to the accident the claimant had a gross income of some $97,000 per annum. This increased to $164,000 for the financial year ending 30 June 2022 and $152,000 for the financial year ending 20 June 2023.
The claimant applied for a supervisor’s role in March 2023 and was successful in obtaining this role. He also states that up until the end of December 2022 he was performing up to 60 hours per week at work. During this time the claimant was paid as a casual worker with the commensurate higher rate of pay albeit without the benefits and security that accrue to permanent employee.
The claimant has relocated to Adelaide in mid-2021 and was operating through a different recruitment company as a casual employee.
It may be that in the first few months of 2023, prior to obtaining his supervisor’s role, there may have been some periods when overtime opportunities were not taken. This would be for the particular period between January and March 2023. Certainly, from March 2023 the claimant did increase his full-time standard hours of work when he was appointed to the supervisor position. I also accept the insurer’s contention that this is reflective of an employer who has confidence in the claimant’s capacity to perform his duties notwithstanding his left thumb injury.
Noting that there is some degree of uncertainty in respect to a precise calculation of a loss of opportunity claim for past economic loss beyond that of the allowances which ought to be made for the past time off work and, increased by 5% to take into account the statutory reduction implicit in the insurer’s submission and also noting that some additional allowance ought to be made for loss of superannuation benefits.
In all these circumstances I assess the claimant’s past economic loss, including loss of superannuation benefits, in the sum of $12,000.
FUTURE ECONOMIC LOSS
The insurer’s submission that a buffer of $25,000 ought to be allowed for future economic loss is primarily based on the contention that the claimant has continued working in his pre-accident role until his promotion in March 2023. This, the insurer submits, is in keeping with the claimant maintaining his capacity for work, demonstrating his ability to undertake the roles required which have led to him obtaining a supervisor role.
The claimant states that he was performing up to 60 hours per week at work. He says:
“I felt there was pressure on me to keep my hours up because I was a casual worker. I found, however, that this work was just too hard on my thumb and left hand and that this was just beyond me due to the accident. I reduced my hours in early January 2023 because I could not cope with the pain in my left hand and thumb which was aggravated by my work duties.”
That said, as the insurer submits, the claimant demonstrated a capacity to work 60 hours per week from mid 2021 until January 2023.
Thereafter the claimant applied for a supervisor’s role which he obtained and commenced in March 2023. This involves 40 hours per week.
The contention by the claimant is that:
“my hours are presently 40 hours per week, whereas I could be working around 60 hours per week if I was able to work overtime.”
There is some support for this contention by a work peer, Jan Pijnappel, who in a statement dated 30 July 2023 stated:
“I do not perform much overtime because I am a permanent employee and we do not get paid extra for performing overtime. The casuals like Adam are much more likely to perform overtime because they are contractors and get paid by the hour. There is overtime available for the casuals that wish to do it.”
Other than assertions that it would be 20 hours per week at penalty rates there is no specific material that bears out what this figure is reflective of. The submissions state that the loss of $1,268 net per week is comprised of the claimant’s stated current earning (with overtime) of $2,536 net per week reduced by 50%.
Whilst I accept the claimant has difficulties with his employment, I do not accept that the future economic loss ought to be calculated on this basis nor on the basis of a loss of overtime of 20 hours per week.
I note the insurer’s submission that in the period leading up to January 2023 the claimant was able to work 60 hours per week albeit with difficulty. I do not consider the material makes out any contention that the injury to his left thumb now prevents him from ever undertaking overtime again. That is, the claimant does have a capacity to undertaken overtime as there is no evidence to support a deteriorating in his condition from the end of 2022 to date.
The material includes a pay slip noting net weekly earning in July 2023 of $1,715.60 per week. As the insurer points out, there is a complete lack of any material relating to his employment contract, the terms of his engagement, his rate of pay, salary or overtime rates. The statement of Jan Pijnappel does not identify overtime rates of 20 hours per week but rather states that overtime is available for the casuals that wish to do it.
Finally, I am not satisfied that the injury to his left thumb, significant as it is, prevents his inability to perform overtime as has been submitted. This is not borne out by the medical material nor the claimant’s statement.
The claimant’s submissions in respect to past wage loss identified a loss of $880 gross per week occasioned by a loss of 20 hours overtime per week. This would be some $509 net per week. This figure, in my view, puts the case at its highest.
I accept that the claimant will have difficulties performing some tasks associated with his employment. This is borne out by the claimant’s statement, the statement of Jan Pijnappel and the medical material. Accordingly, his most likely future circumstances have been altered as a consequence of the injury to his left thumb in so far as the claimant will not be in a position to avail himself, with ease and without restrictions, of additional working opportunities. Noting the uncertainties associated with such a calculation I consider it appropriate to make an allowance for future economic loss by way of a buffer which is reflective of an inexact calculation of about $250 per week. This is perhaps reflective of an ongoing loss of regular overtime reflective of his somewhat diminished capacity to perform it. It is appropriate to make such a calculation to age 67 gives rise to a figure of in the order of $210,000. To this figure there ought to be added an amount to compensate the claimant for the loss of employer superannuation contributions which would have accrued with such additional earnings.
Noting that the claimant has shown a capacity to continue to work extended hours previously and albeit it in physically demanding circumstances, as well as taking into consideration his promotion to supervisor and, the lack of documentation in respect to his employment circumstances and earnings as well as the inexact nature of calculating loss of overtime opportunities for the next 32 years. I assess the claimant’s future economic loss as a buffer in the sum of $240,000.
Assessment of Damages Summary
I assess the claim as follows on the findings set out above:
Economic losses
· Past loss of earnings (incl. superannuation and Fox v Wood) $12,000
· Future loss of earnings (incl. superannuation) $240,000
Total of economic losses $252,000
Total Damages Assessed $252,000
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
Statutory benefit payments $7,779.38
CONCLUSION
Costs and Disbursements
I assess the claimant’s legal costs and disbursements in accordance with the MotorAccident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet in the sum of $33,711.06.
On the issue of liability for the claim QBE’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 $252,000 which includes the statutory benefits paid by the insurer.
Legislation
In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017, and
·Motor Accident Injuries Regulation 2017.
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