Zjacic v AAI Limited t/as GIO - [2024] NSWPIC 105

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zjacic v AAI Limited t/as GIO [2024] NSWPIC 105
CLAIMANT:	Bosko Zjacic
INSURER:	AAI Limited trading as GIO
MEMBER:	Susan McTegg
DATE OF DECISION:	6 March 2024
CATCHWORDS:	MOTOR ACCIDENTS - Claim for damages; the claimant was a passenger in a motor vehicle which collided with the rear of another vehicle; he sustained injuries to his neck, back and left shoulder; he also sustained post-traumatic stress disorder; parties agreed claimant sustained whole person impairment greater than 10%; claimant only worked in Australia as formwork labourer or formwork carpenter for about three years; claimant ceased work in 2008 or 2009 to care for his elderly unwell mother; claimant asserted when his mother no longer required care he intended to return to work as a formwork carpenter; claim for future economic loss based on likely earnings as formwork carpenter; Held – claimant honest witness; accident caused change in most likely future circumstances; had accident not occurred claimant would have returned to work in construction industry when mother no longer required care; opportunities for return to employment uninjured limited to construction industry having regard to poor English, lack of qualifications and lengthy absence from workforce; now unfit for return to work in construction industry; future economic loss deferred for seven years (life expectancy of mother) and assessed in sum of $317,136.14; non-economic loss assessed in sum of $300,000; total damages assessed in sum of $617,136.14; costs assessed in favour of claimant.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 1. On the issue of liability for the claim, the insurer’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, I specify the amount of damages for this claim as $617,136.14. 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim is $53,584.47 inclusive of GST. 4. Attached to this certificate are reasons for my assessment.

REASONS FOR DECISION

Issued under s 7.36(1) of the Motor Accident Injuries Act 2017

INTRODUCTION

On 17 February 2022 Bosko Zjacic (the claimant) was a front seat passenger looking at his phone when the vehicle in which he was a passenger failed to stop before colliding with the rear of another vehicle (the accident). Mr Zjacic sustained injury.
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.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
In a liability notice issued under s 6.20(1) of the MAI Act dated 1 June 2023 the insurer has admitted liability for the claim.
The claim was listed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 105
Decision Date: 6 March 2024

CaseChat Overview and Summary

In the matter of Zjacic v AAI Limited t/as GIO, the court was tasked with determining the amount of damages to be awarded to the claimant, who had been injured in a motor vehicle accident. The claimant, a passenger in a vehicle that collided with another, sustained injuries to his neck, back, and left shoulder, as well as post-traumatic stress disorder. Both parties agreed that the claimant had a whole person impairment rating greater than 10%. The claimant had worked as a formwork labourer or formwork carpenter for approximately three years before taking a break to care for his unwell mother. Upon her recovery, the claimant intended to return to work as a formwork carpenter.

The primary legal issues before the court were the extent of future economic loss, given the claimant's specific circumstances, and the assessment of non-economic loss. The court considered the claimant's limited work history, poor English proficiency, lack of formal qualifications, and the lengthy period away from the workforce. It was also necessary to determine how the accident had altered the claimant's most likely future circumstances and whether the claimant would have returned to work in the construction industry if not for the accident.

The court found the claimant to be an honest witness and concluded that the accident had indeed altered his future prospects. It was determined that, had the accident not occurred, the claimant would have returned to work in the construction industry upon his mother's recovery. Given his poor English, lack of formal qualifications, and long absence from the workforce, the claimant's opportunities for returning to employment were limited to roles within the construction industry. However, due to his injuries, he was now unfit to return to work in that industry. The court deferred the future economic loss for seven years, the estimated life expectancy of the claimant's mother, and assessed it at $317,136.14. Non-economic loss was assessed at $300,000, bringing the total damages to $617,136.14. The court also awarded costs in favour of the claimant.

Orders