Sutovic v AAI Limited t/as GIO
[2022] NSWPIC 276
•14 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Sutovic v AAI Limited t/as GIO [2022] NSWPIC 276 |
| CLAIMANT: | Svetislav Sutovic |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Terence Stern |
| DATE OF DECISION: | 14 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Allegation of soft tissue injuries to the spine; Medical Assessment Service Report (MAS) determinations of a treatment dispute and of a Whole Person Impairment dispute; competing reports of occupational therapists; consideration of case law on balance of probabilities; Claimant considered a credible witness; finding on the balance of probabilities that the Claimant continues to suffer chronic pain; diagnosis of Major Depressive Episode on a background of chronic pain; buffer of $15,000 for future treatment including chronic pain management; consideration of case law on future economic loss; Medlin v State Government Insurance Commission; IAG Ltd t/as NRMA Insurance v Damian Mares; Dal v Chol; Allianz Australia Insurance Ltd v Kerr; section 126 Motor Accidents Compensation Act 1999 assumptions; authorities on buffer for future economic loss; Penrith City Council v Parks; Allianz Australia Insurance Limited v Kerr; past gratuitous care; no award made; future commercial domestic assessments; consideration of Insurance Australia Ltd t/as NRMA Insurance v Scott; finding that NRMA Insurance v Scott extends to commercial domestic care; no provision made for future commercial domestic assistance; total of damages assessed; $235,603.65. |
| DETERMINATIONS MADE: | 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. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the Act), I specify the amount of damages for this claim as $235,603.65. 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 Act is $ 43,684.24 inclusive of GST. |
Reasons for Decision
Issued under section 94(5) of the Motor Accidents Compensation Act 1999
INTRODUCTION
The Claimant was born in June 1965 in Montenegro, migrated to Australia in 1996, was educated here to Year 12, went to University but did not complete an Engineering Course, sang in Yugoslavian restaurants for 2-3 years and then got a job in the Building Industry as a gyprock fixer.
According to his Statement, at the time of the accident and for some years before, he was self-employed doing contract work as a gyprock fixer for Choice Ceilings and working an average of 50-55 hours a week and every Saturday and Sunday.
Prior to the accident the Claimant says he was in good health. Although he had a motor vehicle accident in 2009 in which he sustained injuries to his lower back, he did not take any time off work. He says that the low back injury cleared up after about 6 months.
THE ACCIDENT
On 19 May 2017, the Claimant’s vehicle was stationary at a red light when it was struck from the rear. There were two other vehicles involved. The Claimant stated [4] that he could not open the boot and that there was considerable damage.
The Claimant continues [5] that instantly after the collision he felt severe pain in his neck, upper and lower back and in both shoulders. He was in shock. He went home and took medication in the hope that the pain might go away. After a few days, it was obvious that the pain would not go away, and he decided to see his general practitioner.
THE SCOPE OF THE DISPUTE
The scope of the dispute is as follows:-
i.Liability is conceded and there is no issue of contributory negligence.
ii.The Claimant is not entitled to damages for non-economic loss.
iii.Past out-of-pocket expenses are partially agreed.
iv.Past and future economic loss is claimed and is disputed.
v.Future treatment expenses are claimed. The amount is in dispute.
vi.Past and future provision of attendant care services are claimed and disputed.
MEDICAL TREATMENT AFTER THE ACCIDENT
The Claimant saw Dr Krisimir Tomka on 24 May 2017 giving the history of the car accident recorded in his clinical notes as follows:
“MVA on 19/5/17
DRIVER OF THE CAR, STATIONARY WHEN ANOTHER HIT HIS REAR END
C/O PAIN IN NECK, UPPER AND LOWER BACK
PAIN IN BOTH SHOULDERS
ON EXAMINATION TENDER ALL NECK MUSCLES, UPPER AND LOWER BACK
LIMITED ROM IN NECK AND BOTH SHOULDERS
DX: INJURY TO NECK
INJURY TO UPPER AND LOWER BACK
BOTHS (sic) SHOULDERS INURY
---
Prescription added: MERSYNDOL FORTE TABLET 450mg …”In a report of 16 April 2019 [A3] Dr Tomka noted the history including that the onset of severe pain in the Claimant’s neck, upper and lower back as well pain in both shoulders was instant.
Dr Tomka reported that just 4 days after the accident, on examination of the cervical spine there was:
“… obvious spasm of all neck muscles extending into both shoulders, between shoulder blades and into lumbar area.
With his neck he couldn’t bend down to reach his chest with a tip of his chin nor could he extend into neutral position. He could bend his neck to right or left only halfway of normal and rotational movements in the neck were similarly reduced.”
Dr Tomka continued:
“His both shoulders were tender anterolaterally and movements were symmetrically affected.
Flexion and extension were 40 degrees, abduction and adduction 60 degrees and internal and external rotations were impossible to assess.”
Dr Tomka diagnosed injuries to:
(i)Cervical spine
(ii)Both shoulders
(iii)Thoracic spine
(iv)Lumbar spine
(v)Psychological
Physiotherapy sessions were without improvement of symptoms.
An orthopaedic surgeon recommended conservative treatment.
Dr Tomka was in no doubt that the injuries were a direct consequence of the accident.
He commented that the work of a gyprock fixer was physical in nature and included frequent heavy lifting, bending, kneeling as well as working above head height. At the time of the report of 15 April 2019, the Claimant was unable to lift more 5kgs nor able to bend down, kneel down or work above head height. Those restrictions prevented him from going back to work in full capacity as he needed to take frequent days off work to recover as work was aggravating his pain.
Dr Tomka referred the Claimant for MRI investigations of the cervical and lumbar spine reported by Dr Frankie Wong on 15 June 2017.
Dr Wong reported a conclusion that there was a suggestion of posterior annular tears at L1/2, L3/4, L4/5 and L5/S1 without evidence of nerve root impingement. There was a suggestion of minimal left L5 nerve root contact.
Dr Chee Chuing Hiew, radiologist, performed an ultrasound of the right shoulder on 8 September 2017, reporting:
(i)Tendinosis of the subscapularis and supraspinatus tenderness.
(ii)Subacromial/subdeltoid bursitis with sonographic impingement.
(iii)No evidence of tears.
Vladimir Colovic, physiotherapist, reported his diagnosis of injuries on 20 October 2017. He recorded the Claimant’s complaints of constant pain and limited range of movement of the neck, upper back and lower back.
Mr Colovic included in the history a reference to the motor vehicle accident low pain in 2009. He recorded reported restrictions of standing to 15 minutes, walking to 30 minutes and lifting to 5kgs.
Andrew Phan, physiotherapist of the same practice, reported on 19 January 2018 that standing was restricted to 30 minutes, walking to 45 minutes, lifting to 8kgs, pulling to 11kgs, and lifting above the shoulder to 6kgs.
MEDICOLEGAL EXPERT OPINION
Dr Medhat Guirgis reported to the Claimant’s solicitor initially on or about 5 June 2019 and again on 24 June 2019. On 24 August 2021, Dr Guirgis set out the history of the motor vehicle accident and then:
“Since then he continued to complain of pain and stiffness felt some days more than others with right > left C4 radiation from the neck and attacks of radiation from the back to the adjoining buttocks. He also continued to complain of painful stiffness and weakness of his shoulders. … sleep disturbances … causing sleep deprivation symptoms during the day …”
Dr Guirgis set out the results of his clinical examination. The Claimant reported pain and tenderness over C5 to C7 and over the right > left supraspinous fossa.
Dr Guirgis noted that movements of the cervical spine were restricted in respect of flexion, extension, left lateral flexion and rotation, with guarding on trying to exceed the range achieved. He observed loss of the normal lumbar lordosis, with pain and tenderness over the lower lumbar spine and right sacroiliac joint. He notes that movements of the lumbar spine were significantly restricted, with guarding on trying to exceed the range achieved.
He observed restriction in the range of shoulder movements.
He sets out on pages 2-3 his diagnosis of the injuries and conditions sustained as a result of the accident:
(i)Post-traumatic mechanical derangement of the cervical spine caused by musculo-ligamentous sprain \ strain which had also triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes.
(ii)Rotator cuff syndrome in both shoulders with ultrasound evidence of supraspinatus tendonitis, subscapularis tendonitis, and subacromial bursitis with bursal bunching and impingement in the right shoulder.
(iii)Further post-traumatic mechanical derangement of the lumbar spine caused by musculo-ligamentous sprain \ strain which had also triggered and aggravated the effects of underlying chronic post-traumatic and spondylitic changes, noting the history of the earlier motor vehicle accident in 2008/2009 when he injured his lower back but continued to work full-time on full duties.
Dr John Stephen, orthopaedic surgeon, reported at the request of the Insurer on 23 August 2018, noting that the Claimant’s main current complaint was of low lumbar back pain at a low grade, pretty well most of the time, but aggravated by certain activities. There was no associated paraesthesia or numbness and no bladder disturbance.
On physical examination, cervical posture was normal. There was no muscle wasting in the upper limbs and a full range of cervical movement. Firm compression of the median nerve on each side tended to exaggerate symptoms of paraesthesia suggestive of median nerve compression which he did not believe to be accident related.
The MRI scans of the cervical spine of 15 June 2017 showed mild degenerative changes. The radiologist reports severe stenosis on the left at C3/4, but he did not agree with that finding.
The lumbar MRI of the same date showed no definite evidence of nerve root compression. There was mild disc degeneration at multiple levels.
The ultrasound of the right shoulder of 8 September 2017 was reported as showing tendinosis of supraspinatus and subscapularis tendons without local tear. The radiologist described sub-acromial bursitis with impingement. He commented that clinically that was not the case.
Under diagnosis, Dr Stephen noted that the Claimant had been troubled chiefly by ongoing mechanical low lumbar back pain and intermittent mechanical cervical pain. He did not believe his symptoms of paraesthesia and numbness in the hands and arms were accident related. They were probably those of carpal tunnel syndrome which was not accident related.
Dr Graham Vickery, psychiatrist, reported at the request of the Insurer on 18 July 2018, finding that there was no clinically significant anxiety, depression, paranoid delusional ideation or formal thought disorder, nor was there any apparent cognitive impairment in concentration or movement. There was no diagnosable DSM-IV/DSM5 psychiatric disorder or injury.
MEDICAL ASSESSMENT SERVICE REPORT (‘MAS’)
Dr Enrico Parmegiani, psychiatrist, assessed a treatment dispute for MAS and certified on 16 March 2021 the following disputes:
·Whether psychological injuries gave rise to a need for domestic assistance from the date of the accident to the date of assessment (16 March 2021).
·Whether 0.7 hours per week of domestic assistance was reasonable and necessary by reason of psychological injuries from the date of the accident to the date of assessment.
·Whether psychological injuries gave rise to a need for domestic assistance from the date of assessment and ongoing for the remainder of the Claimant’s life expectancy and were causally related.
·Whether 0.6 hours per week of domestic assistance was by reason of psychological injuries reasonable and necessary from the date of assessment for the Claimant’s life expectancy.
·Whether the use of Valpam[1] was reasonable and necessary for the Claimant’s life expectancy from the date of assessment.
[1]A drug for anxiety
Having read the documentation, undertaken a mental state examination, considered current functioning and consistency, Dr Parmegiani concluded that on the basis of the Claimant’s description of the accident it did not constitute a valid Criterion A for a potential diagnosis of PSD. Although the Claimant said he began to experience symptoms of chronic pain, notwithstanding his pain, he attempted to work as a plasterer for up to 6 months after the accident but in the presence of chronic, intractable pain, he gradually reduced his working hours to 3 days a week 8 hours a day.
Dr Parmegiani noted that in the presence of chronic pain, and having to reduce his working hours, the Claimant said he began to experience symptoms of dysphoric mood which he discussed with his GP. He was given the opportunity to see a specialist but declined. As a result, the Claimant had remained untreated from a psychiatric perspective.
Dr Parmegiani continued that when assessed on 4 March 2021, the Claimant reported psychiatric symptoms consistent with a DSM-5 diagnosis of Major Depressive Episode on the background of chronic pain. Despite the absence of formal treatment, he continued to work 3 days a week as a plasterer. The impact of his psychiatric condition had been mostly on his ability to socialise with his friends and to some degree to focus and concentrate on cognitively-demanding tasks, such as reading books. Insofar as his ability to perform household duties, any difficulties in those areas were related to his persistent symptoms of back pain.
From a therapeutic perspective, he would benefit from a referral to a psychiatrist and treatment with antidepressant medication.
One of the treatment disputes related to the use of Valpam, but in his opinion, a Diazepam drug was not a suitable treatment for Major Depressive Episode and should not be prescribed in the circumstances.
Consequently, he concluded that all the treatments referred for his consideration were not reasonable or necessary.
Assessor Dr Alexander Woo assessed the Claimant for MAS on 22 March 2021 for Whole Person Impairment (WPI) as a result of physical injuries.
He also assessed the treatment disputes which he lists at [3], namely, whether the physical injuries gave rise to a need for domestic assistance and are causally related to the accident from the date of the motor vehicle accident to the date of assessment and from the date of assessment for his life expectancy.
With respect to his physical examination of the Claimant, there was a normal range of movement of the cervical spine without dysmetria or muscle guarding and no non-verifiable radicular complaints. The same applied with respect to the examination of the thoracolumbar spine. There was tenderness in the lumbar spine with extension one half of normal restricted by pain, but without dysmetria or guarding and without non-verifiable radicular complaints.
There was no tenderness or guarding in the shoulders, both of which had a normal range of movement, but with discomfort.
Dr Woo considered that the Claimant did have symptoms of neck pain, back pain and bilateral shoulder pain immediately following the accident and that the injuries were therefore related to the accident, but the injuries to all of the areas considered were soft tissue only, with the exception of the lumbar spine where there were non-verifiable radicular complaints.
The result was a 5% WPI arising from lumbar spine DRE Category II based on the non-verifiable radicular complaints.
As to the treatment dispute, he answered all the questions in the negative.
REPORTS FROM THE BIOMECHANICAL ENGINEERS
I have not reviewed the two reports as at the PIC hearing it was noted that counsel for both the Claimant and the Insurer did not require me to refer to those reports in my Reasons or take them into account.
OCCUPATIONAL THERAPY EXPERT OPINION
Christian Byrnes, occupational therapist, provided a report of 24 June 2020 at the request of the Claimant’s solicitor. He based his opinion on the conclusion that the Claimant experienced a mechanical injury to his neck, shoulders and back as a result of the subject accident, shock and ongoing disability resulting in symptoms of depression and anxiety.
Mr Byrnes accepted that the Claimant experienced ongoing pain and poor psychological health resulting in reduced capacity to work.
He accepted that multiple medical reports confirmed the degree of WPI with Dr Guirgis and Dr Tomka both reporting 14% physical impairment.
He concluded that the Claimant had been provided with an estimated 13.01 hours per week of gratuitous care by his wife between the date of the accident and 19 June 2020.
As to current care, he was provided with 13.01 hours per week of gratuitous care by his wife and that such support was likely to be required on an ongoing basis. He would benefit from the supply of commercial domestic assistance to adequately eliminate reliance on his family.
Spiros Katzakis occupational therapist assessed the Claimant at the request of the Insurer and reported on 28 April 2020. The assessment was via telephone conference and video link with the assistance of an interpreter.
In his Executive Summary he summarised the injury and treatment:
·Non-specific injuries to the cervical and lumbar spines and both shoulders.
·Management by GP with painkillers and physiotherapy.
·No current treatment. Ongoing symptoms managed with medication.
Mr Katzakis noted that although the Claimant reported restrictions due to low back and shoulder pain, he demonstrated good general freedom of movement and a full range of motion at the cervical, thoracolumbar spine and both shoulders. He had functional capacity to continue performing work and domestic duties as per his pre-accident status.
Mr Katzakis considered the Claimant had remained independent in performing personal care and driving. The Claimant told him that his wife increased her work about the home to allow the Claimant to rest and recover after work.
Mr Katzakis was of the opinion that the Claimant’s injuries did not result in a significant change of functional capacity.
With respect to his capacity to work, Mr Katzakis considered that the Claimant had the functional capacity to perform his pre-accident work duties.
The assessment was over a period of 2.5 hours, with the initial 2 hours to complete the background information.
Mr Katzakis summarises his opinion at [6] concluding that the Claimant presented as pain focused but did present good freedom of movement and a full range of motion at the cervical spine and both shoulders. He was able to bend at the waste reaching to the floor. He considered that medicolegal opinion and his demonstrated functional capacity indicated that the Claimant could perform his full pre-accident work duties. The accident had not given rise to any reasonable need for past or future domestic assistance.
STATEMENT EVIDENCE
CLAIMANT’S PRIMARY STATEMENT
I have to some extent referred to the Claimant’s Primary Statement. I now extract the balance of that Statement by reference to paragraph numbers:-
[6]When first saw Dr Tomka, had spasm of all neck muscles extending into both shoulders between the shoulder blades and into the low back. He could not bend down to reach his chest with the tip of his chin, nor could he extend into a neutral position. The range of movement of his neck to the right or left was only 50% of normal. Thoracic spine was very tender. Both of his shoulders were affected, and movement of the shoulders was affected. His low back pain was bad, and he could not bend when he first saw Dr Tomka.
[7]Became irritable and suffered from insomnia and anxiety, particularly when in the car. He has flashbacks, trouble sleeping and nightmares.
[8]Refers to his previous accident in 2008 when he hurt his lower back but did not take any time off work. The injury cleared up and had not troubled him after about 6 months. He was treated by Dr Todorovic at the time. He cannot recall seeing a specialist.
[9]Never had an accident at work or a public liability accident. About 2 years after the subject accident, was involved in a rear end accident, but did not get injured.
[10]His general health is very good. had an onset of pain in his right knee about 10 years ago and had an arthroscope. About 20 years ago, had an arthroscope for his left knee. Pain had just come on. He might have had 2-3 weeks off work.
[11]Has needed domestic assistance since the accident.
[12]Would have done heavy duty work until the age of 70 or even more if possible.
[14]Has done a lot of gyprocking work and has worked for up to 20 employers over the years. Not long after he started, he got an ABN and has remained on one ever since. About 10 years ago he went into partnership with his wife.
[15]At the time of the accident, was doing contract work for Choice Ceilings and was working for it for about 18 months before the accident, working an average of 50-55 hours a week including Saturdays and Sundays.
[16]After the accident, was in bad shape. Had to go to work because he had a wife and young children. His wife was not working, and he was the only bread winner. He was doing 8 hours a day 5 days a week plus Saturday work on occasions. He probably worked about 42.5 hours a week, noting reduced Saturday work. This lasted for about 3 months after the accident. he called on friends he knew to do the heavy work which he could not do. They were very helpful to him. There is a lot of goodwill on building sites. After the first 3 months, he went on to 20 hours a week, 5 days a week working 4 hours a day and then about 12 months before the Statement, that is approximately March 2019 went to 24 hours a week, 3 days a week, 8 hours a day still for Choice Ceilings.
[17]When he did light duties and since, he has had to take medication to get through the work. When he worked the lesser hours, he has mainly been an assistant rather than an installer. He then went onto 20 hours a week of suitable duties. He says he is very tired when he gets home and cannot do the domestic chores he did before the accident.
[18]His income has reduced dramatically. He cannot do the heavy work of gyprocker. If he were to lose his current light duties, he would be disadvantaged on the open labour market. His English is not good. Believes he would be virtually unemployable.
[19]Sets out his belief as to his needs for treatment.
EVIDENCE AT THE PIC HEARING
The Claimant answered questions with the assistance of an interpreter of the Serbian language.
The Claimant stated that he spends about $20 a month on medications. He drives to work and then before starting work he takes medications. He claimed that “right now” (i.e., at the PIC hearing) he was in pain because he had not taken his medications. The pain was focused in his upper back, and he had a headache.
The Claimant was cross-examined then. He agreed that the Pandemic had affected his work in that there was less work, but there was only a period of 3 or 4 weeks when there was no work and he explained that was because he was working at Westfield (halfway to Newcastle) for the whole period, and he had worked there for about 3 months.
The Claimant explained that he did not drive there every day. Rather, he slept at a hotel convenient to Westfield for the duration of the job.
Mr Ronzani suggested to the Claimant that the tax records indicated that there was no loss of income from the accident.
The Claimant answered that he had not been working for 4 weeks.
Mr Ronzani put it to the Claimant that the tax records say it differently, and the Claimant replied that if the tax records say that, but in his opinion, he had less revenue.
The Claimant agreed that although his GP had recommended psychological treatment, he had not received it.
The Claimant did not agree that he was exaggerating his case.
Mr Ronzani suggested that the Claimant had a lot of other health problems, not just related to his low back. The Claimant said, he had had issues because of the accident. He hurt his shoulders, his upper back and his lower back.
Mr Ronzani asked the Claimant about an entry in Dr Tomka’s clinical records of 13 August 2018 about a motor vehicle accident on 4 August 2018 when the driver of a car in front of the Claimant suddenly stopped. The Claimant brought his vehicle to a stop but the car behind hit his rear end. He complained to Dr Tomka of pain in his neck, upper and lower back, and shoulders.
The Claimant denied that he had had any accident in 2018, i.e., notwithstanding the entry in the clinical records where he is stated to have given a history to Dr Tomka of a rear end accident on 4 August 2018.
After some questions, the Claimant said he now remembered he had an accident in 2018. Mr Ronzani put it to the Claimant that, notwithstanding his low back issue, that had not stopped him from working full time. The Claimant said he had not stopped working because he has a family.
The Claimant denied that nothing had changed since the 2017 accident.
Mr Ronzani asked the Claimant where he had worked the previous week and he said at a Westfield Shopping Centre and that was for perhaps 6 months, but that job had been finished and they were now just checking the work.
What does the Claimant do between jobs? Nothing, he said. He had been working for Choice Ceilings for 7-8 years, he does not intend to leave because he would not be able to work with any other company because of his physical condition.
Mr Ronzani put to the Claimant the tax figures for his net earnings in a number of financial years. His most recent return to 30 June 2020 disclosed a taxable income of $35,000. He answered yes, if he was healthy, his income would have been $70,000 because he was working full time.
Mr Ronzani put to him that in 2014 the Claimant’s taxable income was $46,411. The Claimant said that was correct. His hourly rate was $60.
The Claimant agreed that in the tax year for 2016 his net income was $34,998.
The Claimant said his wife had her own job and she worked on her own ABN.
Mr Curran in Reply asked the Claimant about his August 2018 accident. The Claimant said it was a small accident. The rear end damage was only $800. He had only seen Dr Tomka because he had “no injuries”.
Since the motor vehicle accident, his wife had got work as a cleaner, cleaning offices to make up for the reduction in income.
CONSIDERATION OF CONSEQUENCES OF ACCIDENT
INSURER’S SUBMISSIONS
After reviewing the nature of the accident and the medical opinion, including the opinions of the MAS Assessors, the Insurer submits that the alleged disabilities are more likely than not work related and not caused by the accident. The Claimant’s alleged motor vehicle accident related disabilities were slight [Dr Stephen]. It was unlikely that the Claimant sustained injury to either shoulder, and Dr Stephen [12.11.2021] diagnosed soft tissue injuries to the lumbar and cervical spine.
The Insurer submits that according to the MAS Certificate of Dr Woo of 22 March 2021, physiotherapy was not reasonable and necessary in relation to the injuries sustained in the accident as the Claimant reported that physiotherapy did not give him any relief.
According to Insurance Australia Limited trading as NRMA Insurance v Scott [2016] NSWCA 138, the certificate is binding. Similarly, Dr Woo opined that the Claimant does not need any GP attendances.
The Insurer further submits that there is no medical basis for hydrotherapy, remedial massage or orthopaedic review.
The Insurer therefore submits that there should be nil allowance for future out-of-pocket expenses.
The submission continues to the effect that there is no impairment productive of economic loss. There is no medical basis for the Claimant reducing his hours and his incapacity is self-diagnosed. Dr Woo and Dr Stephen both recorded the Claimant had a full range of movement of both shoulders and most doctors were of the opinion that the injuries did not give rise to any significant disabilities. Dr Stephen saw no impediment to the Claimant increasing his hours to 35-40 hours per week. Dr Tomka certified the Claimant was fit for pre-injury duties as at 20 May 2017. There should therefore be a finding of zero loss of past or future loss of earnings.
CLAIMANT’S SUBMISSIONS
The submissions at [A11] and the updated submissions at [A35] do not attempt any serious analysis of the medical evidence and expert opinion on which the Claimant relies and although the submission prepared by Mr Curran after the PIC hearing is helpful, in other respects it is not directed to an analysis of the medical evidence relevant to the consideration of the medical consequences of this accident in terms of past and future economic loss.
Mr Curran has dealt at length with the Claimant’s credit.
Mr Curran submitted that the accident was such as to cause the injuries that the Claimant has told the treating and qualifying doctors and as found by the MAS determinations. The Claimant has been entirely consistent over a very long period in the histories he has given, and that the Claimant’s credit is undiminished.
Mr Curran further submitted that the Claimant’s antecedents are such as to create and fortify confidence in his creditworthiness. He has a long work record which Mr Curran submits is “exemplary”, particularly since coming to Australia. He has had a long history of work as a gyprock fixer which is very physically demanding work and at the upper extremity of difficulty.
Mr Curran continues that it is to the Claimant’s credit that he made a full and reasonably detailed disclosure of his relevant past events as to prior claims and injuries. In 2009, he did not miss any work because of that accident and the claim was resolved for what the Claimant says was a small amount. If these assertions were not true, they could have easily been challenged. Further, there is no suggestion that the Claimant was attending any doctor or health professional for any health issue in the 8 or so years between 2009 and 2017.
Mr Curran submits that the Claimant’s situation before the subject accident was highly favourable. He was 51 years, apparently happily married and the father of two. He was in solid secure and well paid employment, with a strong work ethic, a family man and prime bread winner. He had every motivation to work hard. Mr Curran submitted that the Claimant is creditworthy and did his best to mitigate his loss. Reliance is placed on medical opinions in the Claimant’s case which would be preferred to those of the Insurer and reliance is also placed on the MAS determination that the Claimant has a permanent WPI of 5% due to the lumbar spinal injury caused by the accident. This, he says, is a very significant injury in a trade such as that followed by the Claimant.
CONSIDERATION OF MEDICAL CONSEQUENCES OF ACCIDENT
The question (considered further later in the context of past economic loss) is whether the Claimant has a relevant impairment on the balance of probabilities which has in the past been and is likely in the future to be productive of economic loss.
This question is to be determined on the balance of probabilities.
In a decision of Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20, the Court of Appeal has given some guidance on how a court determines issues involving the balance of probabilities.
The Insurer at the PIC hearing on 14 February 2022 questioned the Claimant at some length and made oral submissions commencing with the submission that the Claimant’s creditworthiness was in question and that his evidence on a number of matters ought not to be accepted. It was submitted that the accident was benign in its effect on the Claimant and that it was a minor collision not giving rise to the injuries complained of. Mr Ronzani put it to the Claimant that:
“You know you are exaggerating.”
(which the Claimant denied).
Mr Ronzani asked the Claimant questions in relation to the August 2018 accident and suggested that he was exaggerating so that he could get compensation from the 2017 accident.
In Sdrolias, McCallum JA [16] referred to what McDougall J (with whom McColl and Bell JJA agreed) said as to findings on the balance of probabilities:
“… for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact …
… two schools of thought had been propounded as to the proof of facts, referred to as “the objective probability school” and the “belief school”:
“The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such-and-such has taken place or will do so’ …”
McCallum J continued [17]:
“McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches …”
Her Honour referred at [17] to what Hodgson J wrote extra-curially:
“… the two approaches could be combined … ‘if … the tribunal … believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.”
I find that the Claimant is a credible witness. There are objective grounds for coming to that view. First, he has had a good track record as a hard worker over a significant number of years. Further, sometime after this accident when the Claimant reduced, his hours, his income reduced such that his wife took on employment as a cleaner to make up for the reduction in income coming into the family.
The Claimant’s wife Blazenka Vidojevic obviously accepted her husband stating [2, 28 September 2021] that her husband had been badly affected physically and emotionally since the accident and that she had to do the housework he used to do himself.
I am persuaded that the following histories given were true on the balance of probabilities:
(i)The history given to Dr Stephen that on 19 May 2017 following the collision the Claimant was troubled by low back pain and also by intermittent neck and shoulder pain, is a true statement of the Claimant’s symptoms at the time he saw Dr Stephen.
(ii)The history given to Dr Parmegiani that after the accident he kept working full time for 3-6 months despite ongoing pain.
(iii)The history given to Dr Parmegiani that upon arriving home after the accident he took Panadol and Nurofen but continued to experience ongoing back pain over the weekend.
(iv)The history given to Dr Parmegiani that he continued to experience symptoms of pain for which he took analgesia and attended physiotherapy.
(v)The history given to Dr Parmegiani that eventually in the presence of chronic pain he became gradually more anxious and easily irritable as well as sad sometimes, and that he lost his appetite and slept poorly.
(vi)The history given of his current symptoms at the time of seeing Dr Parmegiani that he continued to suffer back pain 24 hours a day is true in the sense that it was the Claimant’s perception. In other words, I accept that the Claimant did not make up his report of pain in his low back but rather he had such pain.
(vii)The history given to Dr Parmegiani that his history of symptoms of chronic pain and dysphoric mood were symptoms that he subjectively felt and to that extent they were true and not made up.
I further find as a fact on the balance of probabilities that the Claimant’s current complaints as stated to Dr Woo were true in that they were consistent with the Claimant’s subjective beliefs as to the pain that he felt in the various areas that he reported.
Dr Woo was independent reporting to MAS. He concluded that the Claimant had symptoms of neck pain, back pain and bilateral shoulder pain immediately following the accident and was of the opinion that those injuries were related to the accident, and he assigned 5% WPI to the lumbar spine which he classified at DRE II. It is the case that he did consider that the injuries did not give rise to any significant disabilities.
It is significant that Dr Parmegiani accepted (as I do) the Claimant’s history that in the presence of chronic pain and the reduction in his working hours that his symptoms had continued to persist.
I accept as significant Dr Parmegiani’s opinion that the Claimant’s reported psychiatric symptoms (which I do not believe were fabricated) consistent with a DSM-5 diagnosis of Major Depressive Episode on the background of chronic pain.
I accept the opinion of Dr Parmegiani that the Claimant would benefit from a referral to a psychiatrist and treatment with antidepressant medication under the supervision of a psychiatrist.
I note the opinion of Dr Vickery, but it is significant that the opinion of Dr Parmegiani, who, again, was independent, was more recent (July 2018 vs March 2020). Accepting the significance of symptoms as reported to a psychiatrist in the formulation of psychiatric opinion and accepting the Claimant as a credible reporter, I find on the balance of probabilities that Dr Parmegiani’s conclusions are more likely to be correct.
I have considered the findings of Dr Guirgis in his two reports. His WPI assessment is not supported by the weight of the evidence, and I accept as more likely to be accurate that of Dr Woo who was independent.
I agree with the submission of counsel for the Insurer that Dr Guirgis is not qualified to assess whether or not a person has a posttraumatic stress disorder, and, in any event, I have accepted as likely to be accurate the opinion of Dr Parmegiani as to diagnosis.
On the balance of probabilities, the Claimant did sustain soft tissue injuries, described by Dr Guirgis as a posttraumatic mechanical derangement, which also triggered and aggravated underlying asymptomatic degenerative changes in the cervical spine and the lumbosacral spine.
Most significantly, on the balance of probabilities, the Claimant developed chronic pain. There are many attendances on his GP when he made complaints of pain. On 14 June 2018, for example, he complained to Dr Tomka of pain in his back which the doctor described as lumbosacral. Again, on 5 September 2018, he complained of pain in his back and then, again, on 3 December 2018 of pain in his back as well as various other complaints of pain, including, for example, on 23 January 2019 when he had pain in his neck and upper and lower back.
Given that I regard the Claimant as credible, I am persuaded that these complaints were truthful, not fabricated and reflected the Claimant’s genuine belief in his symptoms and how they were affecting him.
It is probably true that the Claimant is pain focussed, but he probably would not have been pain focused but for the accident.
On the balance of probabilities, the Claimant developed chronic pain which was associated by Dr Parmegiani with the development by the Claimant of psychiatric symptoms.
The Claimant has not had any chronic pain management.
I conclude that the Claimant probably still suffers from the ongoing consequences of the sprain or strain to his lumbosacral spine to which Dr Woo assigned DRE II 5%, WPI and as a result of the soft tissue injuries to the other areas, chronic pain which continues to affect the Claimant as a result of his genuine belief in the continued impact of the symptoms on him combined with the psychiatric symptoms which have been described above.
These conditions in combination have resulted in an impairment which has, both in the past and continuing, been productive of economic loss.
PAST OUT-OF-POCKET EXPENSES
PAYMENTS BY THE INSURER
The Insurer paid the amount of $3,021.81 pursuant to s 83 of the Act for which it claims a refund.
MEDICARE
The Health Insurance Commission paid $2,289.40.
OTHER PAST OUT-OF-POCKET EXPENSES
The agreed figure for payments in respect of Dr Tomka is $1,260.00.
In the Schedule of Damages [A5], the claim for past medical treatment for Dr Guirgis is made in the amount of $880.00. There were two consultations, the first being on 5 October 2017 described as an “initial specialist consultation” for $330.00 and the second on 5 June 2019 also for $330.00. Both invoices were directed to the Claimant. I consider these invoices to be reasonable and necessary.
The Claimant seeks recovery of an amount of $15.00 paid to Spectrum Imaging. This is supported by an invoice to the Claimant and although the description is not provided given the small amount, on a de minimis basis I consider it reasonable and necessary.
Medication is put at $25.00 per month. There is partial support for this claim being a report from Chemist Warehouse Liverpool for the purchase of Mersyndol Forte. In the period 25 May 2017 to 30 May 2019, there were 8 purchases, each at $11.99 covering a period of about 2 years, totaling $95.92.
In the period 14 October 2017 to 19 March 2019, the Claimant also purchased medication from Priceline Liverpool, being 12 bottles of Mersyndol Forte tablets at $12.00 per bottle, giving $144.00.
The total purchase of relevant medication over that 24-month period was therefore $239.92, giving a total estimated weekly amount of $2.31 ($239.92 / 104 weeks).
The Claimant has not produced precise evidence for past out-of-pocket expenses relevant to pain medication, but it is reasonable to conclude that he spent about $2.31 per week which, from the date of the accident to the date of assessment (254 weeks), gives about $586.74.
SUMMARY OF PAST OUT-OF-POCKET EXPENSES
· S 83 Payments $3,021.81
· Medicare $2,289.40
· Dr Tomka $1,260.00
· Dr Guirgis $880.00
· Spectrum Imaging $15.00
· Pain medication $586.74
Total Out-of-pocket Expenses $8,052.95
FUTURE OUT-OF-POCKET EXPENSES
The Claimant has drawn his claim for the cost of future treatment primarily from the opinion of Dr Guirgis [page 3] (Updated Submissions, 15 October 2021):
(i)Consultations with GP per annum $500.00 - $1,000.00
(ii)Consultations with specialists, including radiography $1,000.00
(iii)Physiotherapy $1,000.00
(iv)Medication $300.00
The Claimant’s main complaint is in respect of chronic pain.
Dr Woo did conclude that the Claimant did have symptoms of neck pain, back pain and bilateral shoulder pain immediately following the accident and those injuries were therefore accident-related. He also was of the opinion that on his examination of the Claimant there was tenderness in the lumbar spine with restricted movements.
Taking into account the opinion of Dr Woo and the Claimant’s own evidence, I am satisfied that the Claimant continues to this date to suffer from pain which by reason of its prolonged nature has become chronic.
That the Claimant continues to suffer from symptoms of pain in his neck, upper and lower back and both shoulders is supported by the medical entries made by his Dr Tomka.
The continuation of the Claimant’s pain symptoms is also supported by Dr Guirgis who on 24 August 2021 reported that the Claimant was still suffering ongoing symptoms and signs related to his injuries of 19 May 2017.
There is sufficient evidence to satisfy me on the balance of probabilities that the Claimant suffered from pain after and as a result of his accident and continues to suffer from it in the areas described by Dr Tomka, Dr Guirgis and Dr Woo.
It is noteworthy that the Claimant has not been treated for pain. Christian Byrnes, occupational therapist, refers [12.5] to the:
“extent of his injuries, chronicity of pain and loss of function …”
Dr Parmegiani, the independent certifier to MAS, refers to the Claimant’s Major Depressive Episode and states he would benefit from a referral to a psychiatrist and treatment with antidepressant medication. He makes his diagnosis of Major Depressive Episode on the background of chronic pain.
The evidence does not support visits to an orthopaedic specialist as proposed by Dr Guirgis, nor a buffer for physiotherapy once per week, hydrotherapy, or remedial message.
The evidence does, however, on the balance of probabilities establish the need for pain medication while the Claimant continues to have pain;
The Claimant does require specialist treatment by a psychiatrist as proposed by Dr Parmegiani. The duration of the need depends upon the continuation of the symptoms which cannot be determined with precision as he has not yet had treatment.
The Claimant on the balance of probabilities does need management of his chronic pain which probably would be multidisciplinary.
There is the possibility given the chronicity of the Claimant’s pain and the period of almost 5 years since the accident that pain management will not deliver the hoped for results and there is no guarantee that psychiatric treatment will lead to the resolution of the symptoms.
It is likely that the Claimant will incur expense for future treatment, including medication and on the basis of the evidence establishes the need the amount of which in dollar terms I cannot determine with precision.
On the basis of the authorities to which I refer below, I determine a buffer, the significant element of which is chronic pain management, of $15,000.00.
PAST ECONOMIC LOSS
I briefly summarise the submission for the Claimant prepared after the PIC Hearing by Mr Curran:
9.The Claimant’s after-tax income in the financial year 2017 was $957.04 per week (probably greater as he had been working on a reduced basis for Choice Ceilings in the 6 weeks period 19 May 2017 to 30 June 2017).
10.In the tax year to 30 June 2018, the Claimant’s after-tax earnings were $32,973.58 converting to $634.10 net per week, a drop of $322.94 per week from the net earnings of $957.04 per week in the previous year. Further, it is submitted that but for the accident his earnings in the 2018 financial year would have risen by an estimated 2.5% per annum in line with productivity increases and a small amount for inflation, giving net weekly earnings of about $980.00 net per week and a net loss in the financial year of $345.90 net per week.
11.The 2019 tax return showed a net income of $35,896.68 or $690.32 net per week. But for the accident his probable earnings would have increased by a further 2.5% to $1,004.50. It is submitted that the difference between the said probable earnings and actual earnings is $314.18 net per week.
12.The 2020 tax return and the assessment evidence give after-tax income of $24,791.62 or $476.76 net per week. Taking into account the submission that probable net weekly earnings would have increased by 2.5% to $1,029.00 results in a weekly loss to the Claimant of $552.24 net per week.
13.Using a similar process of reasoning, the net income for 2021 was $614.34 net per week and, again, the probable net earnings but for the accident increased by 2.5% to $1,054.62 results in a claim for that year of $440.28 net for that year.
14.While the income tax return for 2022 is not available, Mr Curran submits that the weekly loss for this financial year is about $450.00 net per week.
16.It is submitted that the Claimant has done his best to mitigate his loss. This is a very significant injury to have in the trade followed by the Claimant.
The primary submission of the Insurer [R11] is that no damages should be assessed for either past or future economic loss.
In further submissions for the Insurer by Mr Ronzani of 28 February 2022, the following arguments were put:
1. The allegation of earnings of $957.04 net per week at the time of the accident is based entirely on the tax returns for 2017.
2. I should have no regard to these records.
3. The 2017 partnership return recorded total business income of $109,902.00 with net earnings of $82,408.00. The return for 2017 contains an adjustment for associated persons of $40,000.00 resulting in net business earnings of $42,406.00. The submission argues that the reason for the adjustment of $40,000.00 is unclear and the Claimant failed to address this in his submissions and oral evidence. Further, the distribution of partnership earnings for the year are questionable. The earnings are split between the parties as to $61,204.00 for the Claimant and $21,204.00 for his wife. However, under “share of net small business income” the partnership earnings are distributed equally between the Claimant and his wife at $41,204.00 each. The Insurer queries whether the distribution of earnings was intended to be the former or the latter. The Notice of Assessment for 2017 issued by ATO on 1 August 2017 recorded the Claimant’s taxable income as $61,205.00. It is clear that before the financial year ended 30 June 2017, the Claimant’s wife received equal distribution in the partnership. It was not until after the accident that the partnership earnings were distributed unequally for period of 3 years and then reverted back to an equal distribution. Mr Ronzani reports to the “discrepancy in 2018 financial year”.
4. Mr Ronzani submits that these discrepancies give reason to place no reliance on the 2017 individual and partnership tax returns. Furthermore, the Claimant’s earnings for 2017 are grossly incongruous with previous years earnings and previous equal distributions from the partnership. The Insurer submits that absent the 2017 tax returns, the Claimant has no demonstrable financial loss and maintains its submission that there should be a finding of no loss of past or future earning capacity causally related to the accident.
CONSIDERATION OF PAST ECONOMIC LOSS
I refer to my findings on the nature of the injuries sustained by the Claimant and their consequences as set out above.
The development and the continuation of chronic pain is, so long as it continues, an impairment of the nature of that discussed in Medlin to which I refer at [169] and the question therefore is whether or not, in fact, it has been productive of economic loss.
I refer to what the Claimant said at [15] of his Primary Statement of 13 May 2020, namely that prior to the accident he was working an average of 50-55 hours a week, including every Saturday. He says there was regular Saturday work at 95% of the time and that Saturday work was very common in the industry and still is.
He continued [16] that when he had the accident his wife was not working, and he was the breadwinner. After the accident he worked 8 hours a day 40 hours a week plus Saturday work on occasions, probably amounting to about 42.5 hour a week, taking into account the reduced Saturday work. This pattern continued for about 3 months after the accident and during that period he called on friends he knew to the heavy work which he could not himself do.
He continued [16] that after the first 3 months he went onto 20 hour per week, 5 days a week working 4 hours a day. He continued that about 12 months before he made the statement, that is in about March 2019, he reduced his hours to about 24 hours a week working 3 days a week 8 hours a day, still on a contract basis for Choice Ceilings.
He continued that when he did light duty work and since then, he has had to take medication to get through the working day and he worked the lesser hours, mainly as an assistant rather than as an installer. He says [17] that he then went onto 20 hours a week of suitable duties.
He continued [18] that since the accident his income reduced dramatically.
The fact that there may be some discrepancies in the income tax returns does not derogate from the proposition that I consider that the information the Claimant provided as to his earnings as set out on the Schedule of Tax Returns is essentially truthful.
Mr Ronzani submits that before and after distribution of income it is clear that in the financial year ended 2017 the Claimant’s wife received an equal distribution from the partnership. He states by reference to the Schedule of Tax Returns reproduced above that it was not until after the accident that the partnership earnings were distributed unequally for a period of 3 years.
Mr Ronzani submits that the discrepancies to which he points are such that I should place no reliance on the 2017 individual and partnership returns. Further, he submits that the earnings for 2017 are grossly incongruous with previous years earnings and previous equal distributions.
In fact, the total business income for 2016 at $107,221.00 was consistent with the total business income for the following year.
I do consider that the conclusion that the income tax returns are unreliable and should not be used as a measure of past economic loss is a proposition that should not be accepted and, on the contrary, as Mr Curran submits, I should adopt the after-tax income figure for 2017 and arrive at the net weekly earnings for the Claimant of $957.04.
I consider that this finding is available on the evidence and is appropriate.
On the basis of the pre-accident net weekly earnings of $957.04 and accepting the Claimant’s evidence as truthful as to the reduction in his working hours, I find that as a result of the accident and the Claimant’s diminished capacity to work he lost income as follows:
(a)
19 May 2017 to 30 June 2017 (6 weeks) at $957.04 gives
$5,742.24
(b)
In the financial year ended 30 June 2018, the Claimant’s taxable earnings were $36,036.00 and the net weekly earnings after tax were $32,973.58 or $634.10 per week giving a net weekly loss of $322.94 (for 48 weeks). I do not accept the submission by Mr Curran that I should apply a productivity increase of 2.5% and a small allowance for inflation and cost of living increases. Firstly, the Claimant has not provided any evidence supporting these increases as applicable to the Claimant’s trade and, furthermore, he was an independent contractor. There is no evidence that he increased his hourly rate or that if he had sought to increase it, it would have been accepted by his principal.
The Claimant’s loss to 30 June 2018 was $322.94 per week. Assuming the Claimant worked for 48 weeks in that year, taking 4 weeks off spread through the year, he sustained a net loss to 30 June 2018 of
$15,501.12
(c)
In the financial year ended 30 June 2019, the tax returns and notices of assessment demonstrate gross business earnings of $39,989.00 and after tax - $35,896.68 or $690.32 net per week, leaving a differential of $266.72 net per week which over 48 weeks gives
$12,802.56
(d)
In the financial year ended 30 June 2020, the total business earnings were $27,148.00 and after tax - $24,791.62 or $476.76 net per week, giving a loss as compared to the financial year ended 30 June 2017 of $480.28 net per week which over 48 weeks gives
$23,053.44
(e)
In the 2021 financial year, the total business income was $35,170.00 before tax and after tax - $31,945.70 or $614.34 net per week, giving rise to a loss of $342.70 net per week which over 48 weeks gives
$16,449.60
(f)
Given that the 2022 income tax return is not available and, on the basis (on a buffer basis) that the loss continued, I assess from 1 July 2021 until 14 April 2022 (40.85 weeks) at $342.70 a week, giving
$14,001.74
Total past economic loss:
$87,550.70
FUTURE ECONOMIC LOSS
The Insurer submits that there should be no damages assessed for future economic loss for the following reasons:
(i)The unreliability of the Claimant’s evidence.
(ii)The Claimant’s lack of credit.
(iii)The medical expert opinions relied upon by the Insurer.
The Claimant’s submission prepared by Mr Curran argues that the Claimant is entitled to an award of damages for future loss of earnings as previously submitted. The submission of 15 October 2021 argues that the Claimant would have worked to age 70 and at the time of the submission [85] had 17 years of work left calculated at $408.00 per week and discounted 5% less 15% for vicissitudes, giving $209,051.00.
CONSIDERATION OF FUTURE ECONOMIC LOSS
The fundamental principle relevant to assessment of damages for future economic loss is:
(i)Does the Claimant have a relevant impairment?
(ii)Will it continue to result in financial loss?
The leading case is Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 where the Court by a majority of Deane, Dawson, Toohey, Gaudron and McHugh JJ stated the principle in the following terms:
‘2. A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct, but related requirements are satisfied. The first ... is ... that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second ... is (that) ‘the diminution of ... earning capacity is or may be productive of financial loss’ (referring to Graham v. Baker [1961] HCA 48)’
I refer to my findings on the nature of the injuries sustained by the Claimant and their consequences as set out above.
The process by which I am required to arrive at a proper determination of future economic loss is set out clearly in the cases.
In IAG Ltd t/as NRMA Insurance v Damian Mares [2016] NSWSC 1792, Hall J said this with respect to the correct assessment of future economic loss:
(a)s 126 does not prevent the award of a cushion or buffer for future economic loss [para 68];
(b)the following formulation, which was approved by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61, applies [para 69]:
(1)Assess the “most likely” of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);
(2)Assess the claimant’s economic prospects as a consequence of the accident;
(3)Compensate the claimant for the difference between (1) and (2), including, where appropriate, through the use of a buffer;
(4)Adjust (3) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (1) even had the accident not occurred;
(5)Include a statement of the assumptions made as the claimant’s most likely future circumstances and the appropriate percentage adjustment as to the above formulation see also Leslie & Britts, Motor Vehicle Law New South Wales, at [MAC.126.40].
In Dal v Chol [2018] NSWCA 219, White JA said [at 24]:
“… Indeed, an award for future economic loss based on an assessment of the difference between the respondent’s likely earnings as a qualified motor mechanic and his actual earnings at the time of trial ($217 per week) applied to his likely working life, discounted for vicissitudes and applying the five per cent discount rate to calculate the net present value of the loss over that period, would have been unexceptionable.”
In Allianz Australia Insurance Ltd v Kerr [2012] 83 NSWCA 13 Basten JA stated at [24]:
“The applicant's submissions focused on the language of s 126, but identification of the specific non-conformity relied upon would have illustrated the insufficiency of that approach. Section 126 does not purport to codify legal principles relevant to assessment of loss of earning capacity. It does not identify factors to be taken into account in making an assessment. Nor does it appear to depart from or vary the general law principle that the compensable loss is not a loss of income but the loss of capacity to earn income which "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; 106 CLR 340 at 347; State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71] (Heydon JA); State of New South Wales (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [86] (Beazley JA; Allsop P and Macfarlan JA agreeing). Income earned prior to the accident may well be the best evidential basis to assess the earning capacity of the claimant, but for the injury, subject to adjustment for the passage of time since that income was last earned. Income earned between the accident and the trial may be (but often is not) a good indicator of current capacity. The latter may be capable of extrapolation into the future, but it will usually be necessary to consider whether, and to what extent, both pre-accident capacity and post-accident capacity might have been and might be expected to vary in the future.”
His Honour continued at [26]:
“In Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638, three members of the Court (Deane, Gaudron and McHugh JJ) referred to the exercise in respect of hypothetical events, stating that "the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability": at 643. It has been submitted (though not determined) that s 126 replicates that approach: State of New South Wales (NSW Police) at [88]. If so, it appears to disregard the remarks of Brennan and Dawson JJ at 640:
"Although we agree with the general thrust of the reasoning on this point in the judgment of Deane, Gaudron and McHugh JJ, we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation."
His Honour then summarised the comprehensive review of the principles to be found in this area quoting from Heydon JA in Moss.
His Honour also reproduced the assumptions about future earning capacity at [31] and other events as noted in Nominal Defendant v Livaja [2011] NSWCA 121 at [41]:
“The assumptions or events upon which a baseline may commonly be calculated include:
(a)identification of the skills, training and experience of the plaintiff, as at the date of the accident;
(b)the work he or she was undertaking immediately prior to the accident;
(c)the likelihood that he or she would have continued in such employment, but for the accident;
(d)the possibility that he or she might have obtained promotion or other benefits, but for the accident;
(e)the age to which he or she was likely to have worked in that employment, and
(f)the possibility that the employment would not have been continuous."
S 126 of MACA
S 126 of MACA provides:
1)A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
2)When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
3)If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
Assumptions Pursuant to s 126
I make the following assumptions of fact pursuant to s 126 of the Act:
a.The Claimant would have continued in reasonable robust health and would have been able to do the work of gyprock fixer until he retired.
b.He probably would have worked as an independent contractor.
c.Given that the work of a gyprock fixer is heavy work he probably would not have worked to age 70 but would have stopped doing that work and probably stopped working altogether at some earlier point in his early to mid-60s. The Claimant at [12] of his statement says he would have been doing heavy work, i.e., the work of a gyprock fixer, until the age of 70, but does not take into account that his attitude to doing the heavy work of a gyprocker would probably have changed as he got older with the wear and tear on his body which comes naturally with aging.
d.There probably would have been availability of continuing work as a gyprock fixer.
e.After working for so many years as a gyprock fixer, it would be unlikely that the Claimant would have obtained lighter work in another industry if he ceased to work as a gyprock fixer.
The Claimant is at this stage suffering a loss of income of about $342.70 per week. There is, however, no certainty that the Claimant would continue to suffer this loss which primarily results from the reduction in his working hours. The reasons for this uncertainty are as follows:
(i)The Claimant has not had psychiatric treatment, but this will be available to him.
(ii)The Claimant has not had chronic pain management treatment. Chronic pain is the Claimant’s major current and continuing impairment. The pain is real to him, and I have accepted, given that the Claimant is a credible person, that he is likely to continue to have problems of chronic pain and fatigue.
(iii)Chronic pain management is expensive. Some programs, such as the Adapt Program at Royal North Shore Hospital, cost a significant amount of money. In any event, such programs or whatever program the Claimant commences are relatively expensive and as a matter of common sense would not be offered unless there was some reasonable prospect of resolution of chronic pain symptoms and if not resolution, significant improvement.
(iv)A further uncertainty is when the Claimant will cease working as a gyprock fixer given that it is a heavy job. I doubt that he would, in any event, have worked till the age of 70 given the nature of the work.
In circumstances of the likelihood of the loss being incurred in the future and the difficulty of assessing that loss with precision, I am permitted to award a buffer which takes into account that the loss will accrue in the short term and may continue into the medium term, or the loss may be reduced as a result of the improvement in the Claimant’s symptoms.
The Claimant was born in June 1966 and is therefore 56 years of age.
Taking into account vicissitudes at 15% and the fact that there is no entitlement to superannuation, and it is unlikely that there ever would have been, I assess a buffer of $125,000.00.
The authorities permitting me to award a buffer are : Penrith City Council v Parks [2004] NSWCA 20; Allianz Australia Insurance Limited v Kerr [2012] NSWCA 13 [considered and applied in Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, QBE Insurance (Australia) Ltd v Volokhova [2014] NSWSC 726], Sretenovic v Reid [2009] NSWCA 280 per McColl JA at paras 79-86, Allianz Australia Insurance Limited v Sprod & Ors [2011] NSWSC 1157 and Allianz Australia Insurance Limited v Zein [2016] NSWSC 196].
PAST GRATUITOUS CARE
CONSIDERATION OF PAST GRATUITOUS CARE.
The Claimant submits that I should assess damages for past domestic assistance from the date of the accident to 19 May 2020 (956 weeks) at $210.00 per week and continuing.
The submission is that the claim is supported by Dr Guirgis [5 June 2019, page 5], by the GP Dr Tomka [15 April 2019] and by the other material, including radiography appended to Dr Guirgis’ reports, and by the GP Progress Notes at [A4].
The Claimant’s wife made a Statement of 28 September 2021.
In [2], she said that her husband had been badly affected physically and emotionally and that she had to do the housework he used to do for himself before the accident. She sets out the tasks she now performs and the times those tasks take.
She states that she cannot continue “forever” to provide the level of domestic assistance and that at some stage the Claimant will need commercial assistance.
The Claimant’s Wife was not required for cross-examination at the PIC Hearing.
Spiros Katzakis, assessed the Claimant on 9 April 2020 by video link with the assistance of an interpreter. On the basis of the medical evidence provided to him and of his assessment of the Claimant, he did not support the need for past gratuitous care or continuing care.
As I previously recorded, Dr Woo for MAS assessed the treatment dispute, concluding that the Claimant’s injuries did not give rise to any significant disabilities, nor did they give rise to a need for domestic assistance.
Dr Parmegiani, again reporting for MAS, determined that there was no need for domestic assistance on psychiatric grounds.
I make no award for past domestic assistance.
FUTURE COMMERCIAL CARE
CONSIDERATION OF FUTURE COMMERCIAL CARE.
The determination of Assessor Woo as to the need for care is determinative to the extent of the dispute that was referred to him for assessment. Each of the disputes in [3, 1-4 inclusive] of his Reasons relate to the need for domestic assistance. The determinations in [30, 1-4] are binding. Do they, however, cover the question of commercial domestic assistance? As I read Insurance Australia Ltd trading as NRMA Insurance v Scott [2016] NSWCA 138, it does extend to commercial domestic care.
Assessor Woo at [30, 1-4] considered that such treatment was not reasonable or necessary.
On that basis, I make no provision for future commercial domestic assistance.
ASSESSMENT OF DAMAGES SUMMARY
Under s 94(1)(b) of the 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 $NIL
Economic losses
·Past loss of earnings $87,550.70
·Future loss of earnings $125,000.00
·Past Out-of-Pocket Expenses $8,052.95
·Future Out-of-Pocket Expenses $15,000.00
·Past Gratuitous Care $NIL
·Future Commercial Care $NIL
Total of economic losses and non-economic loss $235,603.65
Total Damages Assessed $235,603.65
The Claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
·S 83 payments $3,021.81
LEGAL COSTS AND DISBURSEMENTS
I assess the Claimant’s legal costs and disbursements in accordance with s 149 and s 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet and my reasons for any disputed claims are as follows:
·MAS Disputes (2x) $2,000.00
·Attendance at the PIC Hearing $1,250.00
·Conferences (6x) assessed at $300.00 $1,800.00
Regulated Disbursements:
·Dr M Guirghis – Consultation & Report 05/06/2019 $ 1,200.00
·Dr M Guirghis – Report 30/10/2019 $1,200.00
·Dr M Guirghis – Consultation & Report 24/08/2021 $1,200.00
·Dr K Tomka – Report 15/04/2021 claimed at $880.00 $330.00
Non-regulated disbursements are considered fair and reasonable (excluding GST) at:
·Occupational Therapy report 24 June 2020 $3,797.50
·Grant Johnston Consultant Report $6,270.00
·Angel Ristoff (Interpreter – 12 Occasions) $2,247.30
Terence Stern
Member (Motor Accidents Division)
Personal Injury Commission
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