Wiegold v Allianz Australia Insurance Limited
[2021] NSWPIC 512
•8 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Wiegold v Allianz Australia Insurance Limited [2021] NSWPIC 512 |
| CLAIMANT: | Stanley Wiegold |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 8 December 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages claim; claimant witnessed death of colleague run down by bus driven by fellow trainee bus driver; claimant developed PTSD and alcohol misuse disorder; claim made under pure mental harm provisions of Civil Liability Act 2002; no issue as to liability and damages for non-economic loss and past and future economic losses; issues about retirement age; pre-accident weekly earnings; whether residual earning capacity was capable of being exercised; Held - non-economic loss assessed at $250,000, calculated sum for past loss of earnings and future; no real issue of principle. |
| DETERMINATIONS MADE: | In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The amount of damages for the claim is $683,435. 2. The amount of the claimant’s costs in the matter is $50, 692.18 inclusive of GST. A statement setting out the Commission’s reasons for the assessment are included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
At the age of 59, after almost 45 years of continuous employment in labouring, landscaping and truck driving, Stanley Wiegold decided to obtain work as a bus driver.
On 28 May 2018, Mr Wiegold commenced employment with Transit (NSW) Services Pty Limited as a trainee bus driver. He spent the first four days in a classroom covering theory, procedures and safety aspects of the job.
On 7 June 2018, after a further week of training, which included driving a bus on the streets, the trainees were taken for more practical training, driving a bus around a car park in Smithfield.
Mr Wiegold completed his circuit of the car park and moved to the sidelines to allow another trainee, Firat Los to take the wheel of the bus. The trainer, Nicolae Velicicu remained outside the bus observing and supervising. During the course of his circuit, Mr Los lost control of the bus, which mounted a gutter, slammed into a fence and hit an embankment (and/or a tree). Mr Velicicu, who had been standing in front of the bus was killed in the collision.
Mr Wiegold saw all of this, ran to provide first aid but was confronted by the sight of his trainer who was clearly dead and ‘unrecognisable’[1] due to his head injuries. Mr Wiegold has developed mental health issues as a result. He made a claim against his employer and has been paid workers compensation benefits.
[1] The claimant’s statement to the workers compensation investigator dated 2 August 2018 paragraph 30 page 513 of the claimant’s bundle.
On or about 20 April 2020, Mr Wiegold made a claim for damages against Allianz (Australia) Insurance Limited, the third-party insurer of the bus involved in the collision. Allianz has admitted liability for the claim[2].
[2] The claim form is document A3 in the claimant’s bundle.
Allianz and the claimant have been unable to settle on an amount of damages to be paid and so, on 8 January 2021, the claimant referred his claim to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA) for assessment.
The Personal Injury Commission (PIC) commenced operation on 1 March 2021. Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides:
(a) DRS is abolished;[3]
(b) the DRS matter in this claim is pending proceedings before the PIC;[4]
(c) I am a Member of the Motor Accidents Division of the PIC and I am empowered to assess the claim,[5] and
(d) the Motor Accident Injuries Act2017 (the MAI Act), the Motor Accident Injuries. Regulation and the Motor Accident Guidelines continue to apply.[6]
[3] Clause 3.
[4] Clause 14B(1).
[5] Clause 14B(3).
[6] Clause 14B(4)(c).
I have held two teleconferences in the matter and an assessment conference hearing occurred by video link on 2 December 2021.
MATTERS IN ISSUE
There was no significant challenge to the claimant’s credit at the assessment conference and the medical evidence from both parties is similar. The claimant has a chronic post-traumatic stress disorder (PTSD) as well as an alcohol misuse disorder.
The claim for damages is made in accordance with the Mental Harm provisions of Division 7, Part 3 of the Civil Liability Act 2002 (the CL Act) and the damages to be awarded are regulated by Part 4 of the MAI Act.
The insurer does not dispute that Mr Wiegold witnessed the fatal accident, and sustained a recognisable psychiatric injury as required by sections 30 and 31 CL Act.
The insurer has conceded Mr Wiegold’s entitlement to non-economic loss and entitlement to the other heads of damage claimed namely past and future loss of earnings and earning capacity in accordance with section 4.5(1)(a) of the MAI Act and damages under section 4.5(1)(d).
The only significant issue in dispute between the parties is the extent of the claimant’s residual earning capacity and whether he is ever likely to exercise it.
Review of the evidence
Because of the similarity in the evidence and the minimal number of issues, I do not propose to provide significant details of all of the evidence relied on by the parties.
Treating medical evidence
The claimant’s problems commenced very soon after the accident. On 22 June 2018, the claimant’s general practitioner, Dr Lingamaneni diagnosed PTSD and certified the claimant unfit for work from 15 June to 19 June and then partially fit from 20 June to 6 July 2018. In July 2018 the claimant was certified entirely unfit[7]. He has been certified as fit or unfit for a variety of hours and with restrictions since then. He remains in receipt of workers compensation benefits.
[7] The certificates of capacity are included as document A7 commencing at page 358 of the claimant’s bundle and are in no particular order. The 16 July 2018 certificate is found at page 404, and the 22 June 2018 certificate at page 410.
The claimant consulted psychologist Rose Cantelli on 22 June 2018[8] and psychiatrist Dr Anita George on 27 August 2018. I have no details of how many times the claimant has attended upon Ms Cantelli, but he has consulted Dr George 27 times.
[8] Her notes containing 180 pages are document A12 in the claimant’s bundle.
Dr George has provided her records which include reports[9] to the claimant’s solicitor. In her report of 11 September 2020[10] she said that Mr Wiegold’s condition was ‘currently fair, but with residual ongoing injury to work capacity’. She notes his ‘slow improvement and recovery rate’ which she related to what she considered reduced support from the claimant’s employer. She says this has resulted in longer treatment needs and continuing support. While she expressed some concern about the impacts of COVID on job seeking she thought he might show further improvement, but she said ‘I have doubts about Stanley’s long-term ability to return to full, pre-injury work capacity’.
[9] The records are document A4 in the claimant’s bundle.
[10] Document A13 in the claimant’s bundle.
In her most recent report of 11 October 2021[11], she indicated that she expected she would be treating the claimant throughout 2022:
‘As per my last correspondence … and with the passage of time, I maintain my opinion that Stan is not likely, at all, to return to a full pre-injury capacity of full-time work. Furthermore, his part time work capacity will have restrictions – in terms of him not been suited to truck driving or bus driving. Regarding labouring work, this may be a possibility depending on Stan’s personal interest /choice’.
[11] Document A14 in the claimant’s bundle.
Dr George diagnosed PTSD, Anxiety and Depressive Disorder and alcohol misuse disorder.
Medico-legal evidence
The claimant relies on three reports from Dr Ben Teoh[12]. He diagnosed Chronic PTSD and considered there was a poor prognosis. He considered the claimant’s cognition was intact. He found 17% whole person impairment in his first two reports and 19% in his third. In his most recent report, he considered the claimant not fit for full time work and not fit for any job involving driving.
[12] The reports are dated 23 March 2020, 19 October 2020 and 10 October 2021 and are documents A9, A11 and A8 respectively in the claimant’s bundle.
The insurer relies on a report from Dr Peter Whetton[13] who noted the claimant complained of how he was treated by his employer and blames the employer for the accident. Dr Whetton took a history that the claimant was drinking 11 to 12 standard alcoholic drinks a day, had liver problems and was suffering from an alcohol misuse disorder and he needed specific treatment for this including hospital detoxification.
[13] The report is dated10 August 2021 and is document R17 in the insurer’s bundle.
Dr Whetton expressed the view that the claimant needed continued psychological and psychiatrist treatment and that his condition is chronic saying, ‘it is unlikely that he would be able to resume what he describes as his previous normal life’.
Dr Whetton considered the claimant could not and probably should not (due to his consumption of alcohol) be employed doing driving work. He thought labouring work could be considered.
Dr Whetton was shown the claimant’s wrists which he said revealed evidence of self-harm. The claimant said he was bored, he had lost friends, and had stopped socialising. He has tried to find work but says no one is interested in him.
There is no whole person impairment assessment from Dr Whetton. Dr Whetton considered the Workcover investigations and ongoing interviews associated with the claim were disturbing the claimant.
Workers compensation material
Medical material
The insurer relies on a report dated 25 June 2020 from Dr Satish Dayalan addressed to the workers compensation insurer, EML[14].
[14] Document R18 in the insurer’s bundle.
Dr Dayalan recorded that the claimant was socially withdrawn with a fluctuating mood. The claimant reported impaired concentration, suicidal thoughts, a need for prompting for self-care. Dr Dayalan thought the claimant required further treatment including an alcohol rehabilitation program. He assessed the claimant as having a 7% whole person impairment.
Approved Medical Specialist (AMS), Michel Hong undertook an assessment of the degree of the claimant’s whole person impairment for the Workers Compensation Commission. He assessed the claimant as having a 15% impairment and noted he was ‘psychologically fragile’. He suggested the claimant had alcohol induced gout, persistent anxiety, irritability, depression, poor concentration, suicidal thoughts (he too noted the evidence of self-harm on the claimant’s wrists). The claimant also reported panic attacks and said he avoids social situations.
Dr Hong noted the claimant’s history of attempts to return to work. He expressed the view that while the claimant can drive, ‘he could not manage work with the same employer or driving work at the same stress level’. He thought the claimant could work for 12 hours a week but would struggle with 20 hours per week.
Rehabilitation material
EML retained the services of a rehabilitation provider, Recovre and their reports have been included in the insurer’s bundle of documents.[15] These documents include:
(a) The first report dated 16 August 2018[16] notes the goal was a return to work with a new employer. The claimant was identified as ‘high risk’ requiring significant assistance and noting multiple barriers to a return to work. The claimant had returned to work to ‘keep busy’ and take his mind off things but does not appear to have worked since 16 July 2018. He was teary. His return to previous duties at Transit was considered not suitable.
(b) A vocational assessment done on 22 November 2018[17] identified jobs suitable for the claimant including as a grounds person, truck driver and courier driver. The claimant’s job-seeking skills were limited, and he had no resume. There is a history of the increase in alcohol consumption and that the claimant was in the ‘extremely severe’ range for depression anxiety and stress. In a labour market analysis a job at Bonnie Doon Golf Club was identified as were other landscaping type jobs. While some of these indicated formal qualifications may have been required, it was considered that the claimant’s 18 years’ experience would suffice.
(c) The second report dated 9 April 2019[18] notes the claimant had been certified for 12 hours of work per week on 30 October 2018 increasing to 24 hours on 29 March 2019 following a case conference with the claimant’s general practitioner (GP) at the time, Dr Vij. The claimant had been given job seeking training which he found stressful. He reported a friend offered him a 24 hours a week contract job for garden and lawn maintenance. He was awaiting formal documentation of this and ongoing receipts for work paid.
(d) In a report dated 19 June 2020[19], the Recovre consultant noted that ‘several [potential] employers have indicated Mr Wiegold would be more competitive for truck driving roles if he had his LF forklift licence’. The consultant supported the claimant undertaking this training saying it would open up other options including employment as a store person.
(e) In a labour market analysis dated 28 August 2020[20] several jobs for ‘store person’ were identified which needed a Forklift license and it was noted that the claimant had previous experience driving a forklift but had no license. A job at Mona Vale golf course as a groundsman was also identified.
(f) Finally, Recovre reported to the insurer supporting retraining (responsible service of alcohol and gaming) to enable the claimant to take up an offer of employment with Panania Diggers Club[21].
[15] R8 – R12, R14 over pages 263-310 and pages 317-318.
[16] R8 in the insurer’s bundle.
[17] R10 in the insurer’s bundle.
[18] R9 in the insurer’s bundle.
[19] R11 in the insurer’s bundle.
[20] R12 in the insurer’s bundle.
[21] 10 February 2021 R14 in the insurer’s bundle.
Lay evidence
The claimant’s wife, Julie Wiegold gave a statement supportive of her husband, but she says he does nothing - no cooking, no outdoor activities and no driving at all. This is not corroborated by the histories give to the various doctors which suggest the claimant does cook (not every night), mows the lawn (but not for long), sees his grandchildren regularly (but is irritated by them), goes to the RSL once a week and has even tried to paint the house.
At the assessment conference, Ms Wiegold said that her husband was totally different since the accident. She said he is agitated all the time and not a fun or outgoing person anymore. She says if they go to the club they will often have to go home after a while because of the noise and the number of people. She said her husband is very nervous and emotionally withdrawn. She said drink seems to settle him in that he is not rolling drunk or aggressive, but that alcohol makes him calmer. She said he drinks every day.
She said her husband had always been employed and for a while when they operated a gym together, he was working two jobs (as did she). She said that he has tried to get jobs and it worries her what he is going to do.
Ms Wiegold says she drives her husband everywhere that he is jumpy and a bad passenger. She has witnessed him jumping away from a passing bus as they walked along the footpath.
Ms Wiegold said that her current work is located less than 10 minutes from her home and she is working three days a week. When asked about their retirement plans, she said they had no real plans for retirement before the accident but that with seven grandchildren she was hoping to spend more time with them. At the moment she said, ‘retirement is far from my mind’.
The claimant’s evidence
The claimant’s first statement[22] contains a detailed description of the accident. In the light of the admission of liability, it is unnecessary to provide details from that statement. His second statement dated 7 September 2020 (A3) also contains details of the events leading up to and surrounding the accident. The claimant expresses concerns at the employer’s behaviour, the competency of his fellow trainee and the state of the bus they were driving. It is quite clear the circumstances of, and immediately after the accident, were quite shocking.
[22] Document A2 in the claimant’s bundle. This statement appears to have been given during the course of the investigation into this workplace fatality.
The claimant’s second statement documents Mr Wiegold’s previous employment history. He left school at the age of 15, worked as a labourer, in landscaping and as a truckdriver. He also recounts his ongoing problems including panic attacks and nightmares, changes in personality and alcohol use. He says he showers only every three days.
In his final statement dated 5 October 2021[23] he says he is now 62 years of age and that he was a ‘witness to a horrible fatal accident’. He says he had no psychiatric problems before but that since the accident he suffers from nightmares, panic attacks and flashbacks.
[23] Document A10 in the claimant’s bundle.
He confirms his treatment including the counselling with Ms Cantelli which has occurred over the phone during Covid. He said he prefers seeing her in person and has not consulted her for nine weeks. Mr Wiegold also said he sees Dr George every four to six weeks and that she helps with his drinking problem and medications, but he likes to see her in person and has not seen her regularly. He sees his GP every month also for medication.
He says he feels anxious and hopeless. He wanted to work to age 70. He knows he has been certified fit for some work but has tried to find work and there is nothing there for him and employers are not interested in him when he tells them of his condition.
He says since the accident he has done very little.
In his evidence at the assessment conference, he said:
(a) he left school after year 10 and that since then he has had no periods of unemployment in fact, he had worked two jobs on occasions;
(b) he returned to the bus driving job for one or two weeks but left because he could not face it;
(c) he tried truck driving but left that job because of anxiety and stress. He said he earned $625 in that job;
(d) his next job was with a funeral home as a casual limousine driver transporting family members from funerals to the wake. He said he did five shifts of four hours each for three weeks but after being exposed to a body in an open casket, he could not continue. He said he earned $800 in that job, and
(e) his next job was as a minibus driver for a school, but that job ended due to COVID. He earned $472 in that job.
I asked him about a history he had given that he had worked as a landscaper in April 2019 for a mate and he did not remember it. I also asked him about the responsible service of alcohol and gaming certificates it was suggested he obtain in order to work at the Panania Club but he said he had not obtained the certificates and did not think working there was a good idea in the light of his problem with alcohol.
The claimant’s evidence continued, and he said:
(a) he had applied for 30 or 40 jobs but that there were not many jobs for just a few hours a day and that people are put off by his PTSD when he discloses it. He said he has lost confidence and does not think he will ever get back to work due to being rejected all the time;
(b) he drinks every day, three to four beers and a bottle of wine, and
(c) he had no experience with computers, that they have one at home but his wife uses it. He says he does not have a smart phone and has no clerical or office experience. He said after school he has obtained no formal qualifications including TAFE.
The claimant was cross examined about the history given to Dr Vij and Recovre about working with a ‘mate’ mowing lawns or gardening. The claimant said he did not remember telling his doctor that and does not recall ever working with a mate. He thought he may have been offered a job by a friend but he does not recall actually working for one.
He was taken to the many certificates of capacity and confirmed what was in them. He said that he applied to Liverpool and Burwood Councils for jobs as a truck driver and labourer but did not get them.
He talked about his mini-bus driving job for the school and said it was for two hours in the morning and two hours after school driving kids to and from school and sporting fixtures. He was hoping this would convert to a full-time job and thought Dr Dayalan had got it wrong when he reported he was working in that job 15 hours a week. He said he enjoyed the work and agreed he was hoping for his hours to be increased but that COVID stopped school sport and hence the school bus driving.
Mr Wiegold was challenged by Mr Guihot about whether he had a forklift license. He said he had never had one, but it had been suggested that he obtain one and train to be a forklift driver.
He agreed that his doctor had approved him working as a store person or groundsman. He agreed if a job came up and was offered to him, he would take it.
Mr Guihot asked him about the cellarman job at the Panania Diggers Club. The claimant said there was no actual job he had just attended the club one day and they showed him how to tap a keg and clean the lines. He had hoped to get a job if there was one but he would need certification to do it. He said at Panania the person who does the tapping of the keg and cleaning the lines works about four hours a month.
In re-examination the claimant said he did not drive a car other than about two kilometres to the local shop.
Mr Wiegold said that but for the accident, he would have worked to age 70 or 75 depending on his health and his wife’s work.
MY FINDINGS
What are the accident-related conditions?
There is no dispute that the claimant has developed PTSD as a result of witnessing the death of a work colleague and that his PTSD is chronic.
In terms of the medical evidence, and its particular relevance to the claimant’s issues about earning capacity, I prefer the evidence from the claimant’s treating psychiatrist. She has treated him since soon after the accident and has counselled him in the three years since while he has been in work and out of work. In my view she would have a greater understanding of the claimant and his abilities and restrictions than any of the medico-legal experts engaged to give evidence in this matter.
Both Dr Whetton (for the CTP insurer) and Dr Dayalan (for the workers compensation insurer) have identified the claimant’s alcohol misuse disorder and recommended treatment. I have been given no evidence that either of those two insurers have offered this treatment to the claimant or that he has undertaken any form of alcohol specific counselling.
Are there any relevant pre-accident conditions?
The claimant is reported by Dr Whetton as having consumed ‘a beer after work’ before the accident. Dr Dayalan has a history of four beers a day since the age of 30. The Recovre consultant took a history from the clamant that before the accident he was drinking four to five beers a night but that since the accident he was drinking a bottle of wine or two as well[24]. There is no dispute that the claimant’s alcohol intake has increased significantly since the accident. There is no evidence dealing with the claimant’s pre-accident alcohol intake and any affect on the claimant’s functioning, but I note that the claimant’s uncontested evidence is that he worked without issue before the accident since leaving school.
[24] Page 281 of the insurer’s bundle.
While the insurer’s written submissions referred to the claimant’s two previous accidents (in 1980 and 2010), Mr Guihot did not cross-examine the claimant in respect of any previous injuries, accidents or conditions. There is no medical evidence produced by either party to suggest these two accidents produced any injuries that were causing any issues at the time of the accident or were likely to cause any issues in the future.
The claimant gave evidence that he had never had a previous psychiatric condition before the accident.
I note the claimant’s notes from MedClinic Panania have been produced[25]. The insurer made no submissions at the assessment about any issue of causation in terms of the development of the claimant’s psychiatric injury or causation in terms of any other condition impacting upon the claimant’s ability to earn.
[25] Document A6 in the claimant’s bundle.
I am therefore satisfied that the accident of 7 June 2018 is the sole cause of the claimant’s psychiatric injuries as diagnosed by Dr George.
Does the claimant have an impairment to his earning capacity?
Dr George was of the view that, because of his mental state, the claimant would not return to full time work. There does not seem to be any dispute about that.
Dr George does not rule out part time work but noted he would have restrictions in that he could not drive trucks or buses. This seems to be the opinion of the other doctors and the Workers Compensation Commission’s AMS, Dr Hong.
Dr George and the claimant’s GP have approved Mr Wiegold for various jobs during the course of the time since the accident including jobs working as a store person or grounds person.
I am satisfied that the claimant does have an ongoing impairment to his earning capacity, but that impairment is not total. I am of the view he does have some residual earning capacity.
I am satisfied that the impairment has been and will be productive of financial loss in that the claimant has been unable to return to the work as a trainee bus driver and has attempted other returns to work and that some of his jobs have ended due to his accident related mental state.
What were the claimant’s pre-accident weekly earnings?
The claimant’s counsel argued I should base the past loss of earnings award on the sum of $1,000 a week on the basis that the claimant could have earned $1,200 gross per week.
The insurer suggests the claimant’s net weekly earning upon which I should base my award is the sum of $837 per week. This was based on a gross weekly figure of $1,024.25 and Mr Guihot’s uncontested assessment of the likely taxation to be applied to that figure.
There was no agreement by the parties about the claimant’s pre-accident weekly pay rate. I was given no payment summaries and no taxation returns or tax assessments for the claimant before or since the accident. I have been provided with no comparable earnings for qualified bus drivers (as opposed to trainee bus drivers) or documents from Transit Services as to what the claimant was paid or was likely to be paid if he graduated as a bus driver. I have been given no payslips from the claimant, no job advertisement with any advertised salary, no job offer documents or similar.
The EML initial liability notice identified a Pre-Injury Average Weekly Earnings (PIAWE) ‘interim rate’ of $1,024.45 which was apparently without the insurer having all the information. Other records suggest that the claimant’s final PIAWE determination was the sum of $1,070.[26]
[26] The initial liability notice was dated 11 July 2018 and refers to the ‘interim’ amount. The letter to the claimant dated 29 January 2021 from EML reducing his workers compensation payments refers to the higher amount. Both documents are contained within R13.
Noting the relationship between the employer and its workers compensation insurer, the best evidence I have as to the claimant’s pre-accident wage and therefore the value of his pre-accident earning capacity is the workers compensation insurer’s determination of the claimant’s PIAWE. I therefore find that the claimant’s pre-accident earning capacity would have enabled him to earn up to $1,070 gross per week.
ASSESSMENT OF DAMAGES
Non-economic loss
The current maximum amount for non-economic loss damages is $595,000. That operates as a cap on damages and there is no proportionality[27]. The claimant submitted he should be awarded the sum of $325,000, the insurer submitted $220,000.
[27] Hodgson v Crane (2002) 55 NSWLR 199 – as per Heydon JA at [39].
Non-economic loss is defined in the MAI Act[28] as:
(a) pain and suffering, and
(b) loss of amenities of life, and
(c) loss of expectation of life, and
(d) disfigurement.
[28] Section 1.4.
Disfigurement is not relevant to Mr Wiegold’s case although there is evidence of self-harm and scarring which I have not seen but which has been commented upon by the doctors. There is no evidence of any shortening of Mr Wiegold’s life although I note he is drinking a bottle or two of wine a night which I believe I can assume would not be good for his general health. While there is no physical pain and suffering from any bodily injury, the claimant does suffer from mental anguish, anxiety and depression. There is evidence of a significant loss of the amenities and enjoyment of life.
More than three years has passed since the claimant witnessed a ‘horrible fatal accident’ and he has since then experienced nightmares and flashbacks. He takes medication and has required extensive counselling and therapy with limited success.
His wife says he is ‘totally different’ and while there is evidence that he does some things around the house, within his family and in the community, he is not participating in life as he used to. He is somewhat dependent on his wife to remind him to do things and to undertake those domestic duties which he used to do. I note the prognosis of Dr Hong that he will never get back to his pre-accident life.
The claimant’s condition is chronic, no one offers a cheery prognosis. He is 62 and has, on the medium life tables, 23 years of life to live with the after-effects of the accident.
I will award the claimant $250,000 for his non-economic loss.
Past economic loss
What was the claimant’s net weekly earnings?
I have found above that the claimant had a pre-accident earning capacity of $1,070 per week net.
The insurer has given me no documentary evidence to confirm what the net weekly earnings would have been at $1,070 gross per week, and I was not provided with any written submissions explaining how the figure of $837 was arrived at. The claimant has not contested the mathematics of the assessment of the tax payable on $1,070.
I therefore accept the claimant’s net weekly earnings at the time of the accident were $837 per week.
What is the calculation of past economic loss?
The insurer says it is 182 weeks since the claimant’s accident and this was not disputed by the claimant.
The insurer conceded, for the purposes of simplicity only that the claimant’s past economic loss should be calculated on the basis of a total lack of capacity for those 182 weeks and at $837 per week the insurer says I should award $152,334 less what the claimant earned since the accident which would include, two to three weeks whilst on light duties before being placed on workers compensation benefits and the sums he has earned since leaving Transit Systems (the sum of $1,875).
The claimant says his salary would have increased from his pre-accident training level and argues I should allow the sum of $1,000 a week for 182 weeks on the basis of a total loss of earning capacity or $667 per week on the basis of some residual earning capacity not exceeding 12 hours a week. That produces a figure of $121,394.
The EML list of payments[29] suggests workers compensation payments were made commencing the date of the accident. It is therefore not clear to me that the claimant was paid a wage by his employer in the few weeks immediately after the accident when he was allegedly still working. The certificates of capacity suggest the claimant was unfit for work from the week after the accident. This suggests the only pay the claimant received since the accident were the various amounts totalling $1,875, plus one week of wages ($837 net).
[29] Page 528 of the claimant’s bundle.
I will award past economic loss based on the insurer’s calculation but rounded to take into account what he may have earned since then and will allow the sum of $150,000.
Future loss of earning capacity
I have accepted that the claimant has an impairment to his earning capacity and that this impairment will be productive of financial loss. In assessing his financial loss, I have to consider section 4.7 of the MAI Act and determine the claimant’s most likely future circumstances but for the accident.
In my view the most likely future circumstances but for this accident is that the claimant would have continued his training and obtained work as a bus driver or worked in some other job involving transport or landscaping on a full-time basis earning in the vicinity of $1,000 per week net.
When would the claimant have retired?
The insurer submitted that there is no likelihood that the claimant would have worked to age 75 and that it is more likely he would have retired at the usual age of 67. The insurer argued that both the claimant and his wife’s evidence was that they had not really thought about retirement and with grandchildren around it was speculative that he would work to age 70.
In my view the most likely future circumstance but for this accident is that the claimant would have retired at or before age 70. Damages beyond that are, in my view and on the basis of the evidence of the claimant and his wife, speculative.
Does the claimant have a residual earning capacity?
The insurer argued that in the three years since the accident the claimant has been certified as fit for work for a variety or hours from 12 to 40 and that on a ‘fair reading’ of the medical reports there is the prospect of improvement and that the claimant may have a residual earning capacity of up to 20 hours. Mr Guihot also argued that the claimant had been approved to work as a grounds person or store person and that there is evidence that these jobs are available and pay as much on a full-time basis as bus driving.
The claimant’s counsel argued that the claimant was not fit for full time work or work driving, his return to work had been tested over three years and 30 jobs and that any residual earning capacity he had was theoretical and unlikely to be exercised.
I note Dr George suggests part time work is possible and that AMS Dr Hong thought he could work 12 hours a week but would struggle with 20. Dr Dayalan thought Mr Wiegold could work 12 hours a week and possibly more if his condition did not deteriorate.
I accept that Mr Wiegold does have a residual earning capacity of 12 hours a week. I accept the evidence of Dr George and AMS, Dr Hong that it would be unlikely the claimant could work up to 20 hours per week.
Will Mr Wiegold exercise that residual earning capacity?
The claimant has no formal qualifications and has only ever worked in driving jobs or labouring jobs. He is now 62 and his age is, in my view also likely to impede his ability to find and keep work.
I accept the claimant’s evidence that he has applied for over 30 jobs with limited success and that the work he has done since his accident driving trucks, mini-buses and cars is no longer suitable for him.
Finally, it is worth noting that the workers compensation insurer and its advisors have been actively engaged with the claimant in his rehabilitation and have been unable to place the claimant in longstanding suitable employment since the accident.
In my view it will be difficult for Mr Wiegold to find work although not impossible. I do not accept that his residual earning capacity is theoretical, but I do not believe he will obtain work for 12 hours a day immediately upon the conclusion of this case or that he will remain in employment every day for the next eight years to age 70. I therefore propose awarding damages by way of a calculation but adjusting it upwards to reflect the additional difficulties the claimant is likely to face.
What is the calculation of the future loss of earning capacity?
The insurer suggests the multiplier to age 67 is 231.5 which when multiplied by $300 per week and using the usual vicissitudes of 15% produces a figure of $59,032.
The claimant’s written submission put two alternatives:
(a) total loss of capacity to age 75 (multiplier 502.3) at $1,000 per week less 15% for vicissitudes = $426,955
(b) 12 hours of residual earning capacity to age 75 (multiplier 502.3) at $667 per week less 15% for vicissitudes = $285,000
I have found that but for the accident the claimant would have continued to work to age 70 as a bus driver or similar. I accept that he would have earned in the order of $1,000 per week net (as his wage would not have remained completely static since the accident). In addition, while there is no direct evidence as to what a graduate or experienced bus driver might earn, I consider it reasonable to assume his graduate wage may have been more and he may have had access to overtime, weekend work and so on which would have further increased his potential earnings.
On that basis the calculation for future loss of earning capacity for eight years would be $667 per week to age 70 (multiplier 345.6) less 15% for vicissitudes which gives a figure of almost $196,000. I propose rounding that up to the sum of $225,000 on the basis that the claimant is unlikely to obtain employment immediately upon the conclusion of his case but when he does, he may find it difficult to keep employment or find alternate employment from time to time.
Other damages
The parties agreed that lost superannuation contributions were to be allowed at the usual rate of 11% which produces the following additional amounts:
(a) Past superannuation benefits – 11% of $150,000 = $16,500.
(b) Future superannuation – 11% of $225,000 = $24,750.
The parties also agreed that damages should be awarded under section 4.5(1)(d) of the MAI Act for the income tax paid on workers compensation benefits which are to be repaid. The amount agreed is $17,185.
ASSESSMENT OF DAMAGES SUMMARY
The claimant’s damages are assessed, in accordance with the findings above, as follows:
Non-economic loss $250,000
Past loss of earning $150,000
Past superannuation $16,500
Future loss of earning capacity $225,000
Future superannuation $24,750
Section 4.5(1)(d $17,185
Total $683,435
COSTS AND DISBURSEMENTS
The claimant lodged submissions with respect to costs on 2 December 2021 and the issue of costs was discussed at the assessment conference and general agreement reached. Neither party requested draft reasons.
At the conclusion of the conference, I queried with Mr Reynolds that the claimant’s solicitor only sought one fee for a report from Dr Teoh in circumstances where the claimant relied on three reports. I have had no clarification from the claimant. Were there three reports, I would likely allow the regulated costs for all three.
I assess the claimant’s legal costs and disbursements in accordance with the provisions of the MAI Act and the Motor Accident Injuries Regulation 2017 as set out in the attached sheet and my reasons for any disputed claims are as follows:
(a) the claimant is entitled to professional costs for stages 1, 2, 3 and 4;
(b) there was no medical assessment required therefore no costs will be allowed for that item claimed;
(c) the fee for the assessment conference is allowed noting the hearing concluded in under two hours;
(d) a claim is made for four conferences directly related to the assessment of the claim. In my view noting the sensitive issues in this case, there being two witnesses that four hours of conference time is reasonable, and
(e) Dr Teoh’s claimed fee is allowed in the regulated sum.
Belinda Cassidy
Member (Motor Accidents Division)
Personal Injury Commission
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