Toprak v IAG Limited trading as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Toprak v IAG Limited trading as NRMA Insurance [2021] NSWPIC 365
CLAIMANT:	Naim Toprak
INSURER:	IAG Limited trading as NRMA Insurance
MEMBER:	Susan McTegg
DATE OF DECISION:	22 September 2021
CATCHWORDS:	MOTOR ACCIDENTS - Common law claim for damages; 61-year-old male injured as pedestrian in motor vehicle accident; serious pelvic fractures; fracture of the right fibula; injury to the right shoulder and lumbar spine; psychological injury; significant pre-existing lumbar spine condition, diabetes and psychological injury; damages assessed for non-economic loss, section 1.4 of the Motor Accident Injuries Act 2017 (MAI Act); whether non-economic loss should consider age of claimant; RACQ Insurance Ltd v Motor Accidents Authority of New South Wales and Reece v Reece discussed; not work for 18 years pre-accident; undertook work trial in week before accident; intention to return to work;assessed damages for past economic loss; nil damages for future economic loss; found impairment of earning capacity but not satisfied most likely future circumstances would have included paid employment; section 4.7 of the MAI Act; Held - damages assessed in favour of claimant for non-economic loss and past economic loss; costs assessed in favour of claimant.
DETERMINATIONS MADE:	1. On the issue of liability for the claim, the NRMA’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, I specify the amount of damages for this claim as $340,702.54. 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 $33,096.80 inclusive of GST.

Reasons for Decision
Issued under section 7.36(1) of the Motor Accident Injuries Act 2017

INTRODUCTION

Mr Naim Toprak (the claimant) sustained injury in a motor vehicle accident on 11 June 2018 (the accident).
I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of the injury sustained by the claimant.
This claim was the subject of an assessment conference on 14 September 2021. The claimant was represented by Ms Elizabeth Welsh of counsel instructed by Ms Katrina Lam of Brydens Compensation Lawyers. The insurer was represented by Ms Olivia Dinkha of counsel instructed by Mr Carl Burraston of Sparke Helmore, Lawyers. Ms Hursit Erdogan, a Turkish interpreter also assisted.
The insurer has admitted liability for the claim.
The insurer accepted liability for the claim for statutory benefits and has paid the claimant $8,927.56 by way of statutory weekly payments and seeks credit for that sum.
It is agreed the claimant is entitled to recover the amount of tax deducted from those weekly payments of compensation in the sum of $616.
Unfortunately, the videoconference process was beleaguered by technical problems. The claimant and the witness Ibrahim Emecen were assisted by Ms Erdogan. Notwithstanding those limitations I had the opportunity to assess the claimant during the assessment conference. Whilst his responses were forthright, albeit lengthy, I formed the view he sought to downplay the extent of his pre-existing problems.
However, there is no dispute the claimant sustained serious injury in the accident. The real issues are the quantum of the claim for non-economic loss and whether the accident has resulted in an impairment of his earning capacity which was productive of financial loss.
I am asked to assess damages in respect of the following:
(a)non-economic loss, and
(b)economic loss.

TRANSITION OF EXISTING DISPUTES TO THE PERSONAL INJURY COMMISSION

The Personal Injury Commission (the PIC) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020.
I am a Member of the Motor Accidents Division of the PIC. Clause 14A(1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.

REVIEW OF THE FACTUAL EVIDENCE

The claimant provided a statement dated 15 March 2021.
The claimant is now 61 years of age. He was born in Turkey and commenced work as a salesman at 15 years of age.
The claimant came to Australia at the age of 21 in 1980.
The claimant married in 1982 and had two children born in 1983 and 1989 respectively.
The claimant’s work in Australia related to kebab shops. He said he had both wholesale and retail businesses and was quite successful.
Following the breakdown of his marriage the claimant raised his children on his own. In his statement the claimant said he developed depression following the breakdown of his marriage and had to sell his business. He has been in receipt of either the disability pension or other Centrelink benefits since 2000.
The claimant described a long-standing problem with back pain and conceded he had taken Tramal 200mg for many years. He also acknowledged he was diabetic. However, notwithstanding those medical problems the claimant asserted he was able to manage his life quite well until the accident.
The claimant stated he did some work from time to time over the years related to the kebab industry.
In his statement the claimant said at the time of the accident he was doing some work in a kebab shop in Hector Street, Bass Hill owned by Ibrahim Emecen. The claimant said he used to go there for coffee and to help out around the shop. He stated in the week before the accident he did some paid work for Mr Emecen. The claimant said he was paid $500 for 25 hours work and was hopeful he would be able to reach an agreement with Mr Emecen for permanent paid work. Unfortunately, the accident occurred before a final agreement about a job was reached with Mr Emecen.

The pre-injury medical evidence

I reviewed the clinical records of Rickard Road Medical Centre for the period 27 September 2004 until 3 July 2020.
Whilst not conceded by the claimant the medical records suggest the claimant had difficulty managing his diabetes and was not always compliant with medical advice.
As early as 9 January 2007 it was recorded the claimant had poor diabetic control and on 20 February 2008 Dr Marolia reported the claimant had stopped going to the hospital clinic because he was “too stressed”, even though he was not checking his blood sugar levels at home. On 9 April 2008 Dr Marolia reported the claimant was not compliant with diet and tablets, on 29 September 2008 Dr Marolia recorded poor compliance with diabetic management and on 24 March 2009 he recorded diabetic neuropathy. On 20 February 2013 Dr Marolia reported poorly controlled diabetic compliance and peripheral neuritis and on 30 May 2017 the claimant had peripheral neuropathy of the right toe.
Those medical records also disclose a longstanding history of back pain, neck pain and right shoulder pain.
On 24 August 2007 Dr Marolia reported a CT scan showed disc pathology and recommended a trial of Panadol osteo.
The claimant consulted Dr David Manohar on 19 October 2004 in respect of neck pain, right shoulder pain, back pain, left thumb pain and heel pain sustained in an assault by a customer whilst working as a part time food shop assistant in Revesby.
On 30 November 2004 Dr Manohar reported a CT scan of the lumbosacral spine showed disc bulging at the L4/L5 level with facet joint changes bilaterally at the L4/L5 level. Dr Manohar referred the claimant to Professor George Murrell for his opinion in respect of shoulder surgery. The claimant was reviewed by Dr Manohar again on 1 February 2005 and on 5 April 2005.
The claimant has been under specialist cardiac care after he was diagnosed with double vessel coronary artery disease in 2000. He had a myocardial infarction followed by stenting in June 2005.
On 25 November 2008 the claimant consulted Dr Marolia after falling and injuring his tail bone. He was referred for an x-ray.
On 14 December 2008 the claimant consulted Dr An with swelling of the right lower shin and the back of the right foot after being assaulted whilst serving behind the counter in a take-away shop.
On 18 February 2009 Dr An recorded complaints of back pain radiating to the left buttock and lower limb and on 5 March 2009 Dr An recorded severe burning pain in the left shin, ongoing for years. Dr An reported a CT scan of the lumbar spine disclosed degenerative bulging of two lumbar discs.
On 7 November 2010 Dr An reported a history of chronic back pain and prescribed Tramal.
The claimant was involved in a motor vehicle accident on 21 December 2009 and complained of pains in the right chest and the cervical region.
The claimant saw Dr Marolia for left leg pain on 28 February 2012. He suggested a referral to a neurologist to work out the cause of the pain.
On 18 April 2012 the claimant was involved in a slip and fall resulting in complaints of pain to the lower back, right thigh, right knee, and right ankle. An x-ray of the right knee diagnosed osteoarthritis.
On 20 June 2012 Dr Marolia reported on and off back pain.
On 11 July 2012 Dr An reported pain in the lower back and right lower leg.
A CT scan of his lumbar spine dated 8 March 2013 demonstrated disc protrusions at L3/4, L4/5, and L5/S1 whilst an MRI of his lumbar spine dated 23 May 2013 noted the L5/S1 disc protrusion was impinging upon the L5 nerve root.
Dr Akkerman, psychiatrist, prepared a medico-legal report on 14 February 2014. The claimant was diagnosed with major depression and assessed with a 25% whole person impairment (WPI). Dr Akkerman noted that the claimant could not work at all due to the severity of the symptoms
Dr McKechnie, neurosurgeon, saw the claimant on 7 May 2013 in respect of complaints of lower back pain radiating into the buttock and down the right leg. The claimant also had pain in the neck and right shoulder.
On 13 June 2013 Dr McKechnie stated the MRI of the lumbar spine confirmed a small to medium sized right L5/S1 disc protrusion impinging upon the L5 nerve root.
Dr McKechnie referred the claimant for physiotherapy of his right shoulder and cervical spine.
On 17 March 2014 Dr McKechnie reported that the claimant would be fit for part time light work with a 5kg lifting restriction, no repetitive bending, and no lifting above shoulder height.
Dr McKechnie reviewed the claimant on 5 February 2015 and noted significant improvement following cortisone injections to the cervical spine. On 11 March 2015
Dr McKechnie noted further improvement following lumbar cortisone injections and recommended the claimant continue with his self-directed exercise program. He concluded the claimant was unfit for work given his persistent pain.
Dr Giblin, orthopaedic surgeon, in a medico-legal report dated 6 January 2014, diagnosed the claimant with soft tissue injuries to his right shoulder, cervical spine and low back with referred symptoms to his right leg on a background of pre-existing age-related constitutional changes. He was permanently unfit for heavier tasks but may be fit for a sedentary part time job not exceeding 20 hours per week.
On 19 April 2017 the claimant consulted Dr Susan Mulligan, ophthalmic surgeon. She reported evidence of pre-proliferative diabetic retinopathy.
The claimant consulted Dr Shamsuddin on 9 September 2017 to obtain a script.
Dr Shamsuddin reported the claimant was a regular patient of Dr Jai (Marolia) and had been taking tramadol for a long time.
On 19 October 2017 Dr Marolia reported the following chronic illnesses: diabetes, chronic back pain, high blood pressure and high cholesterol. He commenced a care plan for the claimant including referral to a dietician and a physiotherapist.
On 6 November 2017 the claimant consulted Dr Marolia for his chronic back pain and was prescribed Tramal.
On 6 December 2017 the claimant was admitted to Bankstown Hospital having sustained a laceration of his right 5^th finger which required surgical repair.
The claimant was on a variety of different medications for many years prior to the subject accident, including Panadol Osteo,Tramal, and Avanza, an antidepressant.
On 7 March 2018 the claimant reported back pain and sought a prescription of Tramal

The accident

On 11 June 2018 the claimant parked his vehicle on Hector Street, intending to visit the kebab shop. He got out and closed his door but before he had taken more than a couple of steps the insured vehicle came around the corner and veered onto his side of the street. The claimant tried to turn and go back to his vehicle, but he was struck on his right-hand side by the front of the vehicle. He was thrown into the air and landed on the roadway. The insured driver fled the scene without rendering aid or contacting emergency services. The claimant stated he experienced terrible pain through his body, and he thought he was going to die.

The post-accident medical evidence

The claimant asserts he sustained the following injuries in the accident:
(a)fractures of the pelvis with fractures of the superior and inferior public rami, disruption of the pubic symphysis and injury to the right sacroiliac joint;
(b)fracture of the right fibula and suspected non-displaced fractures of the bases of the second and third metatarsal bones.
(c)fracture of the ribs;
(d)injury to the right shoulder;
(e)injury to the lumbar spine;
(f)multiple abrasions, and
(g)psychological injury.
Following the accident on 11 June 2018, the claimant was taken by ambulance to Liverpool Hospital where he was hospitalised until 5 July 2018. He came under the care of Dr Walker orthopaedic surgeon for his pelvic fractures and right ankle fracture.
On 12 June 2018 the claimant underwent open reduction and internal fixation of the pelvic fractures performed by Dr Richard Walker. His right sided ankle fracture was treated in a boot. The claimant was non weight bearing on the right leg for nearly three months.
The claimant was discharged home into the care of his daughter on 5 July 2018.
On 22 July 2018 the claimant attended Liverpool Hospital in relation to his anxiety, flashbacks to the accident and insomnia. The treating psychiatrist noted the claimant’s suicidal ideation, hypervigilance, anxiety, and possible post-traumatic stress disorder (PTSD) symptoms from the accident. He was discharged with a script for Temazepam and with a recommendation that he be referred to a psychologist.
The claimant was reviewed by Dr Walker on 24 July 2018. He described the pelvic injury as significant and noted the claimant had ongoing pain and anxiety around his injuries.
The external fixature was removed by Dr Walker on 26 July 2018. Following that surgery, the claimant was non weight bearing on the right side for a further six weeks.
On 31 July 2018 the claimant presented with PTSD after the accident. He was on Temazepam but was no better. He was depressed and anxious. He had poor sleep, low self-esteem, depressed mood, anxiety, irritability, irrational fears, panic attacks, and compulsive behaviour.
On 8 August 2018 the claimant attended a psychiatrist. His wounds were healing well, and he was assessed as fit to drive. The claimant continued to attend regularly in relation to his physical and psychological issues.
The clinical records of Western Sydney Chiropractic have been provided as of 15 September 2020. The claimant was referred to Gokce Oncu by his general practitioner on 29 August 2018 in respect of his pelvic injuries, lower back, and right shoulder. On 2 October 2018 the claimant reported lower back pain, but improvement in his shoulder, ankle, and hips. On 6 November 2018 he attended with acute pain in the left side of his groin due to fractures in the left pubic ramus. He was unable to walk due to groin pain. The last recorded treatment was on 27 November 2018, when it was noted his pain had lessened and was slowly getting better.
The claimant was reviewed by Dr Walker on 28 August 2018 when he reported shoulder pain on the right side. The claimant was having difficulty mobilising with a frame with pain in both arms including his hands. The sacral fracture was still visible whilst the anterior pelvic fractures were healing. Dr Walker stated the claimant could start weight bearing as tolerated on the right leg and he recommended physiotherapy and rotator cuff strengthening exercises for the shoulders.
The claimant was referred to Keystone Professionals on 12 September 2018 to assess his need for domestic assistance.
On 13 September 2018 Dr Marolia referred the claimant to Dr Ozdemir, psychologist for depression, anxiety, and PTSD under a mental health care plan.
In a statement dated 3 October 2018 Dr Walker described the claimant’s injuries as significant and severe.
Dr Walker reviewed the claimant on 16 October 2018. He stressed the pelvic injury would cause permanent impairment and disability. The claimant was walking with a significant limp and whilst he stressed the importance of the claimant remaining active and trying to do activities including walking and standing, he stated he may need to use a scooter to access the shopping centre in the longer term. Dr Walker recommended ongoing physiotherapy and felt hydrotherapy may be of benefit.
On 20 November 2018 Dr Walker reported the claimant continued to have pain in the pelvis and suggested he continue weight bearing as tolerated and continue with physiotherapy.
Dr Marolia noted on 8 March 2019 that the claimant required a driving medical certificate and disability parking as the claimant could only walk short distances due to his multiple fractures and resultant arthritis.
On 12 March 2019 Dr Walker reported ongoing buttock pain which he concluded was most likely related to the pelvic fractures. He stated he suspected in the longer term the claimant’s pain will continue.
The clinical records of Bodyfit Therapy record treatment with practitioner Gokce Oncu over the period 23 December 2019 to 9 September 2020. These records show the claimant has undergone treatment to his pelvis, right shoulder, right hip, right foot and ankle, and lower back. The last recorded attendance was on 5 August 2020 when he complained of on/off pain which was mainly stabilised to a level of about 4-7/10. He experienced spontaneous sharp pain associated with right lower limb nerve symptoms.
The claimant continued to report his accident-related symptoms frequently since the accident and has been prescribed pain medications. On 8 January 2020 Dr Morian noted that the claimant had been on Tramal for the past 10 years and considered the claimant had an addiction. He recommended pain management, but the claimant was not interested.
The claimant reported ongoing back pain in April and June 2020 and was prescribed Tramal.
The claimant was assessed by Dr Graham Hall, occupational physician at the request of the insurer on 28 August 2020. Dr Hall noted the use of an interpreter would have assisted as the claimant’s English was not good. Dr Hall reported the claimant stated he was not working at the time of the accident but was helping the owner of the shop to get started.
Dr Hall reported the claimant was living alone in community housing, but his daughter brought him prepared food every couple of days and undertook any significant housework. He reported continuous pain over the cowl of the right shoulder, with occasional symptoms into the forearm and the fingers. The claimant also complained of continuous pain in the back, right hip, and down the thigh which was worse on walking. Dr Hall noted the claimant walked at reasonable speed but with a marked limp favouring his right leg.

Dr Hall concluded there would be little change in the claimant’s condition in the medium term. He also stated: “I am aware of the previous back injury but it seems not to have impacted significantly on Mr Toprak’s life, in contrast to the subject injury”.
Dr Hall assessed a 28% WPI in respect of the injury to the pelvis.
In relation to capacity for employment Dr Hall noted the claimant had not resumed the part time delivery work he was doing at the time of the accident, but he thought the claimant would find such work difficult, although not impossible, to resume.
The claimant was assessed by Clinical Associate Professor Fearnside, neurosurgeon on 7 December 2020. The claimant was able to walk for short periods with a stick for support on level ground. He had chronic low back pain radiating to the right buttock, chronic pain around the right ankle and some impaired sensation to the right shin. The claimant reported minor generalised pain in the left leg and pain and stiffness in the right shoulder associated with a loss of range of motion.
At that time the claimant was having physiotherapy once or twice a week when he could afford it. He was living with his son and was independent in self-care. The claimant’s children helped him with domestic chores. His sleep was interrupted. He was able to drive short distances and able to shop independently for light purchases.
Associate Professor Fearnside reviewed the clinical notes of Rickard Road Medical Centre and noted the history of pre-existing back pain. He also reviewed the report of Dr Hall who noted there had been a fracture of the vertebral transverse processes of L2-L5. He agreed with Dr Hall that there was a 28% WPI for the injury to the pelvis but concluded the transverse processes fracture of the lumbar spine would result in an additional 5% WPI. He also assessed a 7% WPI for the right ankle injury and 5% WPI for the right shoulder. He opined a total WPI of 39%.
Associate Professor Fearnside concluded the claimant would be unsuitable for working in a kebab shop in customer service and in making kebabs because of his limited capacity to stand and his predominant pain.
The claimant also had several unrelated medical issues. In May 2019 Dr Kozman diagnosed the claimant with Crohn’s Disease and referred him to a gastroenterologist Dr Sharaiha for management. He suffered with high blood pressure and high cholesterol and also tested positive for TB. The claimant attended Bankstown Hospital in January 2020 for an angiogram and in February 2020 he underwent triple cardiac bypass surgery at Royal Prince Hospital.
When questioned at the assessment conference the claimant stated he continues to have pain in the region of his back and hips, down both legs and in his right foot and ankle. He has difficult sitting, standing or walking for long periods, he limps and finds it necessary to walk with the aid of a walking stick.
The claimant was questioned at length about his pre-existing conditions. He agreed prior to the accident he suffered from back pain which travelled down his legs and also from neck pain for many years. Under questioning by Ms Dinkha, the claimant finally agreed he had had trouble walking from time to time due to what he described as “muscle pain”. He also agreed he had suffered from pain in the right shoulder. However, the claimant was adamant that the pre-existing pain was not as severe as it was now and had not affected his lifestyle.
The claimant stated his pain had become much worse since the accident and has adversely affected his lifestyle. The claimant also described the psychological impact of the accident stating he never feels well, he has lost confidence and no longer enjoys life.
He said he was last in paid employment in 2000 although he conceded he had, now and then, worked part time but without pay. The claimant stated pre-accident he was unable to work due to pain, psychological problems, and his family. He stated up until 2017 or 2018 he was engaged in providing care and support for his family, even though his children are now 38 and 30 years of age respectively and have been adults for many years.
During the assessment conference the claimant was questioned at length about the question of care and assistance. He was referred to a Centrelink Job Capacity Assessment Report which detailed an assessment on 11 July 2014 where it was reported “generally children undertake household tasks, infrequently undertakes light household tasks”. The claimant ultimately conceded his children helped by undertaking physical tasks for him pre-accident.
The claimant was adamant that his failure to resume work for at least 10 years before the accident was not solely due to chronic pain but because of the need to provide care and support for his family.
The claimant stated by 2017 or 2018 he was satisfied that his two children were settled and working, and he then felt ready to return to work or go back into business.
The claimant’s daughter Serap (Sarah) Toprak provided a statement dated 11 June 2018. She said the claimant had heart problems before the accident and she provided him with some assistance in terms of shopping and cooking here and there, but not on a regular basis. She stated despite his health problems the claimant was largely independent before the accident. Further, even though the claimant had struggled with his mental health for many years Ms Toprak stated he was finally getting back to work in the kebab shop when the accident happened.
Ms Toprak was also questioned at the assessment conference. She was an honest, straight forward witness. She was aware her father was not able to work, due to a sore neck and a back problem but stated his condition had improved and he wanted to get back to work. Ms Toprak was not aware the claimant had participated in a work trial at the time of the accident but was aware he was going to look for a job.
Mr Toprak asserts her father, because of the accident, is now physically and mentally challenged. She described his depression as crippling and isolating.
Ms Toprak stated following the accident she provided the claimant with care in her home for about five months before he was fit to return home. She said since the accident the level of care required by her father has increased significantly. She now assists her father with cooking, cleaning, shopping, and laundry.

THE INJURY SUSTAINED BY THE CLAIMANT

There is no doubt as to the serious nature of the injury sustained by the claimant. Whilst there can be no doubt the claimant suffered from pre-existing chronic back pain together with intermittent neck and right shoulder pain, I have no hesitation in accepting that the pain now experienced by the claimant, particularly in the region of the pelvis, low back and down the right leg including the ankle is much more severe.
I am also satisfied that the claimant had some capacity for work, probably part time light work, in the period prior to the accident, particularly having regard to the opinions of Dr McKechnie and Dr Giblin. It is unclear why the claimant had not sought a return to work at an earlier date. I do not accept the claimant was unable to work because of the need to provide care and support for his then adult children. I can only assume that the reasons were multifactorial, including the claimant’s chronic back pain, mental health, diabetes, cardiac condition, and his family concerns.
I am also satisfied that the accident has resulted in the destruction of any residual earning capacity having regard to the opinion of Associate Professor Fearnside, the reservations of Dr Hall and the testimony of the claimant.

THE ASSESSMENT OF DAMAGES

Non-economic loss

Section 1.4 of the MAI Act defines non-economic loss as including pain and suffering, loss of amenity of life, loss of expectation of life and disfigurement.
The claimant submitted an appropriate assessment of non-economic loss is the sum of $500,000.
The insurer submits an appropriate assessment for non-economic loss is $200,000.
Whilst the claimant had considered himself incapacitated for work over many years before the accident, I am satisfied having regard to the evidence of the claimant, Ms Toprak and Mr Emecen that the claimant was feeling well enough to contemplate a return to work shortly before the accident. I also accept the evidence of Ms Toprak that the claimant lived a largely independent life with some assistance from time to time with domestic chores in the lead up to the accident.
That independence has been largely curtailed by the effects of the accident. I am satisfied that there has been a significant worsening of the claimant’s levels of pain and disability as a result of the serious injury sustained in the accident and the associated psychological condition. There is no likelihood of improvement and the claimant’s current quality of life is likely to continue unchanged.
However, when assessing non-economic loss, I cannot disregard the impact of the claimant’s pre-existing condition and the other health conditions from which he suffers, notably diabetes, cardiac disease and Crohns disease.
In RACQ Insurance Ltd v Motor Accidents Authority of New South Wales (No. 2) [2014] NSWSC 1126, the court stated the principle expounded by the Court in Reece v Reece (1994) MVR 103 that a plaintiff’s non-economic loss damages must be reduced by reference to his age is not applicable in claims under the Motor Accidents Compensation Act 1999 (the forerunner of the MAI Act) as Part 5.3 of the Act does not apply the proportionality principle in awarding non-economic loss damages.
However, when assessing damages for non-economic loss the age of the claimant is still a relevant consideration when taking into account the period over which the pain and suffering will be experienced. In this case the claimant is 61 years of age with a life expectancy of 24 years.
Noting the current maximum payable for non-economic loss is $590,000 I consider an appropriate award for non-economic loss to be the sum of $300,000. I assess damages accordingly

Past Economic loss

A claim for past economic loss was made calculated at $1,300 net per week on the basis of employment with Ibrahim Emecen
In relation to the claim for statutory benefits Mr Emecen had provided an undated handwritten statement in which he stated the claimant had started working at HPS Adam’s Pizza and Kebab on 5 June 2018 as a permanent part time worker and with the hours increasing later. A payroll advice was provided showing the claimant was paid $500 gross and $463 net for 20 hours work in the week 5 June 2018 to 11 June 2018. This was supported by a NRMA form completed by Mr Emecen and dated 19 September 2018. In that form he described the claimant’s role as permanent part time in customer service/delivery. Moreover, he stated the position will be available once the claimant has fully recovered.
A statement was provided by Mr Emecen dated 5 July 2021. He has been the owner of HPS Adams Pizza and Kebab in Bass Hill for five years. He stated he was aware of the claimant’s reputation in the kebab business and that he was well known as one for the first people to open a wholesale, manufacturing business.
The evidence from the claimant and Mr Emecen is largely consistent. The claimant was friends with Mr Emecen’s father-in-law, and it was agreed he should do a work trial with Mr Emecen. Mr Emecen offered to pay the claimant $500 a week during the trial.
Mr Emercen stated his intention was to utilise the claimant’s kebab making knowledge to make the kebab meat in-house, cutting out the wholesaler thereby reducing his overheads and increasing the profit for his business.
In his statement Mr Emecen stated had the accident not occurred he would have hired the claimant on a full-time basis and paid him approximately $1,300 per week after tax. He also stated he had observed the claimant to be fit and able to work long hours in the kitchen making kebab meat without any difficulty.
There is no dispute the claimant completed a work trial with Mr Emecen in the week or two prior to the accident and was paid $500 for 20 hours work.
Both the claimant and Mr Emecen stated the accident intervened before they had an opportunity to discuss permanent employment, hours of work and wages. The claimant believed he would have been paid $1,300 to $1,500 net per week for full time employment.
Mr Emecen stated the during the work trial the claimant worked three to four hours a day for four days a week. During the trial he observed the claimant cutting vegetables, cutting kebabs and serving customers. Mr Emecen stated the claimant was very experienced in the field, he was a healthy man of about 50 years of age, and he could carry out the duties required. He stated if he had offered the claimant a job, he would have been paid $1,000 to $1,200 per week for 12 to 16 hours per week but with the option of an increase in hours if sales had increased.
The difficulty with the evidence of Mr Emecen is that he was not aware of the claimant’s pre-existing medical history and his assessment that the claimant was capable of full-time employment was based on his limited observations of the claimant for not more than four hours in any given day.
Whilst there was no firm offer of employment on the table at the time of the accident,
I am satisfied having regard to the evidence of the claimant and of Mr Emecen that the work trial was considered satisfactory and that, in all, likelihood an agreement would been reached, and the claimant would have attempted a return to work in the kebab industry.
However, noting the claimant had not worked in paid employment for the preceding 18 years and having regard to his pre-existing health conditions, in particular, his chronic back pain, I am not satisfied the claimant would been able to maintain full time employment or employment on an ongoing basis.
Even though the claimant stated he wanted to get back to work prior to the accident he was not well motivated to maintain paid employment having regard to his 18 years out of the workforce. I think it unlikely the claimant would have worked any longer than18 months having regard to the deterioration in his cardiac condition in or about January 2020.
Having regard to the uncertainty as to the hours available and the capacity of the claimant to work any more than 12 to 16 hours per week I propose to assess past wage loss by reference to the amount paid for the work trial of $500 gross or $463 net per week for a period of 18 months.
Accordingly, I propose to allow damages for past economic loss calculated at $463 net per week for a period of 18 months or 78 weeks in the total sum of $36,114.
I also allow damages for loss of superannuation benefits assessed at 11% of the past net wage loss in the sum of $3,972.54.
The claimant is also entitled to recover the taxation payments deducted from the statutory payments known as the Fox v Wood component in the sum of $616.

Future economic loss

In calculating any such loss, I must have regard to the provisions of section 4.7 of the MAI Act which states damages may not be awarded for future economic loss unless the claimant establishes the assumptions about his future earning capacity accord with his most likely future circumstances but for the injury.
Whilst I accept the accident resulted in a further impairment of the claimant’s earning capacity, I am not satisfied that his most likely future circumstances had the accident not occurred included paid employment.
Dr McKechnie and Dr Giblin concluded the claimant had a capacity for part time light work in 2014 yet no attempt was made by the claimant to return to work until shortly before the accident. The claimant was at pains during the assessment conference to suggest that the reason he had not returned to work at an earlier date was his need to provide care and support for his adult children.
Having regard to the claimant’s apparent lack of motivation to participate in paid work and having regard to his pre-existing health conditions I am not satisfied the claimant would have maintained employment even if the accident had not occurred.
I have already concluded that, in my view, it was unlikely the claimant would have maintained employment in the kebab industry after undergoing cardiac bypass surgery and on that basis, I find the accident has not caused a change in the claimant’s most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR and Husher v Husher (1999) 197 CLR 138, the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in her earning capacity and, if so, whether that loss or diminution will result in economic loss.
Whilst I accept the accident has resulted in an impairment of the claimant’s earning capacity, I am not satisfied that such impairment will result in economic loss where
I am not satisfied the claimant was likely to have maintained paid employment.
Accordingly, I make no allowance for future economic loss.

ASSESSMENT OF DAMAGES SUMMARY

Under sub-section 7.36(1)(b) of the 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:
Non-Economic Loss  $300,000.00
Economic losses
Past loss of earnings   $36,114.00
Past loss of superannuation  $3,972.54
Fox v Wood$616.00
Total Damages Assessed  $340,702.54
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
Statutory weekly payments  $8,927.56

COSTS AND DISBURSEMENTS

The insurer does not take issue with the claim for costs and disbursements made by the claimant.
I have allowed four conferences as claimed.
I have also allowed an additional four hours for the assessment conference noting the matter did not finish until 3.35 pm.
I otherwise assess the claimant’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet.

Susan McTegg

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 365

22 September 2021