AAI Limited t/as AAMI v Betland

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	AAI Limited t/as AAMI v Betland [2023] NSWPIC 90
Claimant:	Andrew Betland
insurer:	AAI Limited t/as AAMI
Member:	Anthony Scarcella
DATE OF DECISION:	6 March 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act2017; damages claim; approval of settlement under section 6.23; claimant self-represented; motor accident occurred when the motor vehicle claimant was driving was rear-ended by another vehicle whilst stationary at traffic lights; claimant sustained injuries to his cervical spine, an aggravation of pre-existing C5/6 disco vertebral pathology, a consequential ruptured a right pectoral muscle as part of his rehabilitation requiring surgical repair and post-traumatic stress disorder; satisfied that the claimant’s whole person impairment not greater than 10% and thereby not entitled to damages for non-economic loss; claimant worked as a full-time section team leader in a warehouse involving labour intensive duties; returned to restricted duties at reduced hours after five months and after a further eight months was certified fit to return to his pre-injury duties by his general practitioner; after a further 12 months the claimant was made redundant and not worked since; claimant currently aged 40 years; settlement offer included $315,000 for past loss of earnings and $185,000 by way of buffer for the future; Held – the proposed settlement in the sum of $500,000 is approved under section 6.23(2)(b).
determinations made:	Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $500,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

BACKGROUND

The claimant, Mr Andrew Ross Betland, is a 40-year-old man, who was involved in a motor accident on 8 April 2019 (the motor accident). The motor accident occurred when the motor vehicle he was driving was rear-ended by another vehicle whilst he was stationary at a set of traffic lights. He was aged 36 years at the time of the motor accident.
On 15 April 2019, Mr Betland made an application for personal injury benefits in respect of the motor accident against AAI Limited t/as AAMI (AAMI), being the relevant compulsory third party insurer of the vehicle at fault.[1]
[1] Application for damages settlement approval at pages 1-9.
On 26 March 2021, Mr Betland made an application for damages under common law against AAMI.[2]
[2] Application for damages settlement approval at pages 11-13.
On 28 June 2021, AAMI wholly admitted liability in respect of the claim for damages under common law.[3]
[3] Application for damages settlement approval at pages 14-15.
On or about 29 November 2022, AAMI proposed an offer of settlement to Mr Betland in the sum of $500,000 for past and future economic loss.
Mr Betland is not represented by an Australian legal practitioner. As Mr Betland is not legally represented, the proposed offer of settlement requires the approval of the Personal Injury Commission (the Commission).
On or about 7 December 2022, Mr Betland accepted AAMI’s offer of settlement and signed an Agreement of Release subject to the approval of the settlement by the Commission.[4]
[4] Application for damages settlement approval at pages 407-408.
On 15 December 2022, AAMI lodged an application for damages settlement approval (the Application) with the Motor Accidents Division of the Commission in respect of the proposed settlement amount.
On 16 January 2023, I presided over a preliminary conference arranged in this matter by the Commission. Ms Brooke Hill, solicitor appeared on behalf of AAMI with Mr Matthew Luxford of Suncorp. Mr Betland represented himself and was in the company of his support person, Ms Michelle McClen. I had the opportunity to question Mr Betland and Ms Hill. I reserved my decision in respect of the application for damages settlement approval.

DOCUMENTS CONSIDERED

The following documents were before the Commission and considered in making this determination:
(a) AAMI’s application for damages settlement approval dated
15 December 2022 and attached documents, and
(b) the reply to the application for damages settlement approval dated 15 December 2022.

CONSIDERATION AND REASONS

The legislation and legal principles

The 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.
As a member of the Motor Accidents Division of the Commission, cl 14A(1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident, cl 14D(3)(b) of the Personal Injury Commission Regulation 2020 provides that the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Guidelines (the Guidelines) continue to apply.
In making my decision I have considered the following legislation and guidelines:
(a) the Personal Injury Commission Act 2020;
(b) the Personal Injury Commission Rules 2021;
(c) the Personal Injury Commission Regulation 2020;
(d) the MAI Act, and
(e) the Guidelines.
Section 6.23 of the MAI Act states:
“6.23 Restrictions on settlement of claim for damages
(1)    (Repealed).
(2)    A claim for damages cannot be settled unless –
(a)the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b)the proposed settlement is approved by the Commission.
(3)    The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Regulation 95 of the Personal Injury Commission Rules states:
“95 Application for approval of Damages settlement
(1)If a claimant, who is not represented by an Australian legal practitioner, and an insurer have agreed to a proposed damages settlement, the insurer must lodge an application for approval of a damages settlement under section 6.23 of the MAI Act, on behalf of both the claimant and the insurer, within 7 days of reaching the agreement.
(2)(Repealed).”
Clause 7.37 of the Guidelines states:
“Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a)the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act [since repealed];
(b)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 the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement;
(c)the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(d)the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Clause 10 of the Commission’s Procedural Direction MA3 provides that the Application must include:
(a)    a deed of release;
(b)    the amount of the proposed damages settlement, including a breakdown of the amount allowed for each head of damage and how each amount allowed has been calculated;
(c)    the amount of any reductions in the proposed damages settlement including for contributory negligence or any other reduction, including brief reasons for that reduction and how any reductions have been calculated;
(d)    the amount of any advance payments that the insurer has made in advance of the settlement and the dates of those advance payments, including brief reasons explaining why those advanced payments were made, and
(e)    the evidence, documents and materials relevant to an assessment of the damages settlement including liability notices.
I am satisfied that the Application complied with cl 10 of the Commission’s Procedural Direction MA3.

The preliminary conference

At the preliminary conference on 16 January 2023, I explained to Mr Betland that, as he was not legally represented, the proposed settlement had to be approved by the Commission. Mr Betland acknowledged that he understood this to be the case.
I offered Ms Hill the opportunity to expand on the written submissions prepared by her. However, she advised that she had nothing further to add. A discussion ensued with Ms Hill in respect of the medical evidence.
Mr Betland advised that, prior to the motor accident, he was employed by Woolworths Group Limited (Woolworths) as a full-time section team leader in one of its warehouses where he was responsible for equipment and maintenance relating mainly to forklifts, loading machines and smaller cranes. Much of his work involved changing large batteries, performing general maintenance and test driving the vehicles. He worked in a temperature controlled environment (11°C). The work was labour-intensive with prolonged periods of standing, lifting and driving the machinery referred to above. The work also involved repeatedly turning his head to the left. When he returned to suitable duties at Woolworths, he was provided with a couple of team members to assist him. He confirmed that he has not worked since being retrenched by Woolworths on
28 May 2021. He does not know what sort of work he will do in the future. He stated that he was “not good with reading and writing”.
Mr Betland advised that he had not been in receipt of any Centrelink benefits.
Mr Betland confirmed that he understood that the agreed sum of $190,952.31 in weekly benefits received by him from AAMI would be deducted from the proposed $500,000 settlement.
I explained to Mr Betland that I had to be satisfied as to the appropriateness of the proposed settlement and in particular, that it is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by him, and taking into account any proposed reductions or deductions in the proposed settlement. Mr Betland acknowledged the above explanation.
I explained to Mr Betland that I had to be satisfied that he understands the binding nature and effect of the proposed settlement and that he will be precluded from making a further claim for damages arising out of the motor accident. Mr Betland acknowledged that he understood this to be the case and added that he has experienced personal issues since the motor accident, is very stressed and wants to move on with life. He confirmed that he wished to accept the settlement proposal.

The evidence

The unchallenged evidence is that, at the time of the motor accident, the motor vehicle Mr Betland was driving was rear-ended by another vehicle whilst he was stationary at a set of traffic lights.
Mr Betland was examined by NSW Ambulance paramedics at the scene of the motor accident. The paramedics reported that Mr Betland stated that he was rear-ended at traffic lights at about 50kmph and that his head had whipped back into the headrest at the time of the collision. Mr Betland reported to the paramedics that he developed pain in his left lateral neck and upper thoracic back, which he described as a burning muscular ache that became worse on movement and palpation. He complained of pain in the right trapezius and a mild pinch at about the T1. Mr Betland was given 1,000mg of paracetamol and 400mg of Ibuprofen with good effect. Mr Betland declined transport to hospital.[5]
[5] Application for damages settlement approval at pages 165-191.
In his application for personal injury benefits dated 15 April 2019, Mr Betland described the injuries caused by the motor accident as burning sensations down both sides of his neck to his upper and middle back; difficulty turning his neck without pain; and a constant pinching sensation down his spine near his lower back.[6]
[6] Application for damages settlement approval at pages 1-9.
Mr Betland first consulted Dr Thanh Phong Nguyen, general practitioner, of Montgomery Medical Practice in respect of the injuries he sustained in the motor accident on 10 April 2019 complaining of severe neck pain radiating into his right shoulder. Dr Nguyen referred Mr Betland for physiotherapy and an MRI scan of his cervical spine and provided him with a prescription for Mobic 15mg tablets.[7]
[7] Application for damages settlement approval at page 212.
On 15 April 2019, Mr Betland underwent an MRI scan of his cervical spine by Dr Patrick Luckey, radiologist. Dr Luckey concluded that there was no evidence of bony injury; moderate spondylotic change and facet arthropathy at C4/5; early spondylotic change, uncovertebral joint disease and dorsal disc bulge at C5/6; and no cervical cord or nerve root impingement.[8]
[8] Application for damages settlement approval at page 192.
On 17 April 2019, Mr Betland consulted Dr Nguyen, who issued him with a certificate of capacity that diagnosed the motor accident related injuries as neck pain/strain/back pain and certified him as having no work capacity from 17 April 2019 to 17 May 2019.[9]
[9] Application for damages settlement approval at pages 24-26.
On 9 May 2019, Mr Betland consulted Dr Nguyen complaining that he was still suffering from severe neck pain. Dr Nguyen issued a prescription for Mobic 15mg tablets and Norflex 100mg tablets and referred him for physiotherapy.[10]
[10] Application for damages settlement approval at page 212.
The unchallenged evidence is that, following the motor accident, Mr Betland underwent physiotherapy and exercise physiology treatment funded by AAMI.[11]
[11] Application for damages settlement approval at page 413 at [2.7].
On 23 July 2019, Mr Betland consulted Dr Nguyen, who reviewed him for the purposes of issuing a certificate of capacity and symptoms of depression/anxiety and post-traumatic stress disorder. Dr Nguyen referred Mr Betland to Ms Kim Dang, psychologist and issued a prescription for Mersyndol 450mg caplets.[12] The certificate of capacity diagnosed the motor accident related injuries as neck pain, cervical radiculopathy, C4 and C5/6 disc bulging to the left arm and post-traumatic stress disorder.[13]
[12] Application for damages settlement approval at page 211.
[13] Application for damages settlement approval at page 36.
On 7 August 2019, Mr Betland consulted Dr Nguyen, who recorded that he had reviewed Mr Betland’s chronic neck pain, post-traumatic stress disorder symptoms and symptoms of depression. Dr Nguyen issued a prescription for Lyrica 75mg capsules and referred him to Ms Dang.[14]
[14] Application for damages settlement approval at pages 210-211.
In a consultation with Dr Nguyen on 14 August 2019, Mr Betland complained of severe neck pain radiating into his left arm with tingling and pins and needles. By the time of this consultation, he had already consulted Dr Renata Bazina, neurosurgeon, on the referral of Dr Nguyen. Dr Bazina had recommended a cortisone injection.[15]
[15] Application for damages settlement approval at page 210.
In a report to Dr Nguyen dated 15 November 2019, Dr Bazina reported that Mr Betland had proceeded with a left C6 perineural block and that his headaches had now gone. Dr Bazina noted that Mr Betland’s range of movements had improved, the pins and needles in his left arm had lessened and they now were contained towards the shoulder and neck region. Mr Betland complained of persistent burning pain on flexion of his neck but that overall there was a positive recovery. Dr Bazina opined that it may take a further six to nine months for him to be pain free as Mr Betland had C5/6 discovertebral pathology which was aggravated by the motor accident. Dr Bazina recommended that he return to part-time duties, pacing himself and with a weight lifting restriction of less than 15kg with considerable periods of rest in between tasks.[16]
[16] Application for damages settlement approval at page 193.
In a report to Dr Nguyen dated 27 September 2019, Ms Dang noted that Mr Betland had reported struggling with his mental health since the motor accident, in that, he had become anxious and hypervigilant in a car and was more easily stressed. Mr Betland also reported being unable to work since the motor accident due to his injuries and that this had created major financial stress, which he had found difficult to manage. Ms Dang opined that Mr Betland’s presentation and reported symptoms appeared to be consistent with post-traumatic stress disorder and that such symptoms appeared to have had an onset following the motor accident, as he had reported no psychological difficulties prior to it. Ms Dang recommended that Mr Betland continue with psychological counselling to address his symptoms and improve his overall mental health.[17]
[17] Application for damages settlement approval at pages 194-195.
Mr Betland was assessed by Assessor Rowena Mobbs on 27 November 2019 and Assessor Doron Samuell on 19 November 2019 of the now defunct Dispute Resolution Service’s Medical Assessment Service for the purpose of determining a minor injury dispute.
On 3 December 2019, Assessor Samuell issued a certificate diagnosing Mr Betland with a non-minor injury in the form of post-traumatic stress disorder caused by the motor accident.[18]
[18] Application for damages settlement approval at pages 349-355.
On 20 December 2019, Assessor Mobbs issued a certificate diagnosing Mr Betland with a minor injury in the form of neck pain or neck pain with guarding with non-verifiable radicular complaints.[19]
[19] Application for damages settlement approval at pages 342-348.
In a report to Dr Nguyen dated 3 April 2020, Ms Dang noted that Mr Betland had reported that he had been able to drive at night and during off-peak times as well as doing more driving in the daytime and when there is more traffic. He has increased his driving from 15 minutes to 55 minutes over the course of the last several months and consistently reported feeling more confident about driving. However, Ms Dang observed that Mr Betland still exhibited symptoms of anxiety whilst driving and reported frequently checking his rear view mirror for fear of oncoming cars and being rear-ended again. He also reported sweating and occasional light-headedness whilst driving. Ms Dang noted that Mr Betland had been attending a gym regularly and that he had reported that his physical health had been steadily improving over recent months. He reported going on daily walks; going out with his family; and socialising more. The latter activities had improved his mood. Ms Dang recommended that Mr Betland continue attending psychosocial counselling sessions to address his symptoms and improve his overall mental health.[20]
[20] Application for damages settlement approval at pages 196-197.
On 19 June 2020, Mr Michael Omeros, clinical exercise physiologist, of Guardian Exercise Rehabilitation reported to IPAR Rehabilitation Pty Limited. Mr Omeros reported that Mr Betland had been compliant over the course of the program and had advised that he was now asymptomatic at most times and had achieved a near pre-injury level of functionality. Mr Omeros recommended that Mr Betland continue with his exercise program independently in a gym based environment to ensure that outcomes were maintained and to mitigate risk of re-injury. Mr Omeros noted that Mr Betland had been issued with a final certificate of capacity and that Guardian Exercise Rehabilitation would be discharging him from their care.[21]
[21] Application for damages settlement approval at pages 286-289.
On 27 July 2020, Mr Alan Chen, exercise physiologist, of IPAR Rehabilitation Pty Limited issued a NSW CTP closure report. Mr Chen reported that Mr Betland was referred to him for assistance in his return to his pre-motor accident capacity following his C5/6 cervical spine injury. At the time of the initial needs assessment, Mr Betland was certified with no form of capacity or for any form of employment. Following discussion with Mr Betland and Dr Nguyen, consensus was reached that he should attempt a graded return to his pre-motor accident capacity. Mr Betland had been certified fit to return to his pre-motor accident duties by Dr Nguyen on 31 May 2020.[22] Ongoing occupational rehabilitation services were no longer required. However Mr Chen recommended that Mr Betland continue his treatment with his psychologist on an ongoing basis.[23]
[22] Application for damages settlement approval at pages 72-74.
[23] Application for damages settlement approval at pages 290-293.

On 15 November 2021, Mr Betland consulted Dr Gregory McGroder, consultant occupational physician, at the request of AAMI and prepared a report on the same date.[24] I will now refer to the relevant parts of that report.
[24] Application for damages settlement approval at pages 321-327.
Dr McGroder opined that Mr Betland’s current presentation was of a whiplash associated disorder with its associated psychosocial factors. Mr Betland’s ongoing problems were not medically inconsistent with the motor accident being causative. Dr McGroder noted that Mr Betland ruptured a right pectoral muscle doing weights as part of his rehabilitation that had been surgically repaired but did have some ongoing problems with his right arm.
In respect of Mr Betland’s prognosis, Dr McGroder observed that one would have expected resolution of his condition considering his age and heavy muscular development. However, as with all whiplash associated disorders, an accurate prognosis could not be given and the expectation was for ongoing symptomatology.
In respect of Mr Betland’s fitness for work, Dr McGroder opined that he was currently fit for full-time restricted duties to comply with his symptomatology, which would suggest a 10kg lifting limit and the avoidance of fixed or awkward positions of the neck. Further, he should avoid repetitive forceful use of the upper extremities.
Dr McGroder assessed that Mr Betland would qualify in DRE cervical category 2 at 5% whole person impairment of the cervical spine, noting that there was no evidence of radiculopathy that would suggest a higher category. No impairment was assessed for the torn right pectoral muscle, which had been repaired.
On or about 24 February 2022, Mr Dany Aboumelhem, psychologist, responded to a questionnaire submitted by Benchmark Rehabilitation. Mr Aboumelhem stated that he had last reviewed Mr Betland on 15 December 2021 and diagnosed him with post-traumatic stress disorder with depression features. Mr Aboumelhem opined that Mr Betland would be able to return to pre-injury duties if and when a comparable job had been found for him. As Mr Betland’s high anxiety was around driving, he could not drive long distances. Mr Aboumelhem opined that Mr Betland’s domestic situation was greatly impacting his mental health and that such domestic situation was a direct result of not being able to work because of the motor accident. Mr Aboumelhem was greatly concerned that Mr Betland had voiced some suicidal ideation recently.[25]
[25] Application for damages settlement approval at pages 265-268.
Mr Betland came under the care of Dr Kuljic, consultant psychiatrist. On 5 March 2022, Dr Kuljic reported to AAMI. Dr Kuljic applied the criteria for post-traumatic stress disorder to Mr Betland situation and opined that Mr Betland presented with symptoms of post-traumatic stress disorder as a consequence of the motor accident, which was a traumatic experience and in which, Mr Betland thought he would die. In addition, there were symptoms of depression in the context of chronic pain-limited ability and significant changes in lifestyle. Dr Kuljic opined that Mr Betland would benefit from continued psychological treatments with trauma focused cognitive behavioural therapy as the treatment of choice.[26]
[26] Application for damages settlement approval at pages 269-271.
On 2 June 2022, Dr Kuljic again reported to AAMI. Dr Kuljic confirmed his diagnosis of post-traumatic stress disorder and symptoms related to depression, anxiety and irritability. The symptoms of depression were still present, even though he had started being more optimistic since experiencing the initial benefits of the prescribed antidepressant (Mirtazapine 15mg daily, later increased to 30mg daily). There was also an improvement in respect of symptoms of anxiety and insomnia. Dr Kuljic opined that Mr Betland had no work capacity from a psychiatric perspective. He was supportive of further psychotherapy treatment, focusing on cognitive behavioural therapy, initially weekly and later fortnightly. Dr Kuljic observed that Mr Betland had been exposed to few psychosocial stressors that might impact on his recovery. The first being the consequences of the motor accident including the inability to work and resultant financial pressure, which had worsened since AAMI stopped weekly payments. The second psychosocial factor was Mr Betland’s family situation and separation from his partner that was a consequence of the changes in his mental state after the motor accident.[27]
[27] Application for damages settlement approval at pages 273-277.
On 8 June 2022, Ms Christine Yong, rehabilitation counsellor, of Benchmark Rehabilitation issued a transferable skills assessment report. Ms Yong reviewed the material provided to her, which included a background, injury diagnosis, education, training, experience, employment history and details of Mr Betland’s pre-injury role at work. Ms Yong described the duties and tasks of each of the vocational options as suitable for Mr Betland. Ms Yong described in detail Mr Betland’s transferable skills. Ms Yong identified Mr Betland’s vocational options as that of a team leader/warehouse store person; a light picker/packer; and a forklift driver.[28]
[28] Application for damages settlement approval at pages 311-320.
On 9 June 2022, Mr Betland consulted Dr Graham Vickery, psychiatrist, at the request of AAMI and prepared a report dated 23 June 2022.[29] I will now refer to the relevant parts of that report.
[29] Application for damages settlement approval at pages 328-339.
Dr Vickery opined that there was no diagnosable DSM-V psychiatric condition due to the motor accident. Dr Vickery’s opinion in this regard contradicted the opinions of Ms Dang, Mr Aboumelhem, Dr Kuljic and Assessor Samuell. Dr Vickery further opined that the alleged injuries and disabilities were not the direct result of the motor accident but rather, the result of a subsequent adjustment disorder due to multiple personal stressors.
Based on the medical material provided to him, Dr Vickery observed that there had been a significant recovery in early 2020 until his marital separation in 2021, his opioid addiction and when he ceased working.
Dr Vickery opined that Mr Betland had no psychological inability to resume his pre-accident employment due to the motor accident.
Dr Vickery opined that there was no whole person impairment as there was no diagnosable DSM-V psychiatric condition as a result of the motor accident.

Should the proposed settlement be approved?

AAMI has offered to settle Mr Betland’s claim for damages for $500,000, which he has accepted by way of Agreement for Release, subject to approval by the Commission.
I have taken into consideration the written submissions in support of the Application dated 14 December 2022 provided by AAMI.[30]
[30] Application for damages settlement approval at pages 412-416.
Section 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. Based on the medical evidence, AAMI made no allowance for non-economic loss damages. Having considered the evidence of Dr McGroder and Dr Vickery, I am satisfied that Mr Betland’s whole person impairment is not greater than 10% and that therefore, there is no entitlement to damages for non-economic loss.
Section 4.5(1)(a) of the MAI Act provides that damages may be awarded for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity. In cases such as Medlin v State Government Insurance Commission[31] and Husher v Husher,[32] the High Court of Australia confirmed that the fundamental questions to be determined in a case such as this are whether Mr Betland has sustained a loss or diminution in his earning capacity and if so, whether that loss or diminution will result in economic loss.
[31] Medlin v State Government Insurance Commission [1995] HCA 5.
[32] Husher v Husher [1999] HCA 47.
AAMI allowed the sum of $315,000 for Mr Betland’s past economic loss. AAMI submitted that Mr Betland’s payslip for the period ending 7 April 2019 demonstrated earnings at an average of $2,807.12 gross per week, being $1,952.12 net per week. Such calculation was basically consistent with the documents in evidence.
AAMI submitted that, following the motor accident, Dr Nguyen certified Mr Betland unfit for work until 23 September 2019, when he was certified with capacity to work for nine hours per week with restrictions. Dr Nguyen ultimately certified Mr Betland fit for a trial of pre-injury duties from 19 April 2020 and he returned to work at Woolworths on that date. Dr Nguyen again certified Mr Betland fit for pre-injury duties on 20 May 2020. On 11 March 2021, Dr Nguyen certified Mr Betland as having a work capacity for 40 hours per week with a 40 minute driving restriction.
AAMI submitted that Mr Betland was made redundant effective from 28 May 2021 and that its understanding was that Mr Betland’s pre-accident role was no longer available because it was outsourced and Woolworths were unable to provide him with suitable employment opportunities. Mr Betland has not returned to any form of employment since the redundancy. On 26 May 2021, Dr Nguyen certified Mr Betland as having no work capacity and continues to so certify him.
AAMI submitted that there is evidence to suggest that Mr Betland has a residual earning capacity since he was made redundant. Notwithstanding such evidence, AAMI calculated Mr Betland’s past economic loss at $315,838.39 as follows:
(a)    $1,952.12 net per week from 8 April 2019 to 18 April 2020 being 54 weeks and totalling $105,414.48;
(b)    $1,952.12 net per week from 28 May 2021 to say, 13 January 2022, being 85 weeks and totalling $165,930.20;
(c)    $27,134.47 for past superannuation entitlements, and
(d)    $17,359.24 for Fox v Wood damages.
AAMI then rounded down the total to $315,000 for past economic loss. Mr Betland did not take issue with the calculation of past economic loss.
I consider the allowance for past economic loss to be just, fair and reasonable and within the range of likely potential assessment for that head of damage were the matter to be assessed by the Commission.
It was not disputed that AAMI had paid $190,952.31 in weekly benefits and that it sought credit for that amount under s 3.40 of the MAI Act from the proposed settlement amount.
In calculating any economic loss into the future, regard must be had to the provisions of s 4.7 of the MAI Act.
AAMI allowed a buffer of $185,000 as representing Mr Betland’s loss of future earning capacity for employment, including loss of superannuation entitlements, as a result of the injuries he sustained in the motor accident.
AAMI submitted that the Commission would find such allowance for future economic loss appropriate, bearing in mind that Mr Betland demonstrated capacity for pre-injury employment with minimal difficulties for a period of 13 months. Further, there was inconsistent evidence as to whether Mr Betland’s current psychiatric condition was related to the motor accident. Dr McGroder and Mr Abdoumelham suggested that Mr Betland has capacity for suitable employment, with the latter indicating that the impact of his domestic situation was greatly affecting his mental health. Nevertheless, AAMI acknowledged that an allowance for future economic loss should be made given Mr Betland’s ongoing psychiatric symptoms, which may be attributable to the motor accident and his minor physical injury.
Section 4.7 of the MAI Act does not preclude the awarding of a buffer for future economic loss. The occasion for a buffer in accordance with the principles enunciated in Penrith City Council v Parks[33] is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine. A buffer for future economic loss in the circumstances of this case is appropriate. Further, I consider the buffer for future economic loss to be just, fair and reasonable and within the range of likely potential damages assessment for that head of damage were the matter to be assessed by the Commission.
[33] Penrith City Council v Parks [2004] NSWCA 201.

Conclusion

I am satisfied that 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 the Commission, taking into account the nature and extent of the claim and the injuries, the disabilities, the impairments and the losses sustained by Mr Betland, and also taking into account the deductions to be made from the proposed settlement.
I am satisfied that Mr Betland understands that he is entitled to be represented in respect of the claim by an Australian legal practitioner but does not wish to do so.
I am satisfied that Mr Betland understands the binding nature and effect of the proposed settlement and that he will be precluded from making a further claim for damages arising out of the motor accident.
I am satisfied that Mr Betland is willing to accept the proposed settlement.
Accordingly, under s 6.23(2)(b) of the MAI Act, the proposed settlement of Mr Betland’s claim for damages in the amount of $500,000 is approved.

[2023] NSWPIC 90

6 March 2023