On 24 November 2023 The Personal Injury Commission released its decision in Kouchekisheikhani v Allianz Australia Insurance Limited  NSWPIC 597.
The Claimant alleges he was standing behind a parked car and that the Insured vehicle ran over his foot.
The Insurer alleges the Claimant walked into the path of the Insured vehicle.
The Insurer admitted liability and alleged contributory negligence of 60% because:
The Claimant argued that there should be no reduction for contributory negligence.
The matter proceeded to assessment before the Commission for assessment of liability and damages.
The PIC Member was called upon to determine two issues:
The parties accepted the Insured driver was travelling at a very low speed.
The Member preferred the evidence of the Insured driver and another witness. The Member accepted that the Claimant crossed in front of the Insured vehicle, was holding shopping bags in his hands and was looking in the opposite direction at the time the accident occurred.
The Member found the Insured driver was more at fault than the Claimant. However, the fault of the Claimant was significant.
The Member determined the just and equitable deduction for contributory negligence was 40%.
Throughout his claim, the Claimant provided four differing versions of how much he earned per month. Given the significant variations in the estimates provided, the Member found it was not possible to accept any of them as a reliable assessment of the Claimant’s earnings.
The Claimant argued that the tax return was a true reflection of his earnings.
The Member determined the amount of total sales in the tax return was less than the total amount of the invoices relied upon by the Claimant and therefore the tax return was not consistent with the evidence given by the Claimant.
The Member could not accept that the tax return was a true reflection of the Claimant’s earnings.
The Member accepted that the Claimant had a much greater capacity for work than he asserted and a calculated amount for future economic loss could not be made. The Member allowed a buffer of $100,000 on the assumption that the Claimant could, within time, return to his pre-accident hours.
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.
Through its recent decision in Citywide Service Solutions Pty Ltd v Rosata; Kabbout v Crown Melbourne Ltd  VSCA 281, the Victorian Court of Appeal has restored what had been a tacit understanding in personal injury litigation.
The decision in Alldinger v Du Ranot  NSWCA 271 demonstrates that actual business earnings that are at significant odds with declared business earnings, are not always an accurate depiction of potential future earnings.