Stephens v AAI Limited t/as GIO
[2024] NSWPIC 623
•7 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Stephens v AAI Limited t/as GIO [2024] NSWPIC 623 |
| CLAIMANT: | Gregory Stephens |
| INSURER: | GIO |
| MEMBER: | David Ford |
| DATE OF DECISION: | 7 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36(3) and 7.36(4) ; claimant was riding a motorcycle which sustained a rear-end collision with the driver of the insured motorcycle; insurer admitted liability and no allegation of contributory negligence; claimant suffered multiple injuries including abrasions, internal bleeding, injury to cervical spine and right shoulder; claimant is a truck driver involved in road work construction; claim for past and future economic loss; Held – claimant is entitled to damages for past and future economic loss. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of claim for damages made in accordance with s 7.36 of the Act. 1. On the issue of liability for the claim the GIO’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. The amount of damages assessed in respect of this claim is $215,000 which includes any statutory benefits paid by the insurer. 3. 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 Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 are the regulated costs. |
STATEMENT OF REASONS
INTRODUCTION
On 3 March 2019, Gregory John Stephens, (the claimant) was riding his motorcycle towards Armidale with a group of other motorcyclists. He had just ridden over a crest when he decided to slow down as there were cattle grazing on the side of the road. It then transpired one of the other motorcyclists approaching from the rear, failed to slow down and consequently, collided with the rear of the claimant’s motorcycle. He was thrown over the handlebars and landed on the roadway sustaining injuries.
In the Application for Personal Injury Benefits, it is recorded he sustained the following injuries:
· whiplash;
· abrasions;
· shoulder ligaments, and
· internal bleeding.
The claimant decided to return home after the accident, and on 10 March 2019, he attended Gympie Hospital emergency department for tests. He presented with back pain, multiple contusions, and a large right sided psoas haematoma and small volume retro peritoneal haemorrhage. He remained overnight and was given a blood transfusion because of internal bleeding. Subsequently, his injuries to his right shoulder worsened, and on 31 May 2019, he presented to Dr Low, general practitioner, complaining of persistent right shoulder pain. He was referred for an MRI scan of the right shoulder on 24 May 2019 and was referred to
Dr Chris Wainwright, orthopaedic surgeon, for treatment. Dr Wainwright diagnosed him with intrasubstance and footprint tear of the right supraspinatus associated with bicep tendinopathy and recommended surgery. On 8 November 2019 he underwent surgery, being a right rotator cuff repair procedure by Dr Wainwright.At the time of the accident, he was operating a business known as Stevens Plant Hire Pty Limited. He was working on average 55 hours per week, as a truck driver and would undertake maintenance on his truck. Following the accident, he was unable to work, initially unable to drive a truck and it was necessary to hire a driver to assist him in his business. After the surgery on 8 November 2019, he had reduced capacity to work, however, he returned to truck driving in July 2020, and by August 2020, was working at full capacity. In mid-2020, he purchased a second truck and by mid-2021 his employment contract changed, and he became an employee truck driver.
A claim was made for past loss of earnings as a truck driver from 3 March 2019 to date. At the commencement of the general assessment conference, I was advised by both parties, an agreement had been reached regarding the claim for past economic loss. The agreed sum was $75,000 including an allowance for past superannuation.
The claimant was born in 1957 and is presently 67 years of age. The Medical Service by virtue of Certificates and Reasons of the Review Panel dated 30 June 2024 determined his whole person impairment in respect of physical injuries to be 3%. The injuries caused by the motor vehicle accident, as certified by the review panel, are as follows:
· cervical spine aggravation of pre-existing cervical spondylosis;
· right shoulder aggravation of pre-existing rotator cuff tear with subsequent rotator cuff repair surgery and biceps tendodesis, and
· right knee scarring.
The review panel determine the following injury was not caused by the accident:
· left shoulder impairment due to cervical neck pathology.
The insurer wholly admitted liability by letter dated 25 March 2022, and accordingly the claim comes before me solely to assess damages. He was employed in undertaking roadworks at Gympie, Queensland, however this employment ceased on 30 August 2024. At the assessment conference, he stated he had no further employment opportunities available to him and, in any event, he could not continue to work on a full time basis. He has plans to sell both his trucks and if possible, look for similar work for only a few hours per day.
Outline issues in dispute
The following issues have arisen in this matter:
(a) past economic loss;
(b) future economic loss;
(c) past superannuation, and
(d) future superannuation.
The main issues requiring my determination are as follows:
(a) to what extent if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until the present time and for the remainder of his working life, and
(b) what is the entitlement to damages which flow from the findings on the above issues.
Documents considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Submissions made by the claimant.
I refer to the statement of the claimant dated 5 September 2024, and I refer to the following paragraphs:
“5. I obtained a truck drivers licence and in around 1987, I started my own business Greg Stevens sole trader. I bought my own truck and transported sand and gravel. I followed highway construction and did local deliveries for the highway construction.
6. In 2011 I was involved in a truck accident when I attempted to stop a runaway truck after I failed to engage the handbrake before getting out of the truck. I suffered a fractured pelvis and injured my right thigh.
7. I married my first wife and had two daughters, and later we divorced. I remarried, and I currently live with my wife, Donna, in a three-bedroom home in Curra Queensland.
23. Since the accident, I have suffered from chronic pain in my neck and right shoulder. It is difficult to finish a shift, and I am restricted in how I turn my neck when I am driving. By about 2:00pm I am in a lot of pain. I also have a lack of strength in my right arm, and when I drive, I have to steer with one hand. My right shoulder does not lift up as high as the left shoulder, and I have no strength in my arms. I also have difficulty pulling myself up into the truck due to pain.
24. I have lost income as a result of the accident and my injuries, particularly in the 2019 / 2020 financial year, I had to employ someone to keep my business going.
25. My future ability to work as a water tanker driver has been affected. I own a 30-tonne truck and work on road work contracts. I have ongoing pain and restriction trying to drive my truck. It is bumpy and I am driving on uneven ground at times, which increases my pain. I have difficulty working a full shift at work. I am restricted when I am driving my truck as I cannot turn my neck properly. I have only been continuing to work out of financial necessity, and I am forced to retire I have been offered a further four-year contract which I do not think I will be able to undertake.
26. Prior to the accident, I was working hard, and I intended to continue working, although I had right shoulder problems prior to the accident, I was not suffering from chronic pain and restriction in my neck and shoulder and envisaged working until age 70 and beyond.
27. My life has changed since the accident. I used to work full time and ride my motorcycle and I was unrestricted by pain, restrictions and fatigue. I often feel down and moody about my injuries and how they have impacted on my work and my life. I am worried about the future, being forced to retire early, because I cannot complete the tasks associated with driving my truck anymore. I am worried about my health deteriorating and living with ongoing pain.”
At the assessment conference, he stated that several months prior, he had been working 60 hours per week, 55 hours during the week plus 6 hours on Saturday. He has established a relationship with a Mr Gary Dan, whom he has known for over 35 years, who arranges for him to obtain contracts for road works. He has found it difficult in the last six months to continue working on a full-time basis. It is necessary for him to take painkillers every four hours. He takes Panadol osteo and Panadeine forte. He has been prescribed Naprosyn and Temazapin.
The claimant was questioned at the conference by counsel for the insurer, and he confirmed he last employed a driver over 18 months ago. He still retains ownership of both his trucks which had been rebuilt at substantial cost. He plans to sell the trucks. He conceded he could now work a couple of hours per day, but in response to further questioning, he stated “I want to get my body repaired”. He also conceded he could do work similar to the work he has been undertaking for the last few years but could only work a few hours per day. He further conceded, prior to the subject accident he did have minimal pain in his right shoulder and did have a problem with his lower back.
The solicitor for the claimant arranged for him to be examined on a medico legal basis by
Dr John Davis and I refer to his report dated 29 March 2022. He has provided a comprehensive report and on page 4 provides particulars of the claimant’s present complaints at that time. He carried out a physical examination and viewed various imaging reports. On page 7 of his report under the heading “Diagnosis" I note the following,“mechanical injury to the cervical region due to probable aggravation of pre-existing asymptomatic degenerative changes, and
· functional impairment of both shoulders although most significant on the right which is the result of a combination of rotator cuff pathology and referred symptoms from his cervical region. There is no specific trauma to the left shoulder.
Under the heading “Prognosis” I note the following:
· prognosis is for the AC joint degenerative changes and the likely development of traumatic degeneration of his right humoral head. Such will result in increasing impairment and disability and further loss of functional capacity over time.
He was also examined on a medico legal basis by Dr Todd Gothelf, and I refer to his report dated 10 May 2023. I note the following on page 10 of his report:
“The prognosis with regards to the right shoulder condition is guarded. Mr Stephens demonstrated persistent pain and loss of function of the right shoulder. Mr Stephens has returned to his preinjury duties, but he is struggling due to the right shoulder condition. The condition of the right shoulder may deteriorate over time, but depends upon the integrity of repair, which remains in question based upon the current physical examination findings. The cervical spine condition is guarded. Symptoms have persisted since the subject injury. It is unknown whether symptoms will cease.”
On page 11 of his report, I note the following:
“Mr Stephens is currently capable of light duties. Around July 2020, he returned to work as a truck driver. He has returned to his preinjury weekly earnings around August 2020 and since then, he has worked full time. He is tolerating the driving but finds that he gets excruciating pain from driving for a full day, which worsens by the afternoon. He is no longer able to change tyres. He is struggling, tolerating the work duties at this time. The main reasons that he is struggling is due to the right shoulder and cervical spine conditions.
Mr Stephens will likely be capable of continued light duties, and he will be unable to return to his pre injury duties as he is not capable of changing tyres or doing physical work required by his trucks.”
I refer to the medico legal report of Dr Andrew Porteous, occupational physician, dated
28 August 2024. I note the following on page 6 of his report,“In my opinion Mr Stephens is restricted from exposure to whole body vibration that occurs in commercial vehicles because of his cervical condition. He is restricted from constant stretching or reaching out with both shoulders and from constant repetitive shoulder activity. He has got markedly restricted range of motion in the cervical spine particularly to the left and gets spasm in it and from a health and safety point of view, I consider he is unsafe to drive a commercial vehicle on work sites because of the danger of not being able to check in his peripheral and rear view.
In my opinion, although he has persisted and managed to keep working, I now believe he is incapacitated from working and will not be able complete the next 4-year driving contract. If prior to the accident, he appeared fit and well and is more likely than not he could have completed that, at which time, he probably would have retired.
Due to the injuries from the subject accident, associated reduced capacity, he is incapacitated from continuing that next 4-year contract. I also note that if he tried to compete in the open labour market, he would be unsuccessful.
In my opinion Mr Stephens does not have fitness to operate a commercial vehicle on a work site including a construction and civil work site because of his injuries, required restriction and reduced capacity. In my opinion, he is unsafe for health and safety reasons, and he would not pass as fit for undertaking it the work that he has undertaken for the last 40 years or so.
I believe he has only been just managing the work with severe aggravations by the end of a workday, and the end of a work week and only recovering to go back to work and work has aggravated condition. In my opinion, he is totally unfit to continue the next 4-year contract but believe that he would have been able to undertake that but for the subject accident. The associated injuries that continue and will likely continue for the foreseeable future, as well as the associated required restrictions and the markedly reduced capacity because of those injuries.”
Submissions made by the insurer
The insurer served a number of reports from the claimant’s treating orthopaedic surgeon,
Dr Chris Wainwright. Dr Wainwright performed a right rotator cuff repair of the claimant's right shoulder in November 2019. In particular, I refer to his report dated 10 June 2020 where he states as follows:“I reviewed Greg via teleconference today. He has now made a near full recovery, returning to his normal duties at work today. I understand that he made make a claim via third party insurance regarding his losses over the intervening weeks and months, and should he do so, we would be more than happy to support this. In the meantime, he has lost only a small amount of internal rotation and occasionally has disrupted sleep, but he is very happy with the results of the surgery. In light of this we are happy to be able to discharge back to your care”
The solicitor for the insurer arranged for him to be examined on a medico legal basis by
Dr Nicholas Burke and I refer to his reports dated 5 July 2022, 14 June 2023 and
27 September 2024. I refer to the report dated 27 September 2024, where he states the following on page 8 of his report:“Given the extent of time which has elapsed since the accident, it is highly probable that his ongoing symptoms no longer relate to the accident, and in my opinion, his ongoing symptoms related to pre-existing conditions, particularly the degenerative change.
Prognosis is quite guarded. He has extensive cervical and lumbar spondylosis, as well as degenerative conditions affecting the right shoulder as well as most probably the left. There is past history of the accident 2011. He also described degenerative conditions affecting the feet. In my opinion his long-term prognosis is dominated by his underlying degenerative change.”
I further note he opines the following on page 9 of his report:
“He has been able to continue working up until three weeks ago as a truck driver. However, at this stage, I do not believe that he would be fit to work as a truck driver in any significant capacity, particularly 12-hour shifts.
This principally it relates to his pre-existing conditions. I do not believe that any ongoing work capacity is related to the accident. It is probable that any incapacity related to the accident would have lasted a total of 3 months subsequent to that his ongoing symptoms would relate to pre-existing conditions.”
Reports from the medical service
I refer to the Certificate and Reasons of the Review Panel dated 13 June 2024. The Panel determined the following injuries were caused by the motor accident:
· cervical spine, aggravation of pre-existing cervical spondylosis;
· right shoulder, aggravation pre-existing rotator cuff tear with subsequent rotator cuff repair surgery and biceps tenodesis, and
· right knee scarring.
The following injury was not caused by the accident:
· left shoulder impairment due to the cervical neck pathology.
REASONS
Past loss of earnings
At the assessment conference the parties agreed the amount to be allowed for past loss of earnings including past loss of superannuation is the sum of $75,000. There were no statutory payments made to the claimant by the insurer, nor is there to be an allowance for tax instalments paid by the insurer.
Future loss of earnings
The solicitor for the claimant submitted I should allow for future economic loss in the sum of $1,764 net per week for a period of five years. This resulted in a proposed amount of $347,111. It was further submitted I should allow an amount for future superannuation in the sum of $49,636.
The solicitor for the insurer submitted I should make an allowance by way of a buffer only, in the sum of $80,000 including an allowance for future superannuation.
I accept the claimant has used his best endeavours to continue working as a truck driver up until the present time, despite his physical limitations, especially regarding his right shoulder. I prefer the opinions expressed by Dr Andrew Porteous, which I have referred to in paragraph 16 above, and I further accept the claimant is not able to continue to work on a full-time basis as truck driver. I find he has a reduced capacity for work as a truck driver, however, as conceded by the claimant at the assessment conference, he does have a residual capacity for similar like truck driving duties but on reduced hours.
I find he is still well motivated to continue working, despite his physical restrictions, and I also accept he would have continued working for at least the next five years, but for the accident.
At present, he has not made attempts to engage in part time work, but he does acknowledge this option is available to him, and I find he will pursue immediate avenues to secure such employment. He acknowledged his pain medication does allow him to continue working and this fact will also assist him in securing work as a truck driver in the future.
Counsel for the claimant referred me to the NSW Court of Appeal decision of Mead v Kerney (2012) NSWCA 215. This decision is an authority for the proposition the insurer bears an evidential onus concerning the issue of whether the claimant has a residual earning capacity that he is practically capable of exercising. He referred me to the report of Dr Nicholas Burke dated 27 September 2024, which I have referred to above in paragraphs 20 and 21. However, I do not accept this submission the reasoning in Mead v Kerney is relevant to this matter, as I stated to counsel for the claimant at the assessment conference, Dr Burke believes the claimant’s present inability to work as a truck driver, in any significant capacity, is principally related to his pre-existing conditions and he does not believe any ongoing work incapacity is related to the accident.
I do not accept the submission made on behalf of the claimant, I should allow future loss of earning capacity based on a net weekly loss, but rather, I accept the submission made by the insurer, it is appropriate in the circumstances of this matter to make an allowance by way of a buffer, rather, than a precise calculation. Accordingly, I find the most likely future circumstances for this claimant is he will continue to suffer a diminution in earning capacity for the remainder of his working life, and I therefore consider it appropriate to award future economic loss by way of a buffer in the sum of $140,000, which includes and allowance for future superannuation.
Assessment of damages summary
Under sub-s 7.36 (1)(b) of the Motor Accident Injuries Act 2017 (MAI 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:
past loss of earnings incl past superannuation $75,000
future loss of earnings incl superannuation $140,000
total of economic losses and non-economic loss $215,000
reduction for contributory negligence Nil
TOTAL DAMMAGES ASSESSED $215,000.
Costs and disbursements
I assess the claimant's legal costs and disbursements in accordance with the MAI Act and the Motor Accident Injuries Regulation 2017 as scheduled fees and agreed disbursements.
CONCLUSION
On the issue of liability for the claim GIO'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 $215,000 which includes any statutory benefits paid by the insurer.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, is assessed in accordance with the MAI Act as the scheduled costs and agreed disbursements.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017;
· Personal Injury Commission Regulation 2020;
· Motor Accident Guidelines 2017, and
· Personal Injury Commission Rules 2021.
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