AAI Limited t/as AAMI v BEY
[2023] NSWPIC 164
•17 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | AAI Limited t/as AAMI v BEY [2023] NSWPIC 164 |
| Claimant: | BEY |
| insurer: | AAI Limited t/as AAMI |
| Member: | David Ford |
| DATE OF DECISION: | 17 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval issued under section 6.23; claim for damages for mental harm; claimant’s mother fatally injured in a motor vehicle accident; claimant suffers from post-traumatic stress disorder and prolonged grief disorder; claimant resigned from employment because of psychological injuries; not able to work on either full time or part time basis; 46-year-old caseworker entitled to damages for non-economic loss, past and future economic loss plus superannuation; Held – the proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | CERTIFICATE OF DETERMINATION 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
This application is a claim for damages for mental harm sustained by BEY (the claimant) arising from a motor vehicle accident on 4 October 2021 which resulted in the death of her mother. The claimant has a claim for damages for non-economic loss, past and future economic loss and past and future superannuation.
The insurer arranged for the claimant to be examined on a medico-legal basis by Dr Peter Whetton, psychiatrist and I refer to his report dated 27 January 2023. There is mention of a previous workers compensation claim subsequent to bullying and harassment in her workplace in 2016 and he is of the opinion she fully recovered from what was diagnosed as post-traumatic stress disorder. There were no frank symptoms present at the time of cessation of her treatment in 2020.
On page 4 of his report, he obtains details regarding her work history and post-accident, she was not able to cope with her employment and had periods of leave without pay. She realised she could not return to work because of her ongoing psychological injuries, and she resigned her employment. She has not engaged in other full-time or part time employment since her resignation.
Dr Whetton diagnosed the claimant was suffering from post-traumatic stress disorder and prolonged grief disorder. He accepts her ongoing disabilities have affected her ability to manage her day-to-day life and have prevented her from returning to work. He believes her symptoms are running a chronic course are stabilised at this stage, but improvement has stalled. He further expressed the opinion treatment is reasonably necessary for her developed condition following the accident. He assessed her whole person impairment (WPI) at 19%.
The claimant was born in 1976 and is presently 46 years of age. At the time of the accident, the claimant worked as a caseworker with Uniting Care. The insurer has been provided with details of her average gross earnings at that time The insurer has assumed the claimant would have continued earning $1,100 net per week but for the accident. I accept the death of the claimant’s mother has had a devastating effect upon her mental health, and now, it is difficult to anticipate when she will be able to resume employment, either on a full time or part time basis. She has developed a state of severe distress, suffers from sleep disturbance, weight and appetite disturbance. She also experiences panic attacks and lacking emotional control which impacts on her everyday functions leading to states of neglect of herself.
The claimant advised me she wishes to accept the proposed settlement.
The insurer conceded the claimant is entitled to damages. The claimant has a claim for non-economic loss, past and future economic loss past and future superannuation.
I consider the settlement is appropriate in all the circumstances of this case.
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
10. The Personal Injury Commission (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.
11. 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.
12. 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.
13. The claimant confirmed she had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
14. I am satisfied the claimant is aware of her right to have reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter, the claimant may be transferred to icare who will be liable for ongoing reasonable treatment expenses.
15. 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
16. 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, the injuries, disabilities and impairments sustained by the claimant.
17. I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
18. 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.
19. I am satisfied the claimant is willing to accept the proposed settlement.
20. 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
21. 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.
22. 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 the injuries, disabilities, impairments, and losses sustained by the claimant, and considering 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.
First teleconference on 12 April 2023
23. The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary teleconference on 27 March 2023. The claimant participated in person and the insurer was represented by Aimee Walsh.
24. The proposed deed of release was lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
25. I am satisfied it is appropriate in this matter to assess damages for non-economic loss in the sum of $350,000. Past economic loss plus superannuation $91,575. Future economic loss plus superannuation $436,250. Fox V Wood $11,935. Total is $889,760 less payments made to date by the insurer.
26. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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