Verhagen v GIO
[2021] NSWPIC 302
•23 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Verhagen v GIO [2021] NSWPIC 302 |
| CLAIMANT: | Alexander Verhagen |
| INSURER: | GIO |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 23 August 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Assessment of non-economic loss; amputation following on pre-existing issues; factors to consider following catastrophic and traumatic injuries in assessment of non-economic loss; assessment of economic loss; material lacking in support of intention to return to full time work; general reduction in ability to earn income from small scale primary production; assessment of medical material and assessment of impacts of prior medical issues as effect and capacity for work; legal costs claimed; Held - the 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; entitled to payment of legal costs. |
| 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 Act2017 (the Act), I specify the amount of damages for this claim as $425,000. 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 $32,382.15 inclusive of GST. |
Reasons for Decision
Issued under section 7.36(1) of the Motor Accident Injuries Act2017
Background
An Assessment Conference was conducted in this matter on 20 July 2021.
The matters requiring assessment are limited to non-economic loss and economic loss.
Alexander Verhagen (the Claimant) was questioned at the Assessment Conference and further submissions were made by the parties.
The Claimant is a 66 year old man who was severely injured in a motor vehicle accident which occurred on 11 February 2018.
Amongst other injuries sustained by the Claimant was a need for an amputation of his right leg below his right hip.
The matters requiring assessment are limited to non-economic loss and economic loss. There are a number of matters that touch upon the assessment on these two heads of damage including the pre-existing medical conditions suffered by the Claimant and what effect these would have had on his ability to work notwithstanding the catastrophic injuries he suffered in the motor vehicle accident. The injuries arising out of the motor vehicle accident have had the effect of completely eradicating any residual earning capacity of the Claimant.
The Claimant
The Claimant is a remarkably strong individual who has dealt with significant prior medical issues. In 2003 he brought a claim against his employer of 30 years, NSW Police Force, in respect to the development of post-traumatic stress disorder. This claim resolved for a payment of about $600,000. Thereafter the Claimant, showing great tenacity, returned to the workforce and was working as a bus driver. Notwithstanding this the Claimant continued to suffer lower leg problems in particular knee problems. These developed in about 2007 and resulted in numerous surgical procedures and knee replacements between 2007 and the third knee replacement he underwent in March 2017.
As part of these problems, which caused him to cease work as a bus driver in 2012, the Claimant also developed significant infections following the insertion of a defective prosthesis to his left knee. This led to the Claimant bringing a medical negligence action which resolved earlier in 2021 for a payment to the Claimant of $915,000 inclusive of legal costs.
In general, I found the Claimant to be a man of great strength and resilience who has suffered significant setbacks during his life but continues to maintain a positive outlook notwithstanding his significant pre accident motor vehicle accidents and the catastrophic consequences of the accident of 11 February 2018.
Medical materials
Following the accident the Claimant was in hospital for about four months. In addition to rib fractures, pelvic fractures and the like he underwent an amputation of the right leg above the knee. This has led to him being obliged to use a wheelchair. He has very significant restrictions on his mobility. He has suffered reduced socialisation, depressed mood consequent on the accident. His capacity to engage in pre-accident social, sporting, domestic and recreational activities has basically been destroyed.
Th Claimant readily admits to a number of significant pre-existing medical problems. In 1996 he was involved in a motor vehicle accident which left him with a fractured right forearm as well as leg fractures. As stated above he suffered Post Traumatic Stress Disorder whilst being a member of the NSW Police Force and was discharged as a result of the onset of Post-Traumatic Stress Disorder.
In 2008 he underwent a bilateral knee replacement. He needed further surgery to remove both the prosthesis. He developed an infection in his right knee which required him to receive a third prosthesis to the right knee.
He previously suffered from shoulder stiffness.
The Insurer obtained a significant amount of medical material which addressed the Claimant’s pre-accident difficulties.
A report of Dr D Osbourne dated 3 April 2018 states:
“Mr Verhagen has been unfit for work in any capacity since the time of his revision knee replacement on 12 November 2013. This incapacity has been permanent and ongoing since this date.”
In a subsequent report dated 14 June 2016 Dr D Osbourne states:
“Mr Verhagen is not fit for any form of employment. This will be ongoing and permanent and this incapacity relates to his right knee being unstable and weak.”
The Claimant also had an ongoing left hip injury. Indeed, at the time of the accident he was scheduled to undergo surgery to his left hip. This ultimately occurred in October 2018.
The Claimant suffered a number of significant lower limb problems prior to the accident. The report of Dr R Pickles dated 14 December 2016 notes that the Claimant:
“has been plagued with recurrent episodes of cellulitis associated with localised boils on is right leg over the last few months.”
In the period leading up to the accident the Claimant was not in a healthy state. The clinical notes dated 6 September 2017 note the Claimant’s weight at 170.9 kilograms. It is noted:
“knees sore when walking encouraged to do swimming classes to lose weight.”.
Whilst I note the Claimant did express a hope that, following his hip replacement scheduled for early 2018, he would return to work. It is not supported by the medical evidence. He states:
“I hoped at some stage I could drive a bus.”
“I hoped there was every chance I could return.”
The Claimant has been troubled by very significant medical problems since going back almost two decades. He has not worked other than on his farm, since 2012. Whilst it is not specifically relevant it ought also be noted that the Claimant is 66 years old. He received a total and permanent disability payout of some $30,000. He has received a payout for a medical negligence case, supported by medical material which said he was unlikely to ever return to any work earlier in 2021. He had been discharged and paid out from the NSW Police Service following the development of Post-Traumatic Stress Disorder.
There is no doubt that the amputation has left him very seriously and significantly disabled and this pain and suffering and ongoing problems will plague him for the rest of his life. And there is similarly no doubt that prior to this motor vehicle accident he was suffering significant physical problems which had an adverse impact on his ability to work.
Non-economic loss
The Claimant submitted that non-economic loss ought to be allowed in the sum of $500,000. At the Assessment Conference the Insurer has suggested that a figure of about $350,000 would be an appropriate assessment of the Claimant’s pain, suffering and loss of amenities of lifestyle.
I note the devastating effect the Claimant’s injuries have had on him particularly the amputation of his right leg. These will plague him daily for the rest of his life and accordingly non-economic loss ought to reflect the past and ongoing trauma the Claimant suffers from.
In the circumstances I assess non-economic loss in the sum of $400,000.
Past economic loss
The Claimant submitted that past economic loss ought to be allowed as a buffer, from early 2019 to date, to reflect the loss of opportunity for the Claimant to have returned to work, albeit it on a part time basis, as a bus driver.
As I have outlined above, I do not accept that the medical evidence supports the Claimant’s contention that, had he not been injured in the motor vehicle accident, he would have been in a position to return to work as a bus driver.
The medical material does not support this contention. The Claimant was involved in a medical negligence action in which included allegations that following the knee replacement and significant infections he was suffering from his earning capacity was significantly reduced. I accept this to be the case. I note that the resolution of this claim for some $915,000 inclusive of costs is reflective of a likely component to take into account economic loss notwithstanding the matter resolved about when the Claimant turned 66 years of age.
Future economic loss
In respect to the allegation of future economic loss I note that the Claimant has an obligation to establish that, but for the injuries sustained in the motor vehicle accident, his likely future employment circumstances are different. That is that damages may not be awarded for future economic loss unless the Claimant first satisfies me that the assumptions about future earning capacity or other events on which the award is to be based according to the Claimant’s most likely future circumstances but for the injury. On the material presented and, noting in particular the material addressing the Claimant’s pre-injury work capacity, I am not satisfied that the Claimant’s future capacity, insofar as he was intending or could have returned to work as a bus driver has been made out.
That said the Claimant also had an alternative means of earning an income. He has two properties on which he grazes cattle. This work would involve checking cattle, tending fences, rounding up cattle for drenching, marking and the like and ultimately selling cattle for consumption.
The Claimant states and I accept:
“hopefully I was going to do something to make more money from the farm.”
Whilst his pre-existing knee and hip problems and age may have prevented him from returning to work as a bus driver the operations of the cattle farms could be considered in quite a different light. The Claimant did state:
“what I had in mind is building up these properties from a hobby farm to ones where they are full production.”
He had been breeding cattle since 2012. He suffered a disaster in 2015 when the whole of his herd was lost to floods. By the time of this accident, he had built up his herd to a point shortly where his excess cattle numbers would have been granted an opportunity for sale and good income.
The Claimant submits that there was a prospect that the Claimant could have generated income from this farm business. It was suggested, and I agree, that the damages by way of a cushion in the sum of $25,000 be allowed for this loss and I agree. The Claimant will have grave problems in undertaking even the most elementary of operations around the farms. Opening gates is difficult. Driving around the farms to check on cattle is difficult. Even the most rudimentary fencing work is likely to be beyond the Claimant’s capacity consequent on his amputation. All of these are likely to incur additional costs for the Claimant as he attempts to develop an income stream from what may well have been a lucrative cattle farming operation. In these circumstances I concur with the Claimant’s submission that the future economic loss, by way of a general diminution in his earning capacity consequent on the operation of his farms, be allowed in the sum of $25,000.
Documents Considered
I have considered the documents provided in the Application and the Reply.
Submissions
I have read the written submissions and the oral submissions made at the Assessment Conference.
Assessment of Damages Summary
I assess the claim as follows on the findings set out above:
Non-Economic Loss $400,000
Economic losses
·Future loss of earnings (incl. superannuation) $ 25,000
Total of economic losses and non-economic loss $425,000
Total Damages Assessed $425,000
Costs and Disbursements
I assess the Claimant’s legal costs and disbursements in accordance with Part 8 of the Act and the Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020 (delete any that aren't applicable) in accordance with the attached sheet in the amount of $32,382.15.
Hugh Macken
Member (Motor Accidents Division)
Personal Injury Commission
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