Motor Accidents Division Claim – Client vs. Insurance Company

PERSONAL INJURY COMMISSION

MOTOR ACCIDENTS DIVISION

CLAIMS

Matter number: M20334/23

Claimant: Young

Insurer: QBE Insurance (Australia) Limited

Member: Susan McTegg

Date of determination: 16 April 2024

Method of determination: In-person assessment conference hearing on 3 April 2024

Representation: Claimant: Mr. Michael Sciglitano, counsel; 

Ms. Elysia Marocchi, Marocchi Law

Insurer: Ms. Christine Allan, counsel;

Ms. Michelle Landers, Moray & Agnew;

 Ms. Meena Singh, Insurer representative

Certificate

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

Assessment of Claim for Damages made in accordance with s 7.36 of the Act

  1. On the issue of liability for the claim, the NRMA’s insured owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury loss and damage as a result of that breach of duty. The claimant’s damages are reduced for contributory negligence assessed at 25%.
  2. Under ss 7.36(3) and 7.36(4) of the Motor Accident Injuries Act 2017 (the MAI Act), I specify the amount of damages for this claim as $361,066.73.
  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 MAI Act is $49,510.71 inclusive of GST.
  4. Attached to this certificate are reasons for my assessment.

Susan McTegg

Member (Motor Accident Division)

Personal Injury Commission

REASONS FOR DECISION

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

INTRODUCTION

  1. Young (the claimant) sustained injury in a motor vehicle accident on 28 April 2019 (the accident).
  2. I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (MAI Act) in respect of the injury sustained by the claimant.
  3. QBE Insurance Australia Limited (the insurer) is the relevant insurer with liability to pay damages to the claimant under the MAI Act.
  4. Mr. Young lodged a common law claim for damages dated 10 May 2021.
  5. In a liability notice issued under s 6.20(1) of the MAI Act dated 18 September 2023, the insurer admitted liability for the claim but alleged contributory negligence of 70% on behalf of the claimant. This was consistent with a decision of Member Belinda Cassidy in a miscellaneous dispute who issued a certificate dated 23 November 2020 where she determined the claimant was mostly at fault for the accident, on the basis his contribution to the accident was 70%.
  6. The claim was listed for assessment on 3 April 2024. Mr. Young was represented by Mr. Michael Sciglitano of counsel instructed by Ms. Elysia Marocchi of Marocchi Law. The insurer was represented by Ms. Christine Allan of counsel instructed by Ms. Michelle Landers of Moray & Agnew Lawyers. Ms. Meena Singh from the insurer was also present.
  7. The issues in dispute are the following:
    • whether there was any contributory negligence by the claimant, and
    • the assessment of damages.
  8. I am asked to assess damages in respect of the following:
    • non-economic loss;
    • past economic loss, and
    • future economic loss.
  9. The parties agreed statutory payments made to the claimant pursuant to s 3.40 of the MAI Act total $28,766.05. However, the insurer did not concede the claimant had any entitlement to recover damages for past economic loss.
  10. The parties agreed the claimant is entitled to recover the sum of $7,559 being the sum withheld in tax from the statutory payments.
  11. In assessing damages for economic loss, the insurer argues the claimant has not been able to demonstrate any loss.

CONTRIBUTORY NEGLIGENCE

The evidence

Application for personal injury benefits

The Application for personal injury benefits was completed by the claimant on 13 May 2019. He states:

  1. “On approach onto Anzac Bridge from Harbour Bridge stationary vehicle presented itself causing me to collide with it.”

Police report – Event Ref No. E71395043

The police report states:

  1. “The vehicle AY086D (NSW) broken down at ANZAC bridge while it was travelling west bound. The driver turned the hazard lights on and parked the vehicle on the far right lane on three lanes. It was alleged the motor cycle ADZ97 (NSW) was travelling on the same direction at a high speed on the same lane. The rider of motor cycle tried to overtake the parked vehicle, however, the front right side of the motor cycle collided with the rear off-side of the vehicle. … .”

Statement of the claimant dated 4 November 2020

  1. Mr. Young was travelling home from Balmoral Beach with his pillion passenger Ms. Viladecas when the accident occurred. Mr. Young stated he had held a license for four years, he drives about 10,000km per year and rides about 5,000km per year. He was familiar with the accident location. His statement dated 4 November 2020 contains the following relevant paragraphs:
  1. We were travelling in lane 3. The road was sweeping gradually to the right. It was my intention to take the right lane, which goes onto the Anzac Bridge. I put my right indicator on and checked my rear vision mirror to ensure that the right lane was clear. It was clear and safe for me to change lanes, so I commenced doing that.
  2. As I was changing lanes the four wheel drive in front of me, which I had been travelling behind also indicated and changed into the right lane. I followed into the right lane behind him at a safe distance.
  3. Whilst I was changing into the right lane I again checked my right side mirror to ensure it was safe. This was just for a split second. When I looked back in front of me I saw that the four wheel drive, which had just changed into the right lane, had suddenly changed back into the middle lane. I believe the 4 wheel drive changed lanes quite aggressively.
  4. As the four wheel drive moved back out to the right lane, I could not see further ahead and suddenly saw that there was a vehicle which was stationary in the right lane. It was obvious that the four wheel drive had suddenly changed back to avoid colliding with the stationary vehicle. I estimate that it was only a second or so in front of me when it suddenly became visible.
  5. I did not have time to avoid the collision. I could not have braked in such a short distance. All I could do was attempt to swerve to the left but I could not actually completely avoid the collision.
  6. I think it was the right foot peg of my motorcycle that collided with the left portion of the rear bumper of the stationary car. The collision was fairly hard and Sandra and I were both thrown off the bike. … .

32 The driver of the stationary vehicle that I collided with …approached us. ….

33..… . I said, ‘why is your car stopped?’. She said, ‘I ran out of petrol’.

  1. The accident occurred because the other vehicle had stopped in the right lane expectantly. It was a right hand sweep bend, and the four wheel drive in front of me had changed into the right lane so then it was slight to my right and in front, I could not see the stationary vehicle at all until the four wheel drive suddenly changed back into the middle lane.
  2. It was only at that time that I could see the stationary vehicle, by which time it was too late to stop or to avoid the collision. I do not believe I could have avoided the collision. I did not have the time to brake and I could only attempt to swerve to the left to avoid the collision.”

The claimant’s oral evidence

  1. Mr. Young was questioned at the assessment conference about the circumstances of the accident. He stated when he approached the Anzac Bridge he thought the traffic was flowing. He said he could see 50 or 100 cars up along the whole stretch. He followed the 4WD into the lane he was going, checking on his right hand side, noting there were about four lanes merging into one to go onto the Anzac Bridge. He said as he looked around the 4 Wheel Drive (4WD) abruptly went back out to the centre lane and before he knew it the car was stopped in front of him and he clipped it on the side. He said there was nothing to show there was anything stopped and from where he was sitting it looked like it was flowing.
  2. It was agreed there was a lot of merging traffic at that point. He said he checked his rear view mirror before changing lanes. Mr. Young was adamant that he followed the 4WD as it moved into the right-hand lane. Mr. Young did not concede the 4WD had started to move out of the right-hand lane when he started to move into that lane. When shown the dashcam footage Mr. Young became noticeably upset.
  3. Mr. Young did not agree he moved into the right-hand lane to move around the 4WD stating he thought he followed it in.
  4. Mr. Young did not agree the 4WD moved into the lane in front of him and before he completed his move Mr Young started to move into the right-hand lane. When asked to confirm he did not check what was ahead of him in the right-hand lane, Mr. Young stated he did check but only “to what he could see”. Mr. Young said he could see way up the bridge, but he just couldn’t see the car which was parked. Mr. Young said he thought all the traffic was moving.

Statement of Lili Chang

  1. Ms. Chang provided a statement dated 27 September 2019. She stated she was not tired at the time of the accident, she was familiar with the roadway and to the best of her knowledge, the headlights, indicators, and tires were all in good working order. Ms. Chang was traveling from the city to the Western Suburbs with two friends who subsequently returned to China. The blue Lexus sedan was a 2005 model and was owned and registered by her brother-in-law’s father. Ms. Chang had been driving for over 10 years.

Relevantly she stated:

  1. I recall I was travelling west on the overpass over Circular Quay heading west towards the Anzac Bridge. I was in lane 2 of 2 and all of a sudden, I have come to a stop suddenly, and suspected that I have run out of petrol, in the outside lane, lane 2, on a slight uphill gradient. The fuel indicator light showed low.
  2. I remained in my car and put on my hazard lights that are shown in the photos provided.
  3. I remained in the car and called my Husband, but he was heading to an important meeting and then called my brother-in-law to ask what to do. …
  4. I believe it was about 20 minutes after I broke down in the position shown … and this is when I just felt and heard a collision with the back-passenger corner of my car.
  5. I looked and saw the claimant’s motorbike had hit my car and …”

Dashcam footage

  1. Dashcam footage was provided. It had been taken from the vehicle travelling behind the claimant’s motorcycle.
  2. The dashcam footage shows the claimant travelling in a westerly direction in lane 2 of three lanes on the Western Distributor heading towards the Anzac Bridge. The claimant is seen to navigate a right bend. A 4WD vehicle travelling a short distance ahead of the claimant is in lane 3 of 3. The 4WD is seen to suddenly change from lane 3 into lane 2 and whilst the 4WD is still changing lanes the claimant starts to move from lane 2 into lane 3. It is apparent that after the motorbike moves into lane 3 that the stationary vehicle becomes visible to the claimant who immediately swerves back towards lane 2 but clips the left rear corner of the insured vehicle in doing so. As a result, the motorcycle falls to the road and the claimant and his pillion passenger separate from the motorcycle and slide along lane 2 before coming to a rest. The motorcycle slid into lane 3 before coming to a rest.

Expert report of Grant Johnston

  1. Mr. Johnston, a Forensic Consulting Engineer, provided a report at the request of the claimant’s lawyers dated 7 July 2023.
  2. Mr. Johnston was provided with the dashcam footage but he was not provided with a copy of any police investigation, any statement of the claimant, or any statement of the insured driver.
  3. Mr. Johnston noted that the Western Distributor where the accident occurred is an access-controlled Motorway which means it is grade-separated from the normal street network. There are no intersections with the normal street network and access to and from the Motorway is via ramps at access-controlled interchanges. There are no shoulders or parking lanes for disabled vehicles to stop clear of the through lanes. Significantly there is no stopping or turning permitted other than traffic considerations.
  4. Mr. Johnston noted the right bend on which the accident occurred turned through approximately 65 degrees over approximately 260 meters. The exit to the bend could not be seen on the approach to the bend. The accident occurred approximately two-thirds of the way through the bend. He stated it was likely that the stationary vehicle would not have been visible near the beginning of the bend and would not have been visible from lane 3 until at least halfway through the bend.
  5. To analyse the dashcam footage, Mr. Johnston imported the video footage into specialised software which provided technical detail about the footage. Mr. Johnston noted the dashcam footage was taken from an unknown vehicle travelling west initially in lane 3 before changing into lane 2 before the accident, presumably due to identifying the stationary vehicle in lane 3.
  6. Mr. Johnston reported the stationary vehicle became visible in the dashcam footage as the car in which the dashcam was fitted travelled around the right bend and reached a position approximately 40 meters from the insured vehicle. Mr. Johnston also noted that when the stationary vehicle first becomes visible it is difficult to initially discern that the vehicle was stationary and not moving along the lane.
  7. Mr. Johnston concludes that it is likely that the size and position of the 4WD in lane 3 would have occluded the claimant’s view of the stationary vehicle in lane 3 until the 4WD moved out of lane 3 and the claimant’s motorcycle started to move into lane 3.
  8. He notes shortly after the 4WD begins to change lanes towards lane 2, the right-hand indicator on the motorcycle is seen to be activated and the motorcycle moves towards lane 3 before suddenly turning back towards lane 2 in an arc as the stationary vehicle becomes visible.
  9. Mr. Johnston also utilised a program called Veedub64 (Veedub) which permitted him to go frame by frame through the footage. He identified 197 frames and a frame rate of 30 frames per second.
  10. He notes the first frame of the dashcam footage shows the position of the vehicle in which the dashcam was fitted, the initial position of the motorcycle in lane 2, and the 4WD in lane 3. He states the dashcam footage shows that the approximate speed of the vehicle with the dashcam was 55 kilometres per hour, and notes both the 4WD and the motorcycle were travelling at a similar speed. He also notes whilst the stationary vehicle can be seen its hazard lights are not visible and it cannot be discerned that it is stationary. He also notes that there is no congestion or queuing of vehicles behind the stationary vehicle.
  11. Mr. Johnston notes that frame 70 from the Veedub program shows the approximate speed of the dashcam vehicle to be 54kmph. The motorcycle appears to accelerate slightly as it changes lanes and could be momentarily faster than the dashcam vehicle at 55 to 60kmph before reducing speed as it swerves back into lane 2 away from the stationary vehicle.
  12. Frame 91 from the Veedub program shows the motorcyclist leaning to the right as he turns towards lane 3. Mr. Johnston states it is unlikely the claimant could see the stationary vehicle at this point having regard to the presence of the 4WD which is seen to straddle the dividing line as it moves from lane 3 into lane 2. Mr. Johnston notes that the speed of the dashcam vehicle is shown as 57kmph and it appears to match the speed of the motorcycle.
  13. Mr. Johnston notes that frame 107 from the Veedub program shows the motorcycle moving from lane 2 towards lane 3 with the stationary vehicle clearly visible. Noting the elapsed time in the frame is 3.567 seconds he concludes the stationary vehicle had only been visible for not more than half a second at this time. He calculates the distance between the motorcycle and the stationary vehicle to be approximately 20 meters.
  14. Frame 120 from the Veedub program shows the claimant with his left leg out to try and lean the motorcycle back to the left as quickly as possible to move around the stationary vehicle. Mr. Johnston calculates that approximately one second after identifying the presence of the stationary vehicle the claimant has responded by trying to steer to the left. Mr. Johnston states a one-second possible response time is slightly faster than the 1.1 seconds which is the historical response of operators to the sudden appearance of an obstacle.
  15. Mr. Johnston reports the speed of the motorcycle was very similar to the speed of the vehicle to which the dashcam was attached based on the general maintenance of the gap between the vehicles except for the moment when the motorcycle accelerated slightly as it started to change lanes. He states the speed of the dashcam vehicle was between 54 and 59kmph up to the time of the collision and he estimates the speed of the motorcycle to be in the range of 55 to 60kmph. Mr. Johnston made an alternative calculation of the speed of the motorcycle by using the timing from the dashcam footage and determining the distance travelled between two points arising at a speed of approximately 57kmph.
  16. Mr. Johnston concludes the claimant had been initially travelling in lane 2 a safe distance behind the vehicle in front. The 4WD had been travelling in lane 3 a short distance ahead. He reports both vehicles were travelling around a right bend and maintaining a reasonably constant distance apart but in adjacent lanes. He concluded the position of the vehicles and the presence of the right curve occluded a portion of the roadway ahead of the vehicle in lane 3 which meant the claimant could not see the stationary vehicle as he changed lanes.
  17. Mr. Johnston concluded if the motorcycle had been travelling at 57kmph he would have needed approximately 18 meters to stop after identifying the presence of the stationary vehicle and therefore it was not possible to brake and avoid impact in the distance available.
  18. He states there was nothing about the manner of riding of the claimant or his avoidance tactics that in any way deviated from what would be expected of a reasonable rider in the circumstances.
  19. Mr. Johnston concluded the insured driver has not properly managed her driving task in entering an access-controlled Motorway with no breakdown lanes or stopping areas when she was low on petrol.

Insurer’s submissions

  1. Ms. Allan submitted the claimant’s memory of how the accident occurred does not accord with the dashcam footage where the footage shows the motorcycle moving into lane 3 without waiting for the 4WD to complete its movement into lane 2.
  2. Whilst the insurer no longer argues the claimant was riding in excess of the speed limit, Ms. Allan argued the claimant was travelling at a speed which was excessive in the circumstances where he was not able to see what was ahead. She noted the claimant’s visibility of lane 3 was impaired by the presence of the 4WD.
  3. Ms. Allan argued the claimant was negligent in moving into the right-hand lane before the 4WD had moved back into lane 2 and where he did not take sufficient care in ensuring he knew what was ahead in lane 3.
  4. In written submissions the insurer referred to the decision of Braund v Henning where the court affirmed the principle that, barring individual circumstances, “the driver of a following vehicle which collides with the vehicle which is ahead of it is usually held primarily liable for the consequences of the collision”. However, in Braund the court found it necessary to deviate from that principle where the vehicle travelling in front had braked suddenly and failed to indicate an intention to turn right. The High Court held the actions of the vehicle travelling in front were “significant in terms of causation”, even though the travelling vehicle bore some responsibility for failing to keep a proper lookout or keep a safe distance. The insurer submitted unlike Braund the ‘intentions’ of the insured driver could not have been clearer; her vehicle was stationary, the hazard lights were activated and other road users had been able to identify the presence of the stationary vehicle and respond accordingly. Therefore, the insurer argues the claimant should be held to be primarily negligent.
  5. In line with the decision of the High Court in Podrebersek v Australian Iron and Steel, Ms. Allan suggested culpability rested with the claimant where the insured driver did nothing more than fail to fill the car with petrol but where the claimant failed to keep a proper lookout in changing lanes where his vision was obscured and he could not see what lay ahead.

Claimant’s submissions

  1. The claimant submits the dashcam footage shows he was driving in a safe manner within the speed limit of 60kmph and indicated prior to merging into lane 3. It is submitted no reasonable person in the position of the claimant could envisage that another person would drive along one of Sydney’s busiest motorways with an empty petrol tank and break down in the right-hand lane which is generally used for overtaking.
  2. The claimant also submits whilst Ms. Chang activated her hazard lights she did not call for roadside assistance or the police, but instead called her husband’s brother-in-law.
  3. The claimant relies upon the decision of the High Court in March v Stramare where the court found the driver of a truck parked with its hazard lights obstructing two centre lanes of a six-lane city road was in a relationship with other users of the road and had a duty to take reasonable care to avoid foreseeable injury to other road users including bad and inattentive drivers and those whose faculties were impaired either naturally or by the effect of alcohol. In that case, liability was apportioned 70% against the appellant where he was found to be intoxicated to such an extent that his ability to judge speed and distance, and his eye functions, coordination and reaction times were impaired.
  4. Noting she had been driving for 10 years, Mr. Sciglitano submitted the conduct of the insured driver was grossly negligent in running out of petrol and in her conduct after she ran out of petrol in failing to call police, or emergency response services, in not alighting from her car and in not even raising the bonnet.
  5. Mr. Sciglitano argued accepting the opinion of Mr. Johnston there was little the claimant could have done where he maintained a safe distance and there was nothing to alert him to any danger. He submitted that contributory negligence should be no more than 10 to 15%.

THE RELIABILITY OF THE CLAIMANT’S EVIDENCE

  1. I had the opportunity to assess the claimant during the assessment conference. I found he was a truthful albeit unsophisticated witness who did not hesitate to make concessions against his own interest.
  2. Where there is disagreement between his evidence and what is apparent from the dashcam footage I accept his evidence is in accord with his honestly held belief.
  3. In relation to his financial affairs, I consider he displayed a degree of financial naivety but note he cautiously relied upon his bookkeeper Susie and his accountant/tax agent to manage his financial affairs.

WAS THE CLAIMANT CONTRIBUTORILY NEGLIGENT

  1. Section 4.17(3) of the MAI Act provides that damages recoverable are to be reduced on account of contributory negligence by such percentage as the Personal Injury Commission (Commission) thinks just and equitable in the circumstances and requires reasons for determining a particular percentage.

Factual findings

  1. Factual findings must be supported by logically probative evidence and any inferences drawn must be reasonably open on the facts.
  1. The following facts are not in dispute:

(a) the accident occurred on 28 April 2019 at about 3.45pm;

(b) Mr. Young was riding his motorcycle on the Western Distributor on the eastern approach to the Anzac Bridge;

(c) Mr. Young had a pillion passenger, Ms. Viladecas;

(d) the insured vehicle a blue Lexus sedan was driven by Ms. Chang;

(e) the insured vehicle was broken down in the third lane, being the right-hand lane out of three lanes heading west;

(f) Ms. Chang suspected she had run out of petrol;

(g) the relevant speed limit was 60kmph;

(h) the claimant was riding his motorcycle at a speed of between 55kmph and 60kmph at all relevant times, and

(i) the weather was fine and the road dry.

  1. Whilst cognisant of the need to use caution when considering photographic evidence, I find the expert interpretation of the dashcam footage by Mr. Johnston of considerable value in assessing the claimant’s contributory negligence.
  2. I am not bound by the findings of Member Cassidy who did not have the benefit of Mr. Johnston’s expert opinion when she made her decision as to whether the claimant was wholly or mostly at fault.
  3. I find the Western Distributor where the accident occurred was an access-controlled motorway and stopping or turning was not permitted other than for traffic considerations.
  4. It is clear from the dashcam footage that Mr. Young did not follow the 4WD into the right-hand lane as he alleged. Whilst I accept the evidence of the claimant is his honestly held belief I find that he is mistaken.
  5. I find shortly before the accident the claimant was travelling in lane 2 of three lanes on the Western Distributor heading towards the Anzac Bridge. The 4WD vehicle was travelling ahead of the claimant but in lane 3 of the three lanes. Whilst negotiating a right-hand bend the 4WD vehicle is seen to change from lane 3 into lane 2 and before completing the lane change the claimant on his motorcycle commences to change lanes from lane 2 into lane 3.
  6. I accept the evidence of Mr. Johnston that the exit to the bend could not be seen on the approach to the bend and, in fact, in all likelihood, would not have been visible from lane 3 until at least halfway through the bend. I accept the evidence of Mr. Young that the traffic as far as he could see looked like it was flowing and he could not see the stationary car.
  7. I find in accordance with the dashcam footage and the analysis of that footage undertaken by Mr. Johnston that the presence of the 4WD vehicle firstly in lane 3 and secondly as it moved into lane 2 occluded the claimant’s view of the stationary car in lane 3. I find it was not until he moved into lane 3 that it became visible to the claimant and at that point the motorcycle was approximately 20 meters from the stationary car in accordance with the calculations of Mr. Johnston.
  8. I find as soon as he identified the presence of the stationary vehicle Mr. Young stuck his left leg out to lean the motorcycle to the left as quickly as possible to move around the stationary vehicle. I accept the calculation of Mr. Johnston that the claimant responded within approximately one second after identifying the hazard which is within the range of historically accepted response times.
  9. I do not agree the claimant was riding his motorcycle at an excessive speed in the circumstances. It is agreed the claimant did not exceed the speed limit of 60kmph. The analysis of the dashcam footage undertaken by Mr. Johnston shows that the speed of the motorcycle was similar to the speed of the vehicle to which the dashcam was attached based on the maintenance of the gap between the vehicles except for the moment when the motorcycle accelerated slightly as it started to change lanes. Based on the dashcam footage Mr. Johnston estimated the speed of the motorcycle to be in the range of 55 to 60kmph and on his alternative calculation he concluded Mr. Young was travelling at an average speed of approximately 57kmph. Notwithstanding the presence of the stationary car, the traffic was otherwise flowing and it is clear from the dashcam footage that the motorcycle was traveling a safe distance from the vehicle in front and his speed was consistent with the traffic flow generally.
  10. I find the insured driver drove her vehicle onto an access-controlled motorway when she knew it was low on petrol. The insured driver was familiar with the Western Distributor and would have been aware that it was a motorway with no breakdown lanes or stopping areas.
  11. After her car broke down I find the insured driver activated her hazard lights and telephoned family members for assistance. She did not raise her bonnet to make her stationary vehicle more visible to other road users. She did not call either the police or emergency assistance.

The assessment of contributory negligence

  1. In Podrebersek the High Court at [10] stated:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.”

  1. However, in assessing the claimant’s degree of culpability in accordance with Podrebersek I find the decision in the matter of Braund v Henning to be instructive. Whilst the court affirmed the principle that, barring individual circumstances, “the driver of a following vehicle which collides with the vehicle which is ahead of it is usually held primarily liable for the consequences of the collision”, the court deviated from that principle where the vehicle travelling in front had braked suddenly and failed to indicate an intention to turn right. The court held the actions of the vehicle travelling in front were “significant in terms of causation”, even though the travelling vehicle bore some responsibility for failing to keep a proper lookout or keep a safe distance.
  2. The insurer submitted unlike Braund the ‘intentions’ of the insured driver could not have been clearer; her vehicle was stationary, the hazard lights were activated and other road users had been able to identify the presence of the stationary vehicle and respond accordingly.
  3. I do not agree with the insurer. As in Braund, I find it necessary to deviate from the usual principle. I find when he moved from lane 2 into lane 3 the claimant’s visibility of the road ahead was obscured by the presence of the 4WD vehicle. I find the actions of the insured driver were significant in terms of causation even though I also find the claimant bore some responsibility in failing to keep a proper lookout.
  4. I find the insured driver created an unexpected hazard in running out of petrol on a busy motorway which prohibited stopping. I find her vehicle was not readily visible to other road users coming up behind her stationary vehicle notwithstanding the activation of hazard lights. Even though other vehicles had been able to identify the presence of the insured vehicle for the 20 minutes it was stationary in lane 3 of the motorway it is not surprising that ultimately there was a collision. I find the risk of another vehicle colliding with the stationary vehicle was foreseeable and not insignificant.
  5. The hazard created by the stationary car was unexpected. It was apparent from the dashcam footage that the stationary vehicle was not visible until the vehicle with the dashcam footage was approximately 40 meters away and initially it was not readily discernible that it was stationary and not moving and nor were the hazard lights visible.
  6. The insured driver was also negligent in her response after her car broke down. She did not break down on a quiet suburban street but on lane 3 of a major motorway. Yet she did no more than activate her hazard lights and telephone family members for assistance. I find the insured driver was negligent in failing to call the police or emergency assistance and in failing to raise her bonnet which would have made her stationary vehicle more visible to vehicles coming up behind it.
  7. Whilst Mr. Young believes there was nothing untoward in his manner of driving, I am satisfied he failed to keep a proper lookout when he moved into lane three at a time when his visibility of the road ahead was obscured by the presence of the 4WD vehicle.
  8. Keeping in mind the claimant was riding a motorcycle and his visibility generally would be impeded by the size of other vehicles on the road, I am satisfied that his obligation to keep a proper lookout would include ensuring his visibility of the road ahead. Had he waited until the 4WD had moved fully into lane 2 before changing lanes he would have been in a better position to observe the traffic ahead in lane 3 including the stationary car.
  9. However, I am otherwise satisfied that the claimant’s manner of riding and his avoidance tactics once he became aware of the stationary car are what would be expected from a reasonable rider in the circumstances.
  10. In keeping with the decision of the High Court in March v Stramare I find the insured driver had a duty to take reasonable care to avoid foreseeable injury to other road users.
  11. In summary, I find the insured driver breached her duty of care to other road users by reason of the following:

(a) in failing to ensure her vehicle had sufficient petrol to be driven safely;

(b) in permitting her vehicle to breakdown on a motorway with which she was familiar and which she knew or ought to have known did not have any breakdown lanes or stopping areas;

(c) in driving her vehicle in lane 3 on a busy motorway when she knew the vehicle was low on petrol;

(d) after her vehicle broke down failing to call the police or emergency response service;

(e) after her vehicle broke down failing to raise the bonnet of the car to make it more visible to other road users, and

(f) in allowing her vehicle to create an unexpected hazard on a busy motorway.

  1. I find the claimant was guilty of contributory negligence in failing to keep a proper lookout when changing lanes.
  2. In apportioning responsibility for the damage between the claimant and the insured driver in accordance with Podrebersek I find the culpability of the insured driver in running out of petrol on lane 3 of the motorway thereby creating an unexpected hazard was greater than the culpability of the claimant. Having regard to the claimant’s manner of riding and keeping in mind the lack of visibility of the stationary car as shown on the dashcam footage I find any failure by the claimant to keep a proper lookout only amounted to contributory negligence of 25%.

THE ASSESSMENT OF DAMAGES

The claimant’s evidence

  1. The claimant provided a statement dated 4 November 2020 and gave oral evidence at the assessment conference.
  2. He was educated to year 10 and described himself as a self-employed builder although in his oral evidence the claimant confirmed he did not hold any trade certificates and in fact, prior to the accident he worked as a project manager but assisted tradesman where he could.
  3. The claimant stated following the accident he was hospitalised for four days. He suffered extensive injuries to his right knee, right shoulder, left thumb and multiple lacerations and bruises. It is apparent from the medical evidence he also injured his lower back and suffered a psychological injury.
  4. Mr. Young reported he was given a home-based gym program for his knee and underwent regular treatment by his general practitioner (GP) Dr. Tringali. When questioned at the assessment he agreed he had not seen Dr. Tringali since 29 December 2020.
  5. Mr. Young underwent surgery to his right knee under the care of Dr. Herald on 4 October 2019. Following the surgery, he wore a brace on his right leg until early 2020 and required crutches to mobilise. He stated his right knee swells every day and he finds it necessary to ice it every day.
  6. Whilst surgery has been recommended for his right shoulder he has steered away from it due to monetary problems. He stated he has pain in his right shoulder and can no longer lift like he used to do.
  7. Mr. Young said he cannot squat, he can no longer run, which he used to enjoy, and he experiences numbness to the front of the shin. He tries to stay away from stairs which inflame his knee. He can no longer surf which he used to enjoy.
  8. Mr. Young stated the fracture to the right foot no longer bothers him. He stated his back always feels like it is jarred. He takes anti-inflammatories every day and occasionally headache pills. He swims regularly and does water-resistant work.
  9. Mr. Young stated the fracture of his left thumb was not diagnosed at the time of the accident but it continues to bother him and he has undergone cortisone injections although not for some time because he cannot afford it.
  10. In relation to his psychological disorder Mr. Young said he experiences anxiety, reacts to noises on the street and becomes nervous speaking in public. In his statement Mr. Young stated he has a fear of driving and loud noises frighten him. He now avoids going out in social groups. He described himself as “diminished”. He said he is now more introverted. I observed Mr. Young become quite upset when viewing the dashcam footage of the accident during the assessment and he also asked to be excused during the final submissions by counsel.
  11. Mr. Young said he does not look forward to sleeping because he has trouble lying on his shoulder or his back and is often awake.
  12. Mr. Young stated he has operated his business Habitat Plus Pty Ltd (Habitat) for 12 years. He started out in landscaping but has now moved into project management. Before the accident, he did a lot of landscaping work, including building decks, walls, pergolas and kitchens in gardens. As a project manager, he organises tradesman to work on a project where the tradesman bills the customer directly. Mr. Young stated he did what he could including small renovations, fixing windows or doors, minor carpentry jobs, painting and digging.
  13. In his statement Mr. Young stated he had three months off work as he was suffering extensively from his injuries. He also described a long recovery from his knee operation, needing crutches to get around and being required to wear a leg brace until early 2020. He also stated that from about July 2019 he returned to work on 20 hours per week. However, when questioned at the assessment conference Mr. Young was unable to recall if he was absent from work for three or six months because of the accident although he referred to an absence at the time of the accident and again following the operation.

THE MEDICAL EVIDENCE

  1. Mr. Young was admitted to St. Vincent’s Hospital on 28 April 2019 following the accident for four days. He was initially amnesiac to events. He was diagnosed with a right scapular fracture, a right foot fracture, a right humerus closed fracture and injury to the right leg including a deep laceration.

On 14 May 2019 Mr. Young consulted Dr. Tringali. He reported:

“Not kod or unconscious ambulance take to St Vincent’s Hosp ED

Shock, headache, cervical pain, right shoulder pain, pain in the scapular intrascapular region

right upper limb bruising/laceration

right chest pain/ribs +++

Back pain R>L with numbness right leg right outer thigh radiating down right foot

Right knee pain swelling right knee +++

Laceration right knee

Right ankle pain/swelling right foot

Fx Right foot

Left hand pain left thumb +++

Phobia with motor vehicle/motor bike paranoia when in traffic

Difficulty driving takes break will only do short trips

Tearful and emotional

  1. Depression.”
  2. An MRI of the cervical spine of 12 July 2019 showed spondylotic changes throughout the cervical spine and an MRI of the lumbar spine demonstrated minor disc desiccation and spondylotic change.
  3. An MRI of the right shoulder of 15 July 2019 demonstrated a scapula fracture and a longitudinal split tear of the long head of biceps, a low to moderate grade insertional tear of the supraspinatus and a moderate grade chronic tear of the subscapularis with moderate muscle atrophy.
  4. An MRI of the right knee of 15 July 2019 demonstrated a high grade complete tear of the posterior crucial ligament (PCL) and a moderate grade tear of the lateral collateral ligament (LCL) and a lateral meniscal contusion.
  5. Mr. Young was referred by Dr. Tringali, GP to Dr. Jonathan Herald, orthopaedic surgeon. On 7 August 2019, Dr. Herald reported Mr. Young also sustained an injury to his left thumb which was not initially noticed. The right foot was painful but after investigations was found not to have a fracture and had recovered. Mr. Young had ongoing pain in his right shoulder and instability in his right knee. The left thumb base was painful and he also had neck and back pain. Dr. Herald diagnosed:
  • a malunited first metacarpal base of left thumb fracture;
  • a right shoulder subscapularis tear with split and dislocated component of biceps tendon;
  • a right knee posterolateral corner tear with instability;
  • whiplash injury to the cervical spine, and
  • a lumbar spine muscle strain.
  1. Dr. Herald recommended physiotherapy for the neck and back. He recommended right shoulder arthroscopic rotator cuff repair and for the right knee a posterolateral corner reconstruction. He concluded he would most likely develop arthritis in the left thumb.
  2. Mr. Young underwent rehabilitation with Incline Health. In an Allied health recovery request (AHRR) No 2 dated 12 August 2019 James Gullotta, chiropractor described the claimant’s current capacity as “no duties” and reported he was engaging in supervised rehabilitation including desensitisation, graded exercise/strengthening, gradual increase in weight loading and sensory re-education. Psychology therapy was also recommended.
  3. Psychologist Alanna Cashman of WorkFocus Australia recommended six sessions of psychological management. In her report dated 13 September 2019 she reported symptoms including insomnia, rumination and pain in the shoulder, knee and left thumb. Ms. Cashman noted Mr. Young reported pain affected everything he did. He also reported guilt connected to his passenger’s injuries. She participated in a teleconference with consultant psychiatrist Dr. Hong and Dr. Tringali. Dr. Tringali reported Mr. Young was highly motivated but was not consuming adequate pain relief medication, had limited capacity and was not fit to work.
  4. In an AHRR dated 2 October 2019 Ms. Maja Popovic of Growth Psychology Consulting diagnosed post-traumatic stress disorder, a phobia of getting into any motor vehicle and anxiety. She reported high physiological arousal, being frightened by loud noises, anxiety, feeling overwhelmed and emotional with low mood. He also had difficulty concentrating, lacked energy and difficulty sleeping. He experienced feelings of hopelessness and could not engage in activities such as playing the guitar and surfing. Ms. Popovic reported Mr. Young was not working, he had a high level of pain daily but was also highly motivated to go back to work.
  5. On 3 October 2019 Mr. Young underwent a right knee arthroscopy plus a PCL reconstruction under the care of Dr. Herald at Strathfield Private Hospital. He was discharged on 5 October 2019 on crutches mobilizing with a knee brace.
  6. On 13 November 2019 Dr. Herald reported he was pleased with the claimant’s progress six weeks post PCL reconstruction. He recommended an intra-articular injection of cortisone and local anaesthetic into the left first carpometacarpal (CMC) joint post-traumatic arthritis.
  7. On 17 December 2019 Ms. Cashman of Work Focus Australia reported Mr. Young had returned to work four hours per day five days a week during the mornings. He reduced his hours in the afternoon due to pain symptoms and swelling of his knee. She reported his work was largely overseeing jobs. He was pursuing hydrotherapy and swimming. His sleep quality and mood had improved. She recommended a self-directed exercise plan and reported he continue to attend physiotherapy and psychological therapy.
  8. On 19 March 2020 Dr. Herald reported Mr. Young had wasting of his vastus medialis oblique (VMO) muscles and an effusion in his knee joint. The cortisone injection to his left thumb was wearing off. Dr. Herald noted the claimant’s case had been closed. He suggested he proceed with the surgery to the right shoulder.
  9. An MRI of the right knee on 18 May 2020 reported fraying of the medial meniscus and noted the PCL reconstruction with ganglionic change within the graft and a low-grade partial thickness tear. There was a large joint effusion.
  10. On 26 May 2020 Dr. Herald reported the right knee was stable but with a large effusion. He reported intermittent swelling in his knee particularly with work. He reported a full range of motion of the shoulder and grade 4 power of the rotator muscles with mildly positive impingement signs. He had a good range of motion in the thumb with mild irritability. Dr. Herald concluded the thumb was developing secondary osteoarthritis. He recommended intra-articular injections of cortisone and local anaesthetic to the knee and left thumb.
  11. On 7 July 2020 Dr. Herald reported Mr. Young was one week post cortisone injection. He had an effusion in his right knee. He had a positive belly press test but near full range of motion of the right shoulder. He reported the MRI scan showed a subscapularis high-grade near full-thickness tear with retraction and muscle atrophy. Whilst the supraspinatus and infraspinatus tears appeared to have healed on the MRI scan the subscapularis tear had not and he recommended arthroscopic rotator cuff repair surgery.
  12. On 11 August 2020 Dr. Herald reported Mr. Young had decided to progress with the arthroscopic rotator cuff repair surgery. This did not occur.
  13. Mr. Young last attended Dr. Tringali on 29 December 2020 when he reported cervical pain, interscapular pain, back pain, right leg pain and right knee pain. Until that last consultation Mr. Young consulted Dr. Tringali regularly in respect of his accident created injuries.

Medico-legal reports

Report of Dr. Michael Hong, consultant psychiatrist

  1. Dr. Hong was asked to provide an early specialist opinion report by the insurer. He provided a report dated 9 August 2019 following a discussion with Dr. Tringali. At that stage Mr. Young was unfit for work but was observed to be highly motivated.
  2. He was unable to provide a prognosis but recommended Mr. Young have six sessions of psychologist management, noting his history of brain tumour and a recent relationship breakdown rendered him susceptible to the psychological effects of the accident.

Report of Dr. Peter Conrad, general surgeon

  1. Dr. Conrad assessed the claimant on 5 January 2021 and provided a report dated 29 April 2022 at the request of the claimant’s lawyers.
  2. He reported at the time of the accident the claimant worked full time as a builder project manager. He reported he was totally off work for three months and then return to light duties 20 hours per week until he underwent knee surgery on 4 October 2019. Following the surgery, he was off work for six weeks before returning on light duties which he continued to do. He reported Mr. Young worked about 20 hours per week, mainly office or building inspection work. He tried not to lift anything and had difficulties with ladders or working at heights.
  3. Dr. Conrad reported Mr. Young continued to have pain in his neck radiating down the right arm. He had pain and restriction of movement of the right shoulder and pain and restriction of the movement of the left thumb. He had difficulty gripping with his left hand. He also had ongoing back pain radiating down both legs. He experienced pain and stiffness in the right knee, which is aggravated by standing, walking, going up and down stairs, crouching and kneeling. He also had occasional stiffness in the right ankle. Dr. Conrad reported Mr. Young took tablets for pain and maintained an exercise program.
  4. Dr. Conrad recommended Mr. Young undergo arthroscopy surgery to his right shoulder.
  5. Dr. Conrad opined Mr. Young would not be able to work as a full-time building supervisor but noted he was well motivated and considered he could maintain working 20 hours per week of light duties. He recommended a lifting limit of 5kg.
  6. Dr. Conrad assessed a 22% WPI.

Report of Dr. Christopher Canaris, consultant psychiatrist

  1. Dr. Canaris assessed the claimant and provided a report dated 5 October 2022.
  2. Dr. Canaris reported Mr. Young becomes distressed when he sees the footage of the accident and when he drives past the scene. He no longer rides his bike. He reported Mr. Young began to sob when he recounted what he can no longer do, including being unable to run, being unable to swim without pain, and finding it harder to walk. He described sleeping as hard, asserting he had not had a full night’s sleep since the accident because he cannot lay in one position for too long and is basically uncomfortable in bed.
  3. Mr. Young reported his mood as “anxious” and “aggressive” and he had moments of sadness when he felt like it was not worth living. Whilst he is less sociable he still goes out once a week with his partner to the local hotel. He is irritable, impatient, and cranky, he finds it hard to get motivated and his concentration is poor.
  4. Mr. Young described himself as a fitness fanatic and said he had been extremely well before the accident. He is a lifelong vegetarian but no longer enjoys his meals.
  5. He had undergone only six sessions of treatment with a psychologist but was unsure whether it had been helpful.
  6. Dr. Canaris reported the claimant was off work for three to six months because of his physical injuries. He now averages 20 to 25 hours per week and cannot do what he used to do. He stated he starts to get “pretty lethargic around lunchtime because I’m starting to drag myself around”.
  7. Dr. Canaris described the claimant as a man of high determination who had set great store by being fit and independent and enjoyed solo pursuits such as riding his motorbike or surfing. Dr. Canaris reported at interview the claimant’s affect was depressed and noted he was at times tearful as he described the accident and sequelae.
  8. Dr. Canaris diagnosed post-traumatic stress disorder. He concluded the claimant’s high levels of anxiety were likely to persist while his physical symptoms and limitations serve as a reminder of the accident whilst his psychological injuries may undermine his capacity to cope with his physical problems. Dr. Canaris assessed a 6% WPI.

Dr. Raymond Wallace, orthopaedic surgeon

  1. Dr. Wallace assessed the claimant for the insurer and provided a report dated 6 September 2023. He reported the claimant suffered from asthma and had a pituitary tumour excised in 2018. He was taking cholesterol-lowering medication.
  2. At the time of his examination Mr. Young was living in Five Dock with his girlfriend.
  3. Dr. Wallace reported the following complaints:
  • constant aching at the right shoulder, worse with activity and at night;
  • intermittent paraesthesia at his right hand;
  • weakness at his right arm;
  • reduced range of movement in adduction at the right shoulder;
  • constant aching pain in the region of the 1st metacarpal bone of the left thumb; worse with sudden movements, leaning on his left hand or getting up from a chair;
  • intermittent paraesthesia globally about the left hand;
  • weakness of grip at the left hand;
  • stiffness at the left thumb;
  • pain in the lumbar spine; worse on forward flexion, washing up or sneezing;
  • stiffness in the lumbar spine;
  • constant aching pain about the joint of the right knee; worse with running, bending, squatting, crouching or climbing a ladder;
  • intermittent swelling and locking at the knee joint;
  • stiffness of the knee joint;
  • sleep disturbed by pain;
  • anxiety associated with driving or riding a motorbike, and
  • inability to resume running or playing tennis.
  1. Dr. Wallace reported Mr. Young was certified unfit for work for six months and then returned to work on part-time light duties. He reported he was continuing to work 20 to 30 hours per week. He avoids heavy lifting or ladder work where possible.
  2. Dr. Wallace diagnosed the following injuries as a result of the accident:
  • aggravation of pre-existing degenerative rotator cuff pathology of the right shoulder;
  • fracture of the right scapula;
  • ligamentous strain of the carpometacarpal joint of the left thumb;
  • musculoligamentous strain of the lumbar spine;
  • aggravation of pre-existing multilevel degenerative lumbar spondylosis, and
  • posterior cruciate ligament rupture of the right knee.

Dr. Wallace opined Mr. Young was unfit to return to his full pre-injury duties as a project manager/builder. However, he considered he was fit for full-time light duties. In respect of the claimant’s work restrictions, he stated:

  1. “He would not be fit for activities requiring repetitive overhead lifting at his right shoulder, prolonged use of tools at his left hand, repetitive bending or twisting movements at his lumbar spine, sitting or standing in one position for prolonged periods, repetitive bending, squatting, crouching or kneeling at his right knee or prolonged periods of working in confined spaces, at heights or on ladders”.
  2. During the assessment conference Ms. Allan submitted that his opinion about capacity for work was on the basis Dr. Wallace believed the claimant’s pre-injury occupation was as a builder. Whilst that may be the case I am satisfied that these restrictions are relevant to the claimant’s capacity for work generally and particularly in regard to the assistance he was able to provide to tradespersons on site pre-accident where he would often undertake labouring tasks.
  3. Dr. Wallace assessed an 11% WPI.

THE INJURY AND DISABILITY SUSTAINED BY THE CLAIMANT

  1. I find Mr. Young suffered the following injuries caused by the accident:
  • fracture of the right scapula;
  • injury to the right foot;
  • fracture of the right humerus;
  • a right shoulder subscapularis tear with split and a disclosed component of biceps tendon;
  • a complete tear of the PCL and a moderate grade tear of the LCL and a lateral meniscal contusion;
  • a whiplash injury to the cervical spine;
  • a strain of the lumbar spine;
  • a fracture of the first metacarpal base of the left thumb;
  • lacerations to the right knee, and
  • post-traumatic stress disorder.
  1. I am satisfied as a result of these injuries Mr. Young’s capacity for employment is impaired in that he:
  • has pain and restriction of movement of the right shoulder which impairs his ability to lift, push, pull and carry on construction sites;
  • has pain and stiffness in the right knee which means he cannot squat, he finds it difficult to kneel or crouch and he has difficulty in standing and walking,
  • has difficulty going up and down stairs and finds climbing ladders difficult;
  • has pain and stiffness in his left thumb which is aggravated when he puts pressure on his left hand;
  • has difficulty gripping with his left hand;
  • has pain in the lumbar spine aggravated by forward flexion;
  • has difficulty sleeping and by lunchtime he becomes lethargic;
  • lacks motivation and his concentration is poor, and
  • suffers anxiety and has become frightened by loud noises.
  1. Accepting the claimant as a truthful witness I accept his evidence that he is no longer physically able to actively assist tradesmen on site and is only capable of working 50% of his pre-injury hours. I also find the claimant has sustained an impairment in his earning capacity generally in that he is no longer fit to undertake manual labouring tasks or landscape construction works.

THE ASSESSMENT OF DAMAGES

Non-economic loss

  1. 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.
  2. The claimant submits an appropriate allowance for non-economic loss would be $300,000 whilst the insurer submits an appropriate figure would be $175,000.
  3. The insurer submits this is not a matter where the claimant’s quality of life has been impacted or continues to be impacted by ongoing and consistent receipt of medical treatment, noting the claimant has not received any formal treatment since December 2020 and has declined to undergo the shoulder surgery proposed by Dr. Herald. However, it is clear from the claimant’s evidence that his access to treatment has been impacted by financial considerations where it is not just the cost of the surgery he would incur but a period of incapacity for work. Where the claimant is self-employed he does not have the safety net of paid sick leave.
  4. The insurer also submits the claimant is not suffering any significant employment incapacity or restriction in his daily activities. I disagree.
  5. Whilst he was not expansive in his description of his ongoing disabilities I am satisfied that Mr. Young continues to experience the physical complaints recorded by Dr. Wallace and referred to above. Whilst there were initial complaints relating to the cervical spine it seems that condition has largely resolved as it was not mentioned as causative of ongoing pain or discomfort at the time of the assessment conference or when the claimant was assessed by Dr. Wallace.
  6. The claimant stated his knee swells every day, he can no longer squat and he avoids stairs whenever he can. He also experiences pain and stiffness in his lumbar spine, and pain and restriction of movement of the right shoulder. He can no longer lift like he used to do. Daily he experiences a constant aching pain of his left thumb, which is aggravated by the use of the left hand. He also has a weakened grip in the left hand. He is already developing post-traumatic arthritis in the left thumb. Every day activities both at home and work exacerbate the pain experienced by the claimant, a constant reminder of the accident and a likely factor in the perpetuation of his psychological symptoms.
  7. Whilst the claimant has returned to work he has been unable to return to his pre-injury hours or duties. He now works on average 20 to 25 hours per week and is restricted from undertaking many of the tasks he undertook pre-accident as a self-employed contractor. The claimant is no longer able to undertake heavier building tasks on site, is no longer able to assist tradesmen or to undertake landscaping work.
  8. In addition to these activities of daily living the claimant can no longer run, surf and nor can he ride his motorbike. I accept the opinion of Dr. Canaris that these solo pursuits were part of the claimant’s persona as a man who set great store on being fit and independent and that sense of self has now been denied to the claimant due to the impact of his injuries.
  9. Having regard to the oral evidence of the claimant I find he continues to suffer from the symptoms of post-traumatic stress disorder including anxiety, a tendency to be aggressive and moments of sadness when he feels life is not worth living. I accept he is no longer comfortable in public and avoids going out in groups although he is still able to go to the pub once a week with his partner. I accept he is frightened of loud noises and has become introverted. He experiences guilt as a result of the injury sustained by his partner in the accident. I was able to observe the claimant’s psychological vulnerability myself during the course of the assessment. I find he is a man who has been diminished by the impact of the accident on his life.
  10. The current maximum payable for non-economic loss is $620,000.
  11. The claimant is now 59 years of age with a life expectancy of 25 years. The accident occurred over five years ago and there is no suggestion of any likely improvement in the claimant’s condition. In the circumstances, I consider $300,000 to be an appropriate assessment of damages for non-economic loss.

Economic loss

  1. Prior to the accident Mr. Young, as the sole director of Habitat, asserts he worked at least 40 hours per week in the landscape and construction industry.
  2. There is an issue about the claimant’s absences from work following the accident. Certificates of capacity/certificates of fitness show the following:
  • 28 April 2019 to 28 June 2019 – no capacity for work;
  • 29 June 2019 to 29 July 2019 – fit for four hours a day five days a week;
  • 29 July 2019 to 29 September 2019 – fit for four hours a day five days a week, and
  • 30 September 2019 to 24 November 2019 – no capacity for work.
  1. On 12 August 2019 Mr. Gullotta, chiropractor, reported the claimant’s current capacity as “no duties”, on 13 September 2019 Ms. Cashman of WorkFocus reported Mr. Young was not fit to work, and on 2 October 2019 Ms. Popovic, psychologist reported Mr. Young was not working. The claimant was unfit for work by reason of the surgery to his right knee on 3 October 2019. By 17 December 2019 Ms. Cashman reported Mr. Young had returned to work four hours per day five days a week.
  2. Notwithstanding the certifications by the claimant’s general practitioner, I rely on the records of Mr. Gullotta, Ms. Cashman and Ms. Popovic to find that Mr. Young was unfit for work by reasons of injury caused by the accident from 28 April 2019 until 13 December 2019 and in all likelihood returned to work four hours a day five days a week on or about 1 December 2019.
  3. A more difficult question is what the claimant’s pre-injury earnings were and whether there has been any loss caused by the accident.
  4. In his Schedule of Damages dated 13 February 2024, the claimant brings a claim in the sum of $278,300, comprised of a loss of $1,100 net per week from the date of the subject accident to date.
  5. The claimant sought to rely on a letter from Trent Bailey of ITP Accounting Professionals dated 16 March 2023 who suggested the loss of sales turnover of Habitat in the 2019 financial year (FY) compared to the 2018 FY supported a loss of $1,100 net per week. The insurer objected to the admission of this letter on the basis it is not clear Mr. Bailey is an accountant. Whilst Mr. Young understood Mr. Bailey had handled his tax affairs he was not the signatory on the taxation returns. I indicated I did not propose to give the letter any weight where Mr. Bailey suggested incorrectly that loss of income should be assessed solely by reference to the reduction in sales turnover of the company since the accident compared to the 2018 FY.
  6. The insurer submits the claim for $1,100 net per week is inconsistent with the Application for personal injury benefits and the claimant’s income taxation returns.
  7. Mr. Young was questioned about the Application for personal injury benefits dated 13 May 2019 where he disclosed pre-injury earnings of $900 net per week. He agreed the document bore his signature but could not otherwise recall completing the form and stated the handwriting was not his. He suggested a gentleman came to his house and may have filled out that form.
  8. The insurer relies upon an accounting report of Furzer Crestani dated 11 December 2023.
  9. The claimant’s individual tax returns disclose the following:

FY ending 30 June

Gross income

Net income

Net average weekly earnings

2015

$20,000

$20,000

$384.62

2016

$32,748

$32,748

$629.77

2017

$26,752

$25,504

$490.46

2018

$33,000

$30,100

$578.85

2019

$20,000

$20,000

$465.12*

2020

$53,800

$43,343

$1,444.76**

2021

$60,141

$45,985

$884.33

2022

$64,319

$51,188

$984.38

*Accepting the claimant only worked until 28 April 2019 the net average earnings in the 2019 year are calculated on the basis the claimant worked 43 weeks in that financial year.

**Accepting the claimant did not recommence work until December 2019 the net average earnings in the 2020 year are calculated on the basis the claimant worked 30 weeks in that financial year.

  1. The insurer submits that it is apparent from the records that the claimant’s net weekly earnings in the 2019 FY were less than the earnings in the 2018 FY.
  2. The company tax returns of Habitat disclose the following:

FY ending 30 June

Gross annual income

Expenses

Net annual profit (less expenses but before tax)

Net annual profit (after tax)

Net average weekly business earnings

2015

$168,211

$172,570

$4,359 (L)

Nil

Nil

2016

$165,624

$161,265

$4,359

$4,359

$83.83

2017

$157,270

$157,270

Nil

Nil

Nil

2018

$213,426

$212,157

$1,269

$920.03

$17.69

2019

$122,247

$123,137

$890 (L)

Nil

Nil

2020

$174,914

$158,597

$16,317

$14,824.58

$285.09

2021

$150,113

$139,198

$10,915

$10,677.10

$205.33

2022

$154,239

$136,295

$17,944

$17,944

$345.08

2023

$144,481

$137,685

$6,796

$6,796

$130.69

  1. The insurer submits following the accident it appears the claimant’s company underwent a “change in the nature of the business undertaken” as it ceased to derive Sale of Product Income after the accident year, that the is the 2019 FY. When questioned at the assessment conference the claimant was unsure what Sale of Product referred to but suggested it might have been plant sales and garden materials, noting that he ceased undertaking gardening following the accident.
  1. However, on further review of the company tax returns it is apparent that equal wages were paid to the claimant’s then spouse Jane by way of income splitting in the 2015, 2016, 2017, and 2018 FY. The payment of wages to Jane ceased with the breakdown of the claimant’s marriage and in the 2019, 2020, 2021, 2022 and 2023 FY wages are only shown as paid to the claimant.
  1. In Husher v Husher 9 (1999) 197 CLR 138 the High Court found the plaintiff was entitled to recover the total profits of the partnership as being representative of his earning capacity. I am satisfied based on the evidence of Mr Young that it was his skill and labour which generated the income of the business and that he was in effect a sole tradesman with no employees. In accordance with Husher v Husher damages are to be assessed with reference to the full value of the claimant’s earning capacity, not his taxable income.
  1. The following table shows the income the claimant would have earned if there had been no income splitting with his spouse Jane in the financial years 2015, 2016, 2017 and 2018:

FY ending 30 June

Gross income

Net income

Net average weekly earnings

2015

$40,000

$40,000

$769.23

2016

$65,496

$65,496

$1,259.54

2017

$53,504

$51,008

$980.92

2018

$66,000

$60,200

$1,157.69

*Accepting the claimant only worked until 28 April 2019 the net average earnings in the 2019 year are calculated on the basis the claimant worked 43 weeks in that financial year.

**Accepting the claimant did not recommence work until December 2019 the net average earnings in the 2020 year are calculated on the basis the claimant worked 30 weeks in that financial year

170.

Mr Young stated an increase in his prices explained the increase in business profits since the accident even though he has only worked an average of 20 hours per week since the accident.

171.

I propose to assess past economic loss for the period Mr Young was unfit for work at an average of the claimant’s net average weekly earnings for the 2015, 2016, 2017, 2018 and 2019 financial years in the sum of $769.78 net per week.

172.

I calculate past economic loss for the period 28 April 2019 to 1 December 2019, a total of 31 weeks at $769.78 net per week in the total sum of $23,863.30.

173.

In cases such as Medlin v State Government Insurance Commission10 and Husher v Husher11 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.

174.

In NSW v Moss12 at [87] Heydon JA stated: “In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.”

175.

Whilst the claimant’s personal and business tax returns do not disclose any quantifiable monetary loss that does not mean there is no economic loss. Where the claimant has only been fi

t to work at 50% of his pre-injury capacity there is clearly a diminution in his earning capacity and I am satisfied uninjured the gross income of the business since the accident would have been greater than it currently is.

176.

However, there is a lack of evidence to enable me to establish the extent of that loss. Mr Young’s business model was predicated on the use of tradespersons. Whilst he sourced and managed those tradespersons as project manager he did not facilitate payment of their invoices through his business but arranged for each tradesperson to invoice the project owner directly. There are no records available to show an increase in the retention of tradespersons or general labourers to undertake work which Mr Young may himself have undertaken uninjured. There any no records to evidence the hours worked by Mr Young on individual projects and nor are there are any records available to verify the amount by which his rates have increased since December 2019. Mr Young said there was work he let go but again there is no evidence to verify the work which Mr Young has declined post-accident. Having regard to the incomplete evidence I find I have little choice other than to include the period December 2019 to date in the buffer I propose to assess for future economic loss.

  1. 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.
  1. I am satisfied uninjured the claimant would have continued to operate his business on a full time basis as a project manager in addition to undertaking manual labouring tasks, handyman type tasks and landscape construction works. The accident has caused a change in the claimant’s most likely future circumstances in that he is no longer fit to work full time and nor is he capable of undertaking manual labouring tasks or landscape construction works. I am satisfied uninjured the claimant’s impairment has and will continue to impact the profits of his business and as the sole director and employee of that business, the claimant’s likely earnings. I also take into account the likely loss of income the claimant will experience if he proceeds with recommended shoulder surgery.
  1. In Penrith City Council v Parks [2004] NSWCA 201 the Court of Appeal concluded that it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine.
  1. The claimant submits an appropriate buffer for the future impairment of the claimant’s earning capacity is $300,000 whilst the insurer submits it would be no more than $25,000.
  1. Mr Young is 59 year of age and asserts uninured he would have worked until age 70 years. Notwithstanding the vissisitudes of life I accept given Mr Young’s healthy lifestyle and apparent lack of financial reserves that he would have worked until age 70 had the accident not occurred.

Given my findings as to the impact of his injuries upon his earning capacity and where I consider there has been economic loss, albeit difficult to quantify, I consider it appropriate to award a buffer of $150,000 for both the past and future impairment of the claimant’s earning capacity in addition to the award of damages for the period 28 April 2019 to 1 December 2019

  1. I assess the claim as follows on the findings set out above:

Non-economic loss $300,000

Past loss of earnings $23,863.30

Future loss of earnings $150,000

Tax on weekly payments $7,559

Damages assessed $481,422.30

Reduction for contributory Negligence $120,355.58

TOTAL DAMAGES ASSESSED $361,066.73

  1. The claimant’s economic losses are to be reduced by and the insurer is to have credit for statutory payments made pursuant to s 3.40 of the MAI Act.

COSTS AND DISBURSEMENTS

  1. I refer to the claimant’s schedule of costs and disbursements.
  1. A claim is made for five conferences. The insurer submits three is appropriate. However, having regard to the dispute as to both liability and damages I propose to allow for four conferences.
  1. A claim is made for the cost of the report of Grant Johnston in the sum of $6,556.50 plus GST. The insurer submits the claim is excessive and where the report has limited forensic analysis proposes I allow $4,000. The report included detailed analysis of the dashcam footage which was critical in the opinion I reached as to contributory negligence. I note the fee is unregulated and propose to allow it in full.
  1. I otherwise allow medical report fees in accordance with the schedule fee including an allowance as agreed by the insurer for the report of Dr Conrad.
  1. Accordingly, I assess the claimant’s costs and disbursements in accordance with the attached Damages and Costs Calculator in the sum of $49,510.71.

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The amount varies based on several factors unique to each case. It's recommended to consult a personal injury lawyer for a more personalised assessment.
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