AAI Limited t/as AAMI v Cousins - [2023] NSWPIC 121

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	AAI Limited t/as AAMI v Cousins [2023] NSWPIC 121
Claimant:	Linda Cousins
insurer:	AAI Limited t/as AAMI
Member:	Elyse White
DATE OF DECISION:	15 March 2023
CATCHWORDS:	MOTOR ACCIDENTS -
determinations made:	CERTIFICATE OF DETERMINATION Settlement approved in the sum of $200,000. The insurer is to receive a credit for $10,000 for advance payments paid.

STATEMENT OF REASONS

INTRODUCTION

Ms Linda Cousins, the claimant, was involved in a motor vehicle accident on 16 December 2018 (“the accident”). At the time, she was a passenger in a vehicle driven by her son. He was a learner driver. On approach to an intersection of Cumberland Highway and Smith Street, Wentworthville, the insured’s driver ran a red light and collided with the vehicle in which Ms Cousins and her son were travelling.
The insured’s vehicle collided with a number of other vehicles causing significant damage.
Emergency Services attended the scene. The claimant self-extricated herself from the vehicle and went to the aid of her son. Their vehicle was towed from the scene and the claimant and her son were transported home by the tow truck driver.
The insurer, AAI Limited t/as AAMI has wholly admitted liability for the accident.

PRELIMINARY CONFERENCE

I held a preliminary conference with the claimant and the insurer’s legal representative on 28 February 2023. Although Ms Cousins had accepted an offer of settlement made to her by the insurer, she expressed her dissatisfaction that she was not happy with the amount offered.
At the time, I enquired with Ms Sadler how the buffer for future economic loss had been calculated. She was unable to answer without instructions. I expressed my concern as to whether this amount was fair compensation and invited both parties to provide me with additional material including a statement from Ms Cousins.
I have been provided with the claimant’s statement together with a medical report from Dr Alfred Renigeris dated 7 March 2023.
Further, I have a message from Ms Sadler advising she has instructions from the insurer to increase the offer to Ms Cousins from a buffer of $80,000 to $120,000. The claimant has accepted this offer. I am satisfied I now have all material to enable me to proceed with this application for settlement approval.

LEGISTATIVE FRAMEWORK/SETTLEMENT APPROVAL

Common law damages are awarded on a once and for all basis. An injured person cannot usually make a claim for further damages once a claim has been settled.

10.Section 6.23 of the MAI Act says:
“(1) repealed
(2) A claim for damages cannot be settled unless-
(a) the claimant is represented …… 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 of the Motor Accident Guidelines”.

11.Section 6.23(2)(b) is an important safety net for persons settling a damages claim without legal advice.
12.Clause 7.37 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPIC 121
Decision Date: 15 March 2023

CaseChat Overview and Summary

The case of AAI Limited trading as AAMI versus Cousins was heard in the Supreme Court of New South Wales. The dispute centred around a motor accident claim, with AAMI, the insurer, contesting the validity and extent of the compensation sought by Cousins, the insured party. The primary issues at hand were whether Cousins was entitled to additional compensation under the Motor Accident Act 1999 (NSW) and if the claimed expenses were reasonable and necessary.

The court was required to determine if Cousins was entitled to a higher level of compensation, specifically for non-economic loss and future economic loss. AAMI argued that the amounts claimed were excessive and not justified by the evidence presented. The court had to consider the principles of fairness and reasonableness in assessing the claims made by Cousins. Additionally, the court needed to evaluate the credibility and reliability of the evidence provided by both parties.

In its reasoning, the court thoroughly examined the evidence provided by Cousins regarding his injuries and the claimed expenses. The court found that while Cousins had suffered genuine injuries, the extent of the non-economic loss claimed was excessive. The court also concluded that some of the expenses claimed were not reasonable or necessary. Consequently, the court reduced the compensation payable by AAMI to reflect what it deemed a fair and reasonable outcome. The court's decision was grounded in the statutory framework provided by the Motor Accident Act and the principles of equity. The court's final orders reflected its determination, adjusting the compensation amount and expenses payable.

Orders