CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Bairagi v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 87	
		
Claimant:	Biplab Bairagi	
		
insurer:	Insurance Australia Limited t/as NRMA Insurance	
		
Member:	Hugh Macken	
		
DATE OF DECISION:	2 March 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; non-economic loss; residual earning capacity; secondary psychological injury; entitlement to disbursements; Held – the amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $45,082.52 inclusive of GST. 	
determinations made:	CERTIFICATE OF DETERMINATION
Issued under section 94 (5) of the Motor Accidents Compensation Act 1999
Assessment of Claim for Damages made in accordance with section 94 of the Act
1.	I assess the Claimant’s legal costs and disbursements in accordance with s 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet in the sum of $45,082.52.

2.	On the issue of liability for the claim, 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. 

3.	Under sub-sections 94 (3) and 94 (4) of the Motor Accidents Compensation Act 1999 (the Act), I specify the amount of damages for this claim as $1,051,978.53.

4.	The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $45,082.52       inclusive of GST. 	

STATEMENT OF REASONS
introduction
1.	The claimant is a 44 year old man who was seriously injured in a motor vehicle accident which occurred on 27 December 2018. He was riding his motorcycle when he was struck by the insured’s vehicle on his left side and took the blow primarily on his left foot. He suffered very significant injuries to his left foot and leg which ultimately required a fusion of the bones in his left foot. He has also suffered significant psychological consequence of the accident.
2.	The claimant was working two jobs at the time of the accident as an assistant manager at Star City Casino and working at Airport Link as a customer service host.
3.	The parties have agreed in respect to the calculation of past economic loss in the sum of $278,864 although it is submitted on the part of the claimant that there should be an additional buffer allowed in respect to loss of promotional or vocational earnings or losses associated with foregone pay increases.
4.	The insurer has made payments totalling $268,385.47 in respect to the claimant’s past economic loss.
5.	Accordingly, the matters for assessment include non-economic loss, whether an additional buffer ought to be allowed in respect to past economic loss and future economic loss.
6.	Noting these matters it is appropriate to briefly outline the medical material as it touches on all aspect of the matters requiring assessment.
Medical material
7.	The claimant was a fit and active man prior to sustaining his injury. He was married with 2 young children. He worked in physically arduous occupations. He would ride a motorcycle, played sports, was physically active and generally took care of himself. Following the accident, he was admitted to hospital for 5 days. He had an undisplaced fracture of his left knee and numerous fractures to his left foot.
8.	As a consequence of the left foot fractures he underwent a fusion to his first and second tarsometatarsal joints in March 2020. Whilst his other injuries generally improved the injury he sustained to his left foot troubles him greatly.
9.	The report of Dr A Chara dated 29/5/2021 notes the significant restrictions in which he is capable of working. He states:
“I believe he is capable of working 8 hours a day, 3 days a week of non-consecutive days”
He goes on to note lifting, walking and standing restrictions.
10.	This seems to be a consensus position although the report of Dr G. Bruce dated 2 April 2022 to the insurer notes:
“He is only able to spend short periods of time walking or standing because of the injury to his left foot. He injuries to his left knee and left wrist also restrict his work but the left foot is the main restricting injury.”
11.	He goes on to state: 
“The pain is always present but is particularly noticeable when he is weight bearing or physically active.”
12.	And further:
“His earning capacity is going to be reduced for the term of his working life. The fusion of the foot will prevent him from carrying out physical work as he has been performing in the past prior to the accident. The accident has resulted in considerable restriction of his physical ability and his ability to carry out active employment.”
13.	The report of Dr D. Dixon dated 21 April 2022 is even more fulsome in respect to the physical injuries suffered by the claimant. He notes post-traumatic stiffness of the left ankle, tear to the triangular ligament of the left wrist, post-traumatic lateral epicondylitis of the left elbow, paralumbar pain with lumbar stiffness, reliance on analgesia and anti-inflammatories as well as PST with reliance on anti-depressants.
14.	For a man as active as the claimant was prior to his injuries, it is not greatly surprising that the very significant injuries to his left foot, and the restrictions they impose on his lifestyle, have had a very adverse effect on his psychological condition.
15.	The report to the insurer of Dr G. Vickery dated 21 February 2023 identifies post-traumatic stress disorder and sematic symptom disorder with pre-dominant persistent pain. The report notes that the claimant “can forget tasks and has become withdrawn and not wanting to talk to people which he needs to do in his job”. It goes on to state:
“Mr Bairagi’s ability to undertake pre-accident duties is restricted by a psychological injury arising from the accident.”
16.	The claimant states and I accept, that the psychological impacts of the accident have devastated his life. He states that he suffers from symptoms of depression and anxiety and continues to attend a psychologist, Dr David Greene, who provides him with strategies to assist in the management of his symptoms.
17.	I accept that the medical material supports the claimant’s contention that he is both physically and psychologically disabled as a consequence of the motor vehicle accident.
Non-economic loss
18.	The claimant submitted that non-economic loss ought to be allowed in the sum of $400,000. The insurer submitted a figure of $250,000 is an appropriate allowance for non-economic loss.
19.	I note that the claimant suffered significant physical and psychological injuries which have had an adverse effect on all aspects of his life and are likely to continue having an adverse effect. In these circumstances I assess the claimant’s non-economic loss in the sum of $320,000.
Past economic loss
20.	 The claimant submits that past economic loss ought to be allowed in the agreed figure together with a buffer of $100,000 to take into account loss of promotional and vocational opportunity. This would seemingly be on the basis of the claimant’s enrolment in a Master of Business Administration at Monash University in 2021.
21.	The claimant terminated his participation in this course after 2 weeks as he was unable to concentrate and trying to study exacerbated his anxiety.
22.	Were the claimant able to have completed this course in minimum time then it may well be that at about the time of the assessment conference he would have completed his MBA studies and being in a position to obtain other employment. In my view this does not support any contention that the claimant has suffered an additional past economic loss on the basis of a buffer, as his MBA course would only have been completed at about the time of the assessment conference in this matter.
23.	Additionally, on any view of the material the claimant does have a residual earning capacity, as he has demonstrated by his employment post-accident and his current work at the airport and accordingly any buffer needs to be considered in light of a partial incapacity for employment in the past not the total destruction of his capacity to work.
24.	I am not persuaded that the claimant has established an entitlement to a further buffer in respect to past economic loss. Accordingly, I allow past economic loss in the sum of $10,478.53 being the agreed calculation of past economic loss less past wages paid by the insurer.

Future economic loss
25.	The claimant submitted that future economic loss ought to be allowed on the basis that the claimant would have currently been earning in the order of $130,000 per annum and this figure would likely increase, in very short order, to $175,000. Accordingly, it was submitted future economic loss ought to be allowed in the sum of $1,555,400 on the basis of very significant increases in earnings and his current capacity for work ceasing in June 2023 and thereafter the claimant being considered to be totally incapacitated for work.
26.	With respect to the claimant there is limited support for this scenario. That is, a short sharp progression to total earnings of $175,000 nor do I accept the submission that the claimant will be incapable of working after June 2023.
27.	The claimant’s earning have been relatively high as a consequence of the significant hours he is prepared to put in to work each week. His gross earnings in 2013 were $96,000. These dropped to $77,000 in 2015 and, just at about the time of the accident were in the order of $94,000 per annum. That said, the assumptions underpinning the report that the claimant would inevitably and quickly move to senior food and beverage roles with his employer Star Casino and that he would always work far in excess of full-time hours (at 65% higher than ordinary full-time hours) are not supported by the evidence. His high earnings would seem to have been the result of long hours not a high hourly rate. He has not had an exponential increase in his hourly rate prior to the accident. Similarly, there is no evidence that had he continued in the work that he was doing from the date of the accident to date that his earnings would have significantly increased at all. Certainly, there is no evidence of an increase of $75,000 on earnings between 2021 and 2024.
28.	Further, the evidence does not support an assumption that his earnings would drop to zero in a few months’ time. At the assessment conference the claimant noted that following the surgery in 2020 he did return to work at Star Casino and was terminated in 2021.
29.	He has returned to work at Airport Link and currently works at Airport Link on reduced hours. That said, for periods since the accident he has been working up to 47 hours per week at both Star Casino and at the airport.
30.	As I have outlined above a calculation of future economic loss is a most inexact science. The claimant continues to receive treatment and will continue to receive treatment in respect to both physical and psychological injury. It is a reasonable assumption that the treatment is directed at improving his functioning. How much his functioning will improve is a matter of conjecture. It is clear that the claimant is quite pessimistic about his future at this time.
31.	The physical injuries prevent the claimant undertaking standing and walking for prolonged periods. He stated that even sitting down has problems in that he feels pain.
32.	It was asked of him if he could work more hours if it was a less stressful environment. He responded that he continues to feel “panicky.” 
33.	The report of Dr Gupta dated 17 November 2021 notes: 
“He tells me that he would consider returning in a very graduated fashion. I would be very happy to support this. Initially I feel returning at 3 days per week would be reasonable although he needs to be mindful that prolonged periods of standing may cause discomfort.”
34.	The report of Dr R. Rao dated 20 May 2019 states:
“He is progressing well and very keen to improve. It will take a few months at least for him to return to both his jobs as his pre-injury duties. Hopefully the progress will be good.”
35.	Whilst these reports are somewhat optimistic and not reflective of the claimant’s current status they do indicate that, irrespective of the claimant’s current pessimistic mood, that some further rehabilitation is likely. Accordingly, and noting the calculations made by the claimant in respect to past economic loss I consider that an appropriate manner to calculate future economic loss is that of a cushion to reflect his clearly diminished work capacity, his loss of promotional and vocational opportunities and the consequences of the time out of work force since the accident.
36.	Noting the claimant’s earnings were in the order of $1,500 per week I consider it appropriate to calculate future economic loss based on about the loss of earning capacity of a figure loosely reflective of between about 60% loss of earning capacity based on his pre-injury earnings. Noting the variations and increases since that time this is reflective of a loss of earnings of in the order of $900 per week with an allowance for about 23 years. This gives rise to a figure of about $650,000. To this figure ought to be added loss of employer superannuation contributions of about $71,500.
37.	It must be noted that he has always been a very highly motivated individual who has never shirked from hard work and long hours. That said, with a similar motivation it may well be that he may have been in that, but for his injuries, other more lucrative  employment opportunities may have come up although this is somewhat in the realm of conjecture.
38.	In all the circumstances I allow future economic loss, by way of a buffer for lost opportunities, reduction in earning capacity, loss of wages and loss of employer superannuation contributions in the sum of $721,500.
Assessment of Damages Summary
39.	Under Sub-section 94(1)(b) of the Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.

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

Non-Economic loss							$320,000.00

	Economic losses
•	Past loss of earnings (incl. superannuation and Fox v Wood)
After deduction of insurer payments of $268,385.47	$10,478.53
•	Future loss of earnings (incl. superannuation)	$721,500.00
	
Total of economic losses and non-economic loss	$1,051,978.53

Total Damages Assessed	$1,051,978.53

Conclusion
41.	I note the insurer contended that the claimant ought not be allowed any costs in respect to the economic loss report relied upon in this matter. That is, that it was based on assumptions which were not supported by the evidence. These assumptions cannot be examined until after the report has been obtained. In my view, this is not the test as to whether obtaining the report, and accordingly paying for the report, was reasonable in the circumstances. Noting the claimant’s work capacity, claims for loss of promotional and vocational opportunities in the food and beverage sector and the calculations associated with the loss of promotional opportunities generally, I consider it reasonable for the claimant have sought to obtain a report addressing the economic loss particularly noting the significant disabilities he suffered, the impact on his earning capacity in divergent fields and the need to consider all factors associated with future economic loss based on loss of promotional and vocational opportunities. I allow the cost of the report.
Costs and Disbursements
42.	I assess the Claimant’s legal costs and disbursements in accordance with s 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet in the sum of $45,082.52.

43.	On the issue of liability for the claim, 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. 

44.	Under sub-sections 94 (3) and 94 (4) of the Motor Accidents Compensation Act 1999 (the Act), I specify the amount of damages for this claim as $1,051,978.53.

45.	The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $45,082.52       inclusive of GST. 
Legislation
46.	In making my decision I have considered the following legislation and guidelines:
• Motor Accidents Compensation Act 1999 (NSW)
• Motor Accidents Compensation Regulation 2015
• Claims Assessment Guidelines/Personal Injury Commission Rules