Zjacic v AAI Limited t/as GIO

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 for assessment on 1 March 2024.
Mr Curran for the claimant confirmed the claim for past economic loss was abandoned.
I am asked to assess damages in respect of the following:
(a) non-economic loss, and
(b) future economic loss.

THE EVIDENCE

The claimant is 47 years of age and was 45 years of age at the date of accident.

Statement of the claimant dated 16 May 2023[1]

[1] Claimant’s bundle p 417.

Mr Zjacic provided an initial statement dated 16 May 2023.
Mr Zjacic was born and attended school in Croatia. After finishing school at 18 years of age he worked on the family farm. Because he was of Serbian descent but living in Croatia he was forced to move to Serbia when the war broke out. He undertook physical work in markets for about eight years before arriving in Australia in 2004 as a refugee.
On arriving in Australia, the claimant attended English language classes before starting work as a formwork carpenter in mid-2005. The claimant stated he worked as a formwork carpenter until about August or September 2009.
Mr Zjacic stated he worked as a formwork carpenter for Y&M Construction Pty Ltd from 2005 to 28 January 2007, for Dunmore Formwork Pty Ltd from 29 January 2007 to April 2008, for Milan Jankovic from May 2008 to August 2008, for Nova Homes from October 2008 to
May 2009, and for Mivac Carpentry for a short period thereafter, possibly about three or four months.
Mr Zjacic said his mother is 85 years of age and is in fragile health. He has been looking after her since 2009. She cannot walk any distance and requires a walking stick. She needs care and someone to administer her medicines.
Mr Zjacic stated he had never had a motor vehicle accident before or since this accident or sustained injury in any other accident.
Mr Zjacic stated he has experienced nightmares, flashbacks of the accident, severe anxiety and depression. He also has pain and restriction of movement of his left shoulder, neck, upper and lower back. The pain radiates into both arms and both legs. He cannot bend, lift or squat as before. He suffers from a loss of agility and gets pain when walking up and down stairs or on uneven ground or when sitting or standing for any length of time.[2]
[2] Claimant’s bundle p 364.

Supplementary statement of the claimant dated 20 June 2023[3]

[3] Claimant’s bundle p 349.

Mr Zjacic provided a supplementary statement dated 20 June 2023.
Mr Zjacic stated the car in which he was a passenger sustained a lot of damage; he was informed the quote to repair the vehicle was approximately $14,000.
Referring to his earlier statement where he stated he had not been involved in any prior accidents the claimant conceded he had been involved in a motor vehicle accident six or seven years ago but alleged he sustained no injuries and sought no treatment.
Mr Zjacic asserted about 10 months earlier he started to get symptoms in his stomach consistent with a hernia which he believed was caused by the accident.
Mr Zjacic stated since the accident he was offered a job by Unique Style Homes as a full time formwork carpenter in October 2021 but because of the accident was unable to take up that offer. The rate of pay was $46 per hour.
Before the accident Mr Zjacic was looking after his mother but was in good physical and mental health and would have gone back to work as a formwork carpenter if his mother no longer needed care.
He states his long term relationship ended nine months after the accident due to his mental state caused by the accident. Before the accident he enjoyed playing social soccer and basketball. He also enjoyed fishing. Before the accident he was a happy person who enjoyed life. He had lots of friends and attended social events, dinners, and dancing. He enjoyed traditional Serbian dancing. He no longer enjoys those activities.
Since the accident Mr Zjacic stated his life has been in turmoil. The claimant asserts he suffers from loss of self-esteem. He also stated he cannot sit or stand for any length of time.

Oral evidence of the claimant

Mr Zjacic adopted his earlier statements and confirmed his physical and psychological condition remained unchanged. He continues to consult his general practitioner (GP) two to four times a month. He also consults his psychiatrist Dr Kuljic once a month. He takes medication prescribed by both Dr Vukoje and Dr Kuljic.
Mr Zjacic confirmed he had not sought employment since the accident and did not think he was capable of any work.
During questioning by Ms Allan Mr Zjacic confirmed he received benefits from Centrelink after arriving in Australia at 27 years of age in August 2004. He commenced work as a formwork labourer in the construction industry in either mid 2005 or 2006 but he quickly learnt on the job before progressing to work as a formwork carpenter.
Ms Allan questioned the claimant about Notices of Assessment for the financial years ended 2006, 2007 and 2008. He agreed that in the year 1 July 2025 to 30 June 2026 his total income was in the vicinity of $22,000 or about $423 per week. He said he was still learning at that time and may not have been working all the time or not always working full time. He thought he was paid about $36 per hour before profit.
In the year 1 July 2006 to 30 June 2007 the total declared income was in the vicinity of $31,000 or about $480 per week and in the year 1 July 2006 to 30 June 2007 the total declared income was in the vicinity of $40,000 or about $633 per week. Mr Zjacic was adamant he had never claimed Centrelink benefits whilst working but conceded he may not have worked a full financial year or may have worked less than full time hours.
Where the last taxation record provided by the claimant was his 2008 Notice of Assessment Mr Zjacic initially agreed he did not work after 30 June 2008 although he subsequently suggested he may have ceased work in 2009.
When he ceased work to care for his mother the claimant’s father was still alive but was in poor health and died in 2011. Mr Zjacic was not familiar with his mother’s diagnosis but stated when he ceased work she needed someone to care for her, to cook her meals, do the washing up, wash the clothes, buy groceries and clothes, and facilitate her medication. He stated he also took her to her medical appointments, took her for a walk or to a café.
Mr Zjacic has received a carer’s payment from Centrelink and has continued to receive that payment since the accident even though he no longer provides that level of care. Mr Zjacic stated he continues to live with his mother but assistance is now provided by her two other sons and her daughter in law.
Mr Zjacic was also questioned about headaches he experienced pre-accident. He agreed he was referred to Dr Carmody in relation to experiencing headaches most days, and agreed he probably underwent an MRI of the head in relation to those headaches.

Application for personal injury benefits

In the Application dated 18 March 2022 Mr Zjacic described his injuries as follows:
“I have sustained injuries to my neck, back, left shoulder, radiating pain from the neck into my left arm, and radiating pain from the lower back that goes into my both legs, fear, anxiety, depression.”

Pre accident treating medical evidence

On 1 December 2015 the claimant consulted Dr Vukoje GP in relation to his involvement in a motor vehicle accident the day before.[4] He complained of low back pain, neck pain, middle back pain, numbness on the back of both thighs, left shoulder pain, numbness of the inner side of the left upper arm and left forearm, palm of the left hand … and left fourth and fifth finger; shock and anxiety. Dr Vukoje provided general advice and provided a referral for an X-ray of the cervical, thoracic, and lumbar spine and of the left shoulder.
[4] Insurer’s bundle p 76.
On 11 November 2019 the claimant saw Associate Professor John Carmody in respect of headaches often arising from the cervical region radiating through the occiput to the vertex.[5] An MRI of the brain on 29 October 2019 did not demonstrate any abnormality.

Post-accident treating medical evidence

[5] Insurer’s bundle p 70.

Dr Milena Vukoje, general practitioner

Dr Vukoje issued a certificate of fitness dated 17 March 2022 in which she diagnosed whiplash injury to the neck, shock, anxiety, stress and depression, severe lower back pain radiating to both thighs and lower legs to the left little toe, mid-back pain, pins and needles and numbness in the back of both thighs and legs, weakness in the left leg and left hand, right and left shoulder pain, left greater than right.
Dr Vukoje referred the claimant to Dr Blagoje Kuljic, psychiatrist on 5 March 2022.[6] He described the presenting problem as follows:
“anxious
decreased mood;
in shock;
disturbed sleep;
under stress
he wanted to sell his current house and buy another house;
he wanted to invest money in renovation but had to cancel it;
feels physically and mentally not fit for that after the subject MVA on 17.02.2022.”
[6] Claimant’s bundle p 476.
Dr Vukoje referred the claimant to Dr Medhat Guirgis on 3 November 2022. She described the presenting problem as follows:
“c/of lower back pain radiating to the left leg up the left little toe;
“pins and needles” of back of both thighs and lower legs;
numbness and “pins and needles” of the palmar aspect of the left and right fourth and fifth finger and inner side of the left and right forearm;
left sided neck pain radiating to the left shoulder and muscles between his neck and left shoulder;
feels weakness in his left hand and left leg;
left and right shoulder pain, L>R over the inner sides of both forearms;
had steroid injection of the left shoulder on 24.10.2022 with very mild improvement in his symptoms.”
Dr Vukoje issued a certificate dated 11 March 2023. She stated Mrs Slavka Zjacic is an 84 year old woman who suffers from multiple chronic medical conditions. She is prescribed multiple medications and requires help from her son with everyday life activities and to attend medical appointments.

Dr Darweesh Al-Khawaja, neurosurgeon

On 31 May 2022 Dr Al-Khawaja assessed the claimant who reported severe spinal pain affecting his neck, thoracic spine and lumbar spine.[7] On examination he reported minor limitation of extension of the cervical spine and moderate limitation of flexion of the lumbar spine. Otherwise, his examination including motor function, sensation and reflexes was normal.
[7] Claimant’s bundle p 466.
Dr Al-Khawaja recommended injecting the C3/4 level and physiotherapy for the thoracic spine. He recommended an epidural block for the lumbar spine and if that did not help suggested surgical intervention to fuse the spine at the L5/S1 level.

Professor George Murrell, orthopaedic specialist

Professor Murrell saw Mr Zjacic on 5 September 2022.[8] He reported Mr Zjacic had been having severe pain with overhead activities and severe pain at night. He diagnosed a possible rotator cuff tear of the left shoulder. On 28 September 2022 he reported the X-rays were unremarkable but the ultrasound showed impingement. He performed an ultrasound guided corticosteroid injection of the left shoulder on 24 October 2022.
[8] Claimant’s bundle p 471.

Dr Medhat Guirgis, orthopaedic surgeon

Dr Guirgis saw the claimant on 3 November 2022. He diagnosed:
(a)      post-traumatic mechanical derangement of the cervical area of the spine. He reported the MRI scan of 25 February 2022 showed evidence of a left centro-oblique posterior discophytic protrusion extending backwards to indent into the anterolateral surface of the thecal sac at the C3-4 level, which in combination with the underlying facet joint arthrosis resulted in narrowing of the left neural foramen exit and compression of the left C4 nerve root.   He noted symptoms and signs of left C4 radiculopathy;
(b)     post-traumatic symptoms of rotator cuff syndrome in the left shoulder;
(c)      post-traumatic mechanical derangement of the thoracic area of the spine. He reported MRI evidence of a central posterior disc protrusion extending backwards to indent into the ventral surface of the thecal sac at the T6-7 and T7-8 levels, and
(d)     post-traumatic mechanical derangement of the lumbar area of the spine. He noted the 25 February 2022 MRI showed evidence of a central posterior annular tear associated with a central posterior disc protrusion/extrusion extending backwards to indent into the ventral surface of the thecal sac at the L5-S1 level. He notes symptoms and signs of left L5/S1 radiculopathy.
Dr Guirgis noted at the time of the accident the claimant was a full time carer for his disabled 84 year old mum. Due to his injuries Dr Guirgis considered he was rendered permanently unfit for any form of physically demanding work in the building construction industry.
He assessed a 25% whole person impairment (WPI).

Tia Carter, psychologist

In an Allied health recovery request (AHRR) dated 16 January 2023 Ms Carter identified an adjustment disorder with depression and anxiety. Ms Carter reported the claimant was low in mood, anxious all the time, had bad dreams, woke at night with pain, felt unmotivated, socially withdrawn and had a lack of interest in previously enjoyable activities.

Dr Olga Lavalle, clinical psychologist

Mr Zjacic first consulted Dr Lavalle on 12 January 2023. She stated since the accident he had been feeling low in mood, anxious, unmotivated, easily overwhelmed, irritable, not sleeping well due to pain, lacking interest in previously enjoyable activities, and had withdrawn socially. She recommended eight treatment sessions.
On 22 May 2023 Dr Lavalle reported Mr Zjacic felt anxious, had distressing dreams, felt unmotivated, and low in mood.[9]
[9] Claimant’s bundle p 599.

Dr Blagoje Kuljic, psychiatrist

Dr Kuljic first saw Mr Zjacic on 31 March 2022 when he reported following the accident he had become anxious and worried, he developed insomnia, irritability, poor mood, decreased appetite, poor energy levels and loss of motivation. He diagnosed significant anxiety and depressive symptoms.[10]
[10] Claimant’s bundle p 609.
Dr Kuljic assessed the claimant by video link and provided a report dated
[11] Claimant’s bundle p 580.
8 September 2023.[11] Dr Kuljic diagnosed post-traumatic stress disorder and major depressive disorder. He reported Mr Zjacic had been able to continue to perform his carer’s duties for his elderly mother. However, he thought it unlikely he would ever engage in work as a carpenter for which he was reasonably qualified by reason of his education, training and experience.
D Kuljic provided a report dated 23 December 2023 addressing the opinion of Dr Potter. He described the opinion of Dr Potter as speculative and suggested it appeared to hinge on
Mr Zjacic fearing his mother’s death as against the characterization of the accident as an “ordinary minor motor vehicle accident”. Dr Kuljic opines that the claimant’s lack of pre-accident psychiatric history or treatment raises doubts about the assertion that he has been battling depression due to his mother’s situation.
He further contends that trauma isn’t solely determined by the severity of the accident or resultant physical injuries but the cognitive perception of the threat. He concludes that based on his comprehensive understanding of Mr Zjacic’s condition and his reported symptoms over time there is ample evidence supporting the fulfilment of post-traumatic stress disorder criteria. Dr Kuljic says in his opinion post -traumatic stress disorder is the definitive diagnosis solely attributed to the accident.

Rohan Laurendet, physiotherapist

Mr Laurendet provided a report dated 12 May 2023.[12] He reported the claimant attended on 30 June 2022 with an extensive history of neck, upper limb, lower back and lower limb pain. He reported Mr Zjacic attended on 24 occasions until January 2023. Mr Laurendet reported treatment consisted of a combination of manual therapy, exercise and education. He reported the claimant had not responded as hoped to the physiotherapy, with no change reported in his pain, movement, or functional capacity. Mr Laurendet concluded the barrier to the claimant’s progress was his lack of compliance with the home exercise program.
[12] Insurer’s bundle p 68.

Imaging

CT scan of the lumbar spine, 21 February 2022 – the report concludes:
“Mild disc bulges at L4-S1 levels. No facet arthritis in the lumbar spine. No nerve root impingement or canal stenosis at any levels.”
CT scan of the cervical, thoracic and lumbar spine, 25 February 2022 – the report concludes:
“Cervical spine: Compression of the left C4 nerve root within the neural exit foramen.
Thoracic spine: no radicular compression is identified.
Lumbar sacral spine: no radicular compression is identified”.
Ultrasound of the left shoulder 8 March 2022 – the report concludes:
“Biceps tenosynovitis
Supraspinatus tendinosis. No tears.
Degeneration AC joint.
Subacromial-subdeltoid bursitis with an effusion.”

MRI of the left shoulder 21 March 2022 – the report concludes:
“Mild postero-distal supraspinatus tendinosis without tear.
Mild to moderate thickening subacromial-subdeltoid bursa and small amount of bursal fluid.
Quiescent appearing AC joint OA.
No labral tear.
Small amount of non-specific synovial thickening at the rotator interval medially. No convincing evidence of a capsulitis.”
Ultrasound of the left shoulder – 28 September 2022 – the report concludes:
“Bursitis with impingement
Supraspinatus tendinopathy
AC joint degeneration.”

Medico-legal reports

Dr Anil Nair, orthopaedic surgeon

The claimant was assessed by Dr Nair at the request of the insurer. He provided a report dated 2 February 2023.
He reported the claimant previously worked as a carpenter. He had not worked for about 12 years because he was taking care of his mother who was not well. He reported pain in the cervical, thoracic, and lumbar spine and pain and stiffness in the left shoulder. Mr Zjacic described difficulties with household activities including mowing the lawn and cleaning.
Dr Nair diagnosed an aggravation to an underlying cervical spondylosis, thoracic spondylosis and lumbar spondylosis as well as an aggravation to left shoulder impingement. He accepted that the claimant’s difficulties with heavier gradation of tasks is likely to continue indefinitely.
Dr Nair assessed 18% WPI.
In a supplementary report dated 11 August 2023 Dr Nair stated that the medical imaging he looked at when he examined the claimant on 25 January 2023 revealed chronic and longstanding changes in the cervical spine, thoracic spine, lumbar spine and left upper extremity.[13] He concluded these pre-existing conditions would have degenerated in a slow and progressive fashion in the absence of the accident and would most likely have precluded the claimant from performing manual tasks in any event.
[13] Insurer’s bundle p 22.

Report of Dr Brian Potter, psychiatrist

Dr Potter assessed the claimant at the request of the insurer and reported on
[14] Insurer’s bundle p 25.
30 October 2023.[14]
He reported the claimant painted a picture of an isolated alone man living at home to look after his aged mother in case she falls and dies. He did not find any clear features expected for a diagnosis of post-traumatic stress disorder. Dr Potter stated there was no clear history of a connection with pain interfering with his physical ability around the house. He further stated:
“Historically there is, of course, the possible aetiology of a motor vehicle accident. However, this is described as a relatively ordinary minor motor vehicle accident in which he and his driving friend continued on with the demands of the day which interestingly involved attending a funeral.
The funeral event is likely to have been a reinforcement for Mr Zjacic of his fear of his mother dying.
From this limited assessment, it is my opinion that his aloneness, isolation and lack of motivation is more likely to be related to his fears about his mother and not related to the motor vehicle accident.”
Dr Potter concluded the most likely diagnosis was somatoform disorder with an emotional aetiology of a mother dying. Dr Potter thought there was no clear definitive psychiatric impediment to work. He said he presented with features consistent with depression which could be managed on an outpatient level if there was the interest and desire to work.

THE RELIABILITY OF THE CLAIMANT’S EVIDENCE

I had the opportunity to assess Mr Zjacic when he was questioned during the assessment conference with the benefit of an interpreter Ms Rajka Topic. I formed the view Mr Zjacic was an honest witness who answered questions directly, without the need for detailed explanation, and who did not hesitate to make concessions against his own interests.
Mr Zjacic was questioned about the inaccuracies in both statements about his involvement in the earlier accident, particularly where he continued to assert in his supplementary statement that he had not sustained injury or sought medical treatment. In fact, he consulted
Dr Vukoje who recorded injuries similar to those suffered by the claimant in the subject accident. However, there is no suggestion Mr Zjacic suffered ongoing complaints between the 2015 accident and the subject accident and I do not consider his lack of recall relating to that accident to be sufficient to question the reliability of his evidence generally.

THE INJURY SUSTAINED BY THE CLAIMANT

There is no dispute Mr Zjacic sustained injuries to his neck, back and left shoulder in the accident. I find the claimant sustained an aggravation of an underlying cervical spondylosis, thoracic spondylosis and lumbar spondylosis and impingement of the left shoulder.
I prefer the opinion of the treating psychiatrist Dr Kuljic as to the psychiatric condition. I do not accept the opinion of Dr Potter that the likely diagnosis was somatoform disorder with an emotional aetiology of a mother dying. As Dr Kuljic opines the lack of any pre-accident psychiatric history is not consistent with the idea that Mr Zjacic was battling depression due to his mother’s condition. I also accept that whether or not the accident was a “relatively ordinary minor motor vehicle accident” and the evidence suggests it was not a minor accident, trauma can be determined not only by the severity of the accident but the cognitive perception of the threat. I find the claimant suffers from post-traumatic stress disorder and major depressive disorder as a result of the accident.
Whilst I note the claimant’s comments about the hernia there is no medical evidence before me to substantiate the assertion the claimant sustained a hernia caused by the accident and I do not accept any hernia is causally related to the accident.

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 current maximum payable for non-economic loss is $620,000.
The claimant submits an appropriate allowance for non-economic loss is $400,000 whilst the insurer submits, I should allow $250,000.
Mr Zjacic developed pain in multiple regions following the accident and whilst he has consulted specialists including Dr Al-Khawaja, Dr Guirgis and Professor Murrell, and attended physiotherapy, treatment has been largely ineffective in ameliorating the claimant’s physical symptoms.
Mr Zjacic described pain and restriction of movement in his left shoulder, neck, upper and lower back with radiation of pain into both arms and radiation into both legs. He says he cannot bend, lift and squat as before. He has a loss of agility and experiences back pain when walking, standing or sitting for any length of time. He is no longer able to provide the same level of care to his mother and is largely incapacitated for return to employment.
The claimant’s physical symptomatology is exacerbated by the impact of his psychiatric symptoms. He now suffers from anxiety, nightmares, flashbacks, insomnia and depression. He says he has become morose, bad tempered and difficulty to live with.
Dr Potter described the claimant as an “isolated alone man living at home to look after his aged mother in case she falls and dies”. This is a telling description. Whilst Mr Zjacic lived and cared for his mother before the accident his life was very different. At the time of the accident Mr Zjacic had been in a relationship for 12 years; he equates the end of that relationship, which he says was caused by the accident, as the end of his sexual life. Prior to the accident he enjoyed life, attending social events, dinners and dancing including Serbian traditional dancing. He also enjoyed playing social soccer, basketball and fishing.
The claimant is now 47 years of age with a life expectancy of 35 years. The accident occurred over two years ago and there is no suggestion of any treatment likely to improve the claimant’s prognosis. In the circumstances I consider $300,000 to be an appropriate assessment of damages for non-economic loss.

Future economic loss

In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances.
Prior to ceasing work to care for his mother the claimant worked in the construction industry as a formwork labourer before progressing to work as a formwork carpenter. The claimant provided payslips showing employment by Entarmi Pty Limited and by Dunmore Formwork Pty Ltd during 2007 and 2008. The payslip from Dunmore Formwork Pty Ltd dated
20 June 2007 shows year to date earnings of $13,402.80, travel allowance of $1,505 and tax of $4,608. The most recent payslip is from 9 April 2008.
A Notice of Assessment for the financial year ended 30 June 2007 shows a taxable income of $31,012 with tax of $4,653. A Notice of Assessment for the financial year ended
30 June 2008 shows a taxable income of $40,173 with tax of $6,651.
The claimant asserts he intended to return to work as a formwork carpenter when his mother no longer required care. A claim is made for future economic loss on the basis the claimant would ultimately have returned to work as a formwork carpenter earning the sum of $2,000 net per week until age 70 years.
The insurer concedes the claimant is physically disabled from performing heavy manual work. However, the insurer submits the most likely circumstances but for the accident are that the claimant would have remained his mother’s carer for another 7.45 years, being his mother’s life expectancy. At that time the claimant would most likely have been unsuited to heavy manual work by virtue of the pre-existing degenerative changes in his spine and left arm and his age of 53 years. His longstanding absence from the workforce and his poor English skills would have made employment in any capacity unlikely. The insurer submits a modest buffer of $50,000 reflects the likely economic impact of the claimant’s reduced working capacity.
The claimant relies on a letter from Sasha Veselinovic, managing director of Unique Style Homes.[15] He states he invited Mr Zjacic to join his team as a full-time carpenter in October 2021 and again in September 2022. He states due to health reasons he was unable to accept the offers. Mr Veselinovic states, “The offered full-time position entailed a wage rate of $46 per hour for a standard 38 hour week, with overtime at a rate of 1.5 times the regular rate for work on Saturdays.”[16]
[15] Claimant’s bundle p 169.
[16] Claimant’s bundle p 336.
When questioned Mr Zjacic confirmed Mr Veselinovic was a friend who he had known for three or four years. Whilst Mr Zjacic had not worked in the construction industry for over 10 years Mr Zjacic said the community in Wollongong was small and whilst he had never expressed any intention of looking for work at that time he understood Mr Veselinovic had heard from others that he was a good worker and it was in that context that he was approached. He agreed his rejection of the offer of employment in September 2021 before the accident was because he was caring for his mother and he rejected the suggestion he refused the offer of employment at that time because of headaches.
The claimant seeks to rely upon a statement by Dragan Gagic dated 30 November 2023.
Mr Gagic stated formal qualifications were not required to work as a formwork carpenter, formwork carpenters work a six day week and are highly paid. Mr Gagic stated he worked as unqualified formwork carpenter in 2022 and his net earnings were $2,200 per week. Pay records furnished by Mr Gagic confirmed he regularly earnt in the region of $2,000 net per week working as a formwork carpenter. He has since become self-employed.
When questioned Mr Zjacic confirmed he did not know Dragan Gagic and was not able to comment on his level of experience. Noting Mr Gagic has 18 years’ experience in the construction industry Ms Allan suggested he was not a comparable employee.
The insurer relies upon a Labour Market Analysis report of Rodney Stinson dated
15 September 2023.[17] In providing a report he was asked the assume the following:
[17] Insurer’s bundle p 38.
(a)      the claimant was born in Croatia;
(b)     he completed high school, and thereafter sold household products at the markets, and undertook various physical tasks such as loading and unloading items;
(c)      in 2004, aged 28, he came to Australia with his family as refugees;
(d)     on arrival the claimant undertook English classes, though his English was and remains very poor, such that he requires a translator to receive medical treatment;
(e)      in around mid-2005 the claimant obtained a role he described as a ‘formwork carpenter’;
(f)      the claimant’s skills were learned ‘on the job’;
(g)      the claimant worked as a ‘formwork carpenter’ until 2009 at the latest, after which he commenced caring for his mother;
(h)     from 2009 to date the claimant has not worked other than to care for his mother. He has received Centrelink benefits;
(i)       the claimant continues to care for his mother and anticipates doing so for the remainder of his mother’s life expectancy;
(j)       at that time, the claimant will be 53 years of age, and
(k)      the claimant alleges he will then commence full-time work as a formwork carpenter earning $2,000 net per week.
Mr Stinson concluded the claimant would experience barriers if he were to seek work as a formwork carpenter. He considered it unlikely that he would have acquired through his 2005 to 2009 work and on-the-job training, formwork competencies and skills close to those of a trade-level formwork carpenter. Secondly, his lack of English would limit, if not preclude his ability to communicate clearly, reliably and safely in the workplace and would limit his potential to overcome the shortfall in his competencies through training.
He stated the median income for unqualified carpenters working full time in New South Wales as of August 2021 for all age groups between 30 and 69 years of age would be in the $1,250 to $1,499 range. It would be in the middle of that estimated range for the 50 to 59 and 60 to 69 age groups.
I find the accident has caused a change in the claimant’s most likely future circumstances in that it has rendered him permanently unfit for employment in the construction industry.
Furthermore, I consider had the accident not occurred the claimant’s likely opportunities for return to employment were limited to the construction industry having regard to his poor English, his lack of other qualifications and his lengthy absence from the workforce. I consider the accident has rendered the claimant unemployable.
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 his earning capacity and, if so, whether that loss or diminution will result in economic loss. I am satisfied the claimant has sustained a loss or diminution in his earning capacity which will be productive of economic loss.
I accept it was the claimant’s intention to return to work in the construction industry as either a formwork carpenter or a formwork labourer when his mother no longer required care. However, it is difficult to be satisfied that the claimant had the capacity to earn $2,000 net per week where his experience in the construction industry was limited to about three years and where he has not worked for 15 years. I agree with the insurer that Mr Gagic is not a comparable employee to the claimant and whilst I note Mr Veselinovic also stated a full-time carpenter could earn $46 per hour it is difficult to be confident Mr Zjacic had the qualifications or experience to work as a full time formwork carpenter.
The claimant argued I should assess damages for future economic loss by way of a calculation based on a net weekly loss whilst the insurer argued it was more appropriate to assess damages by way of buffer.
I propose to assess damages by way of a net weekly loss.   However, I propose to adopt a figure of $1,000 net per week for the following reasons:
(a)      it is an average of the median income for unqualified carpenters nominated by
Mr Stinson;
(b)     having regard to the claimant’s limited earnings as a formwork labourer or formwork carpenter between 2005 and 2009;
(c)      having regard to the claimant’s concession that he did not always have full-time work or work a full year when he was working in the construction industry, and
(d)     where the claimant has been out of the paid workforce for 15 years.
I do not propose to allow future economic loss until age 70 having regard to the heavy nature of the work and where the claimant would be eligible to receive the age pension at 67 years of age, assuming he otherwise qualifies for the pension.
Furthermore, whilst the claimant was clearly asymptomatic at the time of the accident I note the opinion of Dr Nair as to the possible impact of the pre-existing degenerative changes upon the claimant’s ability to maintain heavy work in the construction industry and accordingly I propose to increase the discount for vicissitudes to 20%.
Having regard to the life expectancy of the claimant’s mother I propose to calculate future wage loss for a period of 13 years (from age 54 to age 67) deferred for seven years.
I calculate future wage loss as follows:
· $1,000 x 502.3 (multiplier for 13 years on 5% tables) x 0.711 (multiplier for 7 years on the deferred tables) x 80% = $285,708.24.
I assess damages for future loss of superannuation benefits calculated at 11% of the claimant’s net future wage loss in the sum of $31,427.90.
Accordingly, I assess damages for future economic loss in the total sum of $317,136.14.

ASSESSMENT OF DAMAGES SUMMARY

I assess the claim as follows on the findings set out above:
Non-economic loss  $300,000
Future loss of earnings  $317,136.14
TOTAL DAMAGES ASSESSED  $617,136.14

COSTS AND DISBURSEMENTS

I refer to the claimant’s schedule of costs and disbursements. The insurer had no objection to the disbursements as claimed.
I allow one additional hour for the assessment conference noting the assessment concluded at approximately 12.30pm.
The claim made for conferences is unclear. In the schedule of disbursements set out in the letter dated 20 November 2023 a claim was made for $1,200 for conferences. In the amended schedule uploaded to the portal in accordance with my direction on 5 March 2024 the claim is described as “2 hours = 6 monetary units”. Conferences directly related to an assessment of a claim for damages are assessed at the rate of $338 per hour. I consider it reasonable to allow more than 2 hours for conferences. Accordingly, I have allowed the sum of $1,200 as initially claimed.
I allow the sum of $471.55 plus GST in respect of fees for clinical records as claimed.
Whilst a claim was made in the sum of $1,919 in respect of Dr Kuljic’s report fee, I note that is the maximum sum payable excluding GST. I note the report fee was $1,800 plus GST of $180. I allow that sum. I otherwise allow the amounts claimed in respect of the report fee paid to Dr Girgis and the supplementary report fee paid to Dr Kuljic noting both fees are inclusive of GST.
I allow the sum of $2,280 plus GST in respect of interpreters’ fees as claimed.
Accordingly, I assess the claimant’s costs and disbursements in accordance with the attached Damages and costs calculator in the total sum of $53,584.47.

[2024] NSWPIC 105

6 March 2024