AAI Limited t/as AAMI v Bell

[2023] NSWPIC 487

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

AAI Limited t/as AAMI v Bell [2023] NSWPIC 487

CLAIMANT:

Gordon Bell

INSURER:

AAMI

MEMBER:

David Ford

DATE OF DECISION:

19 September 2023

CATCHWORDS:

MOTOR ACCIDENTS -  Motor Accident Injuries Act 2017; claim for damages for mental harm; claimant’s partner fatally injured in a motor vehicle accident; claimant suffers from major depressive disorder with prominent disorder; claimant is a 69-year-old male retiree entitled to damages for non-economic loss only; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b)

DETERMINATIONS MADE:

CERTIFICATE

DETERMINATIONS MADE

1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017.

2.        The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines.

STATEMENT OF REASONS

INTRODUCTION

1. This application is a claim for damages for mental harm sustained by Gordon Bell (the claimant) arising from a motor vehicle accident on 4 October 2021, which resulted in the death of his partner. The claimant has made a claim for damages for non-economic loss only.

2. The insurer made arrangements for him to be examined by Dr Ashwinder Anand, psychiatrist, and I refer his report dated 19 July 2023. He has provided a comprehensive report and taken an extensive history regarding the claimant's mental state. He recorded, since the death of his partner, the claimant has lost significant weight, from 80kg to 66kg. He suffers from poor concentration and fatigue. He diagnosed the claimant is suffering from a major depressive disorder with prominent anxiety. The claimant now has depressed mood anger issues, irritability, low frustration tolerance and poor sleep, punctuated by vivid dreams, loss of appetite, poor concentration and fatigue. He denied any suicidal ideations other than having some passive self-harm thoughts. He believed the claimant 's condition had stabilised. He assessed the claimant as having a whole person impairment of 15%.

3. The claimant was born 1954 and is presently 69 years of age. He is retired. I accept the death of his partner has had a significant and lasting effect upon his mental health.

4. The insurer conceded the claimant is entitled to damages. The claimant has a claim for non-economic loss only. The insurer has proposed a settlement offer of $300,000.

5. The claimant advised me he wishes to accept the proposed settlement.

6. I consider this settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.

7. The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act). I have decided to approve the proposed settlement as submitted in this application. 

JURISDICTION OF THE PERSONAL INJURY COMMISSION

1. The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.

2. I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14 (D) empowers me to determine those proceedings.

3. Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.

4. The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.

5. The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.

CONCLUSION

1. I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, taking into account the nature and extent of the claim.

2. I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.

3. I am satisfied the claimant understands the binding nature of the settlement and she will be precluded from making a further claim for damages arising out of the accident.

4. I am satisfied the claimant is willing to accept the proposed settlement.

5. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.

RELEVANT LAW

1. Section 6.23 (2) (3) of the MAI Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Guidelines.

2. Clause 7.38 of the Guidelines states I must be satisfied as to the following:

   (a)    the proposed settlement is just, fair, and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by a, taking into the account the nature and extent of the claim and taking into account any proposed reductions or deductions in the proposed settlement, and

   (b)    the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement. 

PRELIMINARY CONFERENCE ON 12 SEPTEMBER 2023

1. The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 12 September 2023. The claimant participated in person and the insurer was represented by Rachael Miles.

2. The proposed deed of release was lodged on the portal together with the application for approval of the settlement.

SHOULD I APPROVE THE SETTLEMENT

1. I am satisfied it is appropriate in this matter to assess damages in the sum of $300,000.

2. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.