Siwek v NRMA
[2021] NSWPIC 387
•20 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Siwek v NRMA [2021] NSWPIC 387 |
| CLAIMANT: | Jerzy Siwek |
| INSURER: | NRMA |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 20 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claim for damages under Motor Accident Injuries Act 2017; significant physical injuries following head on collision; liability admitted; multiple surgical procedures to right lower limb; 28% whole person impairment; claimant a contractor painter due to start new project the day after the accident; issues surrounding legitimacy of documents surrounding the project and the disparity between projected earnings and past earnings; Held - claimant and “employer” oral evidence accepted; damages assessed at $962,376.00 plus costs. |
| DETERMINATIONS MADE: | 1. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the 2017 Act), I specify the amount of damages for this claim as $962,376. 2. 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 $40,673 inclusive of GST. 3. Attached to this certificate are reasons for my assessment. |
Reasons for Decision
Issued under section 7.36(1) of the Motor Accident Injuries Act 2017
Background
The claimant sustained injury, loss and damage as a result of a motor vehicle accident occurring on 17 April 2018. The accident was of significant magnitude.
The claimant was the driver of a Toyota Hiace on Wallgrove Road NSW when a Holden Commodore travelling in the opposite direction lost control causing a frontal impact with the claimant’s vehicle.
The insurer admitted liability for the accident. The issue that remains is the amount of damages to which the claimant is entitled. There is an agreement between the parties that the claimant is entitled to an amount for non-economic loss. The assessment therefore includes damages for non-economic loss and past and future economic loss.
The claimant was born in Krakow, Poland in 1961 and migrated to Australia in 1988 at the age of 27. Whilst not mentioned in his statement, other evidence suggests the claimant is married with two adult daughters. He also has three grandchildren.
Injuries
The injuries suffered by the claimant as a result of the accident are significant. The injuries that are causing the substantial ongoing disability and pain involves the right knee and right foot. Initial injuries to the neck and back appear to have largely resolved.
The claimant was transported from the scene of the accident to Westmead Hospital via ambulance. He was discharged from hospital on 1 June 2018. Records demonstrate the claimant suffered a penetrating injury to the right knee and a traumatic partial amputation of the right 5th ray. In addition, there were multiple forefoot and foot fractures with avulsion of the Achilles tendon and tibial plafound fracture. He underwent a number of surgical procedures to the foot.
Following discharge from hospital the claimant came to further surgery on 25 July 2018 by Dr Scott Newman, by way of a reconstruction of the tibial plafond fracture, a reconstruction of the Achilles tendon avulsion fracture and to plate and graft a 3rd metatarsal shaft non-union.
An arthroscopy of the right knee was performed on 30 July 2019.
In addition to the multiple surgical procedures the claimant has undergone extensive physiotherapy and hydrotherapy.
Before me is a report of Dr Breit, Orthopaedic Surgeon addressed to the insurer dated 2 June 2020. Dr Breit noted the various injuries to the right knee and right foot. He recorded a history of the claimant stating that his neck, thoracic spine and low back were not a concern. There was a complaint of some pain in the left groin and was apparently told that he was using his crutch in the left arm too much.
The claimant reported to Dr Breit that he had constant right knee pain. He had been seeing a pain specialist with some procedures having been undergone.
Dr Breit outlined his opinion that the claimant’s injuries would cause him life long problems and he will require further surgery over the years to his foot and probably the knee.
In terms of work capacity, Dr Breit noted that the claimant had not returned to work and any future work would need to be sedentary.
Dr Breit assessed a 28% whole person impairment for the injuries to the right lower extremity.
A report of Psychiatrist, Dr Kuljic, dated 3 February 2021 is relied upon by the claimant. The report records the claimant stating that he suffers from nightmares, flashbacks and intrusive memories related to the accident. He also suffers from avoidance in terms of traffic and prefers not to drive. The claimant reported his mood to be depressed, however, lengthy psychological treatment had helped “a lot”.
Dr Vickory assessed the claimant on behalf of the insurer. In a report dated 12 January 2021 Dr Vickory diagnosed the claimant with Post Traumatic Stress Disorder in partial remission. He did not consider the claimant as being psychologically incapacitated for work.
Dr Kuljic provided an opinion that the claimant presented with symptoms of Post Traumatic Stress Disorder which has partially responded to psychological treatment. Dr Kuljic made recommendations for ongoing psychological treatment and he recommended medication.
Non economic loss
It is agreed that the claimant is entitled to an amount for non-economic loss.
A claim is made in the amount of $320,000.
The insurer submits an appropriate figure is $275,000 and sensibly acknowledges that there is no dispute as to the extent of the claimant’s injuries.
The evidence demonstrates that the claimant has been a hard working man, who has taken pride in providing for his family. It is submitted that the accident occurred at a time in his life where he had hoped to be an active grandfather and a productive citizen for many more years and these amenities are no longer open to him. It is submitted that the claimant has lost his independence and faces daily challenges with normal activities.
There is no doubt that that claimant has suffered a sudden and significant adverse change in his life as a result of the accident. In his statement, he has noted that he has always been the provider for his family and has not adjusted well to depending on others. This has caused significant emotional and psychological issues. These issues, in turn have caused familial discord.
Whilst the claimant conceded at the assessment conference that he still sees his grandchildren regularly and enjoys some fishing with his grandson, there is no doubt that the claimant’s current enjoyment of life is significantly less than he would have enjoyed had the accident not occurred.
Having regard to the significant injuries suffered, involving multiple surgical procedures and ongoing and permanent pain and suffering, I award an amount of $300,000 for non economic loss.
Economic loss claim
The claimant began working as a painter in the early 1990’s for various employers.
The evidence demonstrates that since 2000 the claimant’s work as a painter had been mainly sourced through J.A. Anzini Drafting and Building Services Pty Limited (Anzini) on a sub contractor basis. Anzini is a successful business which has maintained regular and ongoing contracts with the NSW Government for the maintenance and construction of jails, courthouses and police stations. The claimant had enjoyed ongoing and regular work with Anzini up until the subject accident. That employment arrangement is described as a painter/handyman contractor.
The claimant has not worked since the accident and has been in receipt of ongoing payments of weekly statutory benefits from the insurer.
The claim made on behalf of the claimant for past economic loss is for $1,812 net per week. This had been detailed as $2,500 in the application, however at the assessment conference it was clarified that such amount was a gross figure and the claim was instead $1,812 net per week. This amount reflects the amount that the claimant submits he would have earned working with Anzini immediately after the accident. Specifically, it is the amount expected to have been earned from a two year project at Goulburn correctional facility due to begin the week of the motor vehicle accident. It is submitted that even after the conclusion of the Goulburn project the claimant would have re-engaged in similar contract work with similar or better pay and conditions.
In his statement the claimant references his employment arrangement with Anzini and stated that he was regularly sent to remote locations in NSW to carry out the work. He had security clearance to work on the high security sites, such as within correctional facilities. He explained that he worked five days per week, at a minimum, but on urgent tasks it would sometimes extend to seven days. Hours usually were 6.30 am to 3.00 pm. The claimant stated that he would submit a weekly invoice for the hours worked and the amount would vary depending on the location of the job and the proportion of overtime.
The claimant stated that he would normally travel overseas each year for two weeks over Christmas. However, 2017 was different due to the death of his mother in law. He instead travelled to Poland for three weeks at the end of October 2017 and then again in March and April 2018 for three weeks to manage the deceased estate. He returned to Australia on 15 April 2018, being two days prior to the accident.
It is stated that the claimant was in discussions with Mr Anzini prior to his April 2018 trip about a new contract that Anzini was tendering for the renovation of the super maximum security correctional facility in Goulburn.
He stated that whilst he was in Poland, Mr Anzini invited him to submit rates to work on the project on the basis of full time work and living in Goulburn. He enlisted the help of his daughter, Samanta Corso, to assist with the task. He submitted his rates on 6 April 2018 and the offer was accepted on 9 April 2018. Agreed rates were $50 per hour for 8-10 hours per day. The claimant stated that the commencement date agreed was 18 April 2018.
The above is evidenced by copies of correspondence between Anzini and the claimant. A significant portion of the assessment conference was focused on this correspondence and is discussed further below.
The statement goes on to explain that after the return to Australia on 15 April 2018, the claimant worked on a “leftover” job at John Maroney Jail at Windsor and he was planning and packed to travel to Goulburn on Wednesday 18 April 2018. However, of course the motor vehicle accident occurred on 17 April 2018, the day prior.
From the documentary evidence before me, and from the assessment conference, the dispute centres largely around the most likely future earnings when compared with pre accident earnings. In addition, there was significant focus at the assessment conference around the particular arrangements of the claimant’s engagement at the Goulburn project. There is also a dispute as to whether the claimant has any residual earning capacity that could reasonably translate into income in the future.
As noted by the insurer in their written submissions, in the year leading up to the accident the claimant was earning, on average, approximately $815 net per week. Clearly, this is significantly less than the amount claimed. The amount claimed centres on the Goulburn project and the assessment conference provided opportunity to bring light to this part of the claim.
At the assessment conference the claimant agreed with counsel for the insurer during questioning that prior to the accident the work with Anzini regularly included overtime and would involve work in various locations around NSW. The claimant had special security clearance to work in court houses and correctional facilities.
Whilst there has been no explicit allegation of fraudulent or dishonest conduct in respect of the documentary evidence surrounding the Goulburn project, it is clear from the questioning that transpired at the assessment conference that the insurer is troubled by same. Given the existence of unusual coincidence in timing and the lack of any tender documentation for past projects, I was interested to have this part of the claim explored thoroughly so as to satisfy myself of the true situation.
As mentioned above, I have before tender type documentation between Anzini and the claimant regarding the Goulburn project. That documentation includes an “invitation to tender” to the claimant from Anzini dated 3 April 2018. It details the scope of the works to be undertaken by the claimant and details hours of work of a minimum of 8 hours a day and a maximum of 10 hours. It also confirms that accommodation would be provided. It appears to involve 18 months of work. The claimant responded with a letter dated 6 April 2018 detailing a rate of $50 per hour. A letter dated 9 April 2018 from Anzini accepted this rate.
This letter also acknowledges the claimant was overseas and requested a work commencement date of 18 April 2018. This date detailed in the letter was of some significance. Firstly, of course, the accident occurred the day prior to such date. Furthermore, other evidence before suggests the claimant was due to commence work on the Goulburn project on 16 April 2018, the day prior to the accident, which was a Monday. In this regard, at the assessment conference I understood the claimant’s evidence was that he was due to start on the Monday, 16 April 2018 at Goulburn (having returned from Poland on 15 April 2018). He gave evidence that he was packed and ready to go but received a call to finish off a job at John Moroney Correctional Facility before going to Goulburn. He was therefore expected to start at Goulburn on 18 April 2018.
In terms of the tender documents, the claimant was questioned as to whether he had ever provided/responded to a tender invitation with Mr Anzini in the past. He confirmed he had not. He stated that he had only ever provided invoices in the past. This situation did seem to be unusual, however, I was satisfied by the explanation provided by Mr Anzini when he gave evidence at the assessment conference via telephone discussed below.
The claimant’s daughter, Samanta Corso gave evidence at the assessment conference. She gave evidence that whilst her father was overseas he phoned her and asked for help with the response to Mr Anzini’s request for tender. Ms Corso gave evidence that she created the letter of 6 April 2018 on that date and she sent it on that date. Ms Corso denied having backdated the letter. She also stated that she did not keep emails, especially those not dealing with her own personal affairs, and therefore did not have emails verifying that the dates of the documents correspond with the dates they were sent.
The evidence from Ms Corso that she deletes all emails that do not relate to her own personal affairs was somewhat thrown into doubt with a further printed email that is in evidence dated 30 April 2018. The email trail on the print out suggests that Ms Corso had not in fact deleted all emails that did not pertain to her own affairs. Whilst I am somewhat troubled by this inconsistency in evidence, ultimately, I do not consider anything of significance turns on it given the evidence of Mr Anzini discussed below.
Ms Corso also gave evidence how there had been family discussions surrounding the Goulburn project and that there was some level of excitement as it was expected to provide an increase in earnings and was significant for the family. I accept this evidence.
Mr Anzini gave evidence via telephone. I found him to be a witness of truth. He is clearly a dedicated and successful business man, who takes great pride in his work. I formed the impression that he had much respect for the claimant and valued the work he performed. He described the claimant as an “outstanding tradesman.”
In terms of the Goulburn project, Mr Anzini gave evidence that it was a somewhat special project as it was a two year project, and due to the requirements of the Department of Justice, official documentation was required for all persons he procured to perform. He stated that the project was “absolutely” the longest in duration in the last 20 years. He explained that the job would be living away from home and he encouraged his contractors to work more hours given that they were only going back to a hotel room.
Mr Anzini gave evidence that he has enjoyed continued work over the years, with some overlaps. He explained that there had never been any gaps, and only Christmas involved no work. He also stated that he had been asked to go back to the Goulburn to do a rebuild which was a 12-15 month project. He said that he had not been affected by the Covid-19 situation, up until the week of the assessment conference.
Mr Anzini denied that the tender documentation with the claimant had been backdated and gave evidence that the letters from him were sent on the day that they dated. He confirmed that he deleted all emails that were more than three months old. I accept Mr Anzini’s evidence and I accept that the letters detailed above between Mr Anzini and the claimant regarding the Goulburn project were not backdated and were sent on the day they are dated.
It was confirmed that the Goulburn project was a two year project.
In terms of ongoing work, Mr Anzini confirmed that the claimant would have enjoyed ongoing work and he detailed a number of subsequent projects the claimant would have been a part of. He also confirmed that he would have started paying the claimant $55 per hour. He confirmed that working away from home meant an increase in earnings for the claimant.
In terms of his statement dated 26 March 2021, Mr Anzini was questioned on the assertion that the claimant would have expected to earn $2,720 per week. Mr Anzini conceded that he likely made a miscalculation there and clarified that such earnings would be on projects working away from home. He told Mr Hanna on questioning that if working in Sydney he would expect earnings to be around $300 a week less.
Whilst there remains some level of confusion from the evidence whether the claimant had been originally expected to commence on the Monday or Wednesday at Goulburn, I do not consider anything of significance turns on this point. I accept the claimant’s evidence that he had planned on starting at Goulburn on the Monday however those plans were changed at the last minute. This was verified by the evidence of Mr Anzini at the assessment conference. I make a finding that the claimant was indeed due to commence work on the Goulburn project on 18 April 2018, the day after the accident. Of course, unfortunately that never eventuated due to the accident.
Past economic loss
I accept the evidence of the claimant and Mr Anzini that he would have started work on the Goulburn project on 18 April 2018. I accept the evidence that it was a two year project. I also accept the evidence that the earnings would have been in the order of $1,812 net per week, as claimed. This amount reflects the content of the correspondence between Mr Anzini and the claimant regarding the project.
In terms of earnings following the project, the claim is for an ongoing amount of $1,812. However, I note the evidence of Mr Anzini that if the claimant was not working from home his earnings would be less. However, it was also stated that his hourly rate would have increased. I also gained the impression from the evidence given, including that of Ms Corso, that the Goulburn project was one the claimant was excited about as it meant a significant increase in earnings to what he usually obtained.
The insurer in written submissions notes the claimant’s prior earnings ranging from $31,000 to $45,000 per annum. The insurer also notes that invoices for work performed between May 2017 and the accident reveal earnings around $800 net per week. However, the insurer sensibly takes into consideration the Goulburn project and the evidence of expected earnings. The insurer submits an allowance of $1,660 net per week should be allowed for past economic loss.
On the basis of the documentary evidence surrounding the Goulburn project and the oral evidence of Mr Anzini, I accept the claimant would have earned approximately $2,500 gross per week but for the accident, or $1,1812 net per week.
For past economic loss, I allow a figure claimed of $1,812 for two years (being the duration of the Goulburn project) and thereafter an amount of $1,500 per week. I arrive at the figure of $1,500 per week, noting the evidence of Mr Anzini that the claimant would earn around $300 less a week working in Sydney rather than away from home. In addition, this figure also takes into consideration earnings history which is considerably less than $1,812 per week.
I therefore award an amount of $303,948 for past economic loss ($1,812 x 104 weeks + $1,500 x 77 weeks).
It is noted that the insurer is entitled to deduct from such amount payments of weekly statutory benefits already paid to the claimant.
Fox v Wood
The parties agree that the Fox v Wood amount is $10,353 and I award same.
Future economic loss
The claim is for an amount of $1,1812 net per week ongoing into the future until retirement age of 67.
The insurer submits the claimant could have earned on average around $1,200 net per week. However, it is submitted by the insurer that the claimant has a residual earning capacity albeit conceded to be modest in the amount of $200. Therefore, it is submitted that an ongoing allowance of $1,000 is appropriate.
The insurer has served a report of Vocational Assessment Report of MomentumRehab dated 24 August 2020. That report concludes that the claimant would be capable of performing the role of a packer, a locksmith or a factory process worker.
The claimant was questioned on whether he considered himself being capable of performing such roles. He gave evidence that he does not see himself working as a locksmith given that he is required to use a crutch to move around. In terms of the role of a packer the claimant explained that it was not feasible as he would need to put his leg up to avoid swelling. As for a factory worker this was also considered as non-feasible given that he would only be able to sit for 20 minutes before getting up and given the use of the crutch he would not be able to effectively perform the work.
Given the extent of the claimant’s injuries, his age, ongoing psychological problems, and his limited grasp of the English language I do not accept that it is a reasonable assumption that the claimant has a residual earning capacity. I therefore make a finding that the claimant is not likely to ever be able to work again.
I award the amount of $1,500 net per week for seven years. This figure is arrived at for the reasons set out above under “past economic loss.” However, I deduct an amount for vicissitudes at a rate of 25% on account of the variables involved with contracting work.
I therefore award the amount of $348,075 ($1,500 x 309.4 x 0.75).
Assessment of Damages Summary
Under sub-section 7.36(1)(b) of the 2017 Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
Non-Economic Loss $300,000.00
Economic losses
·Past loss of earnings $303,948.00
·Fox v Wood $10,353.00
·Future loss of earnings $348,075.00
Total Damages Assessed $962,376.00
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for payments of weekly statutory benefits already paid to the claimant.
Costs and Disbursements
I assess the claimant’s legal costs and disbursements in accordance with Part 8 of the 2017 Act and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet.
Conclusion
71.Under sub-sections 7.36 (3) and 7.36 (4) of the 2017 Act, I specify the amount of damages for this claim as $962,376.
72.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 2017 Act is $40,673 inclusive of GST.
Legislation
73.In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017 (NSW), and
·Motor Accident Injuries Regulation 2017.
Elizabeth Medland
Member (Motor Accidents Division)
Personal Injury Commission
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