AAI Limited t/as AAMI v Cousins
[2023] NSWPIC 121
•15 March 2023
| 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 the Motor Accident Guidelines, says that in considering the settlement the Commission must consider whether:
“(a) 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 a (member of 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”.
Claims for damages
13.The MAI Act limits the types of damages that can be awarded to any injured person and the amounts of those damages. The available heads of damage are set out below.
Damages for non-economic loss
14.Damages are available for non-economic if the person has a whole person impairment (WPI) of greater than 10%. Whole person impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines which are largely based on the American Medical Association’s guides to The Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
15.Ms Cousins has been assessed at the Commission for assessments of whole person impairment. A certificate of Assessor Home dated 3 September 2019 concluded the claimant’s “lumber spine – soft tissue injury – underlaying disc degeneration at L4/5 and L5/S1 is a minor injury for the purposes of the Act”.
16.Assessor Samuel issued a certificate dated 9 September 2019 after assessing the claimant in which he concluded the psychological injury, allegedly caused by the accident “…did not occur as a result of the motor vehicle accident”.
17.On 23 April 2021, Assessor Hong concluded the claimant sustained Post Traumatic Stress Disorder “…is not a minor injury…” and was caused by the accident.
18.The insurer obtained a number of reports from medico-legal experts. Dr Menogue reported the claimant’s right ankle, left knee and thoracic spine were asymptomatic. He did report the claimant described ongoing med-sternal pain, cervical and lumber pain. The doctor did not accept causation of injury to the cervical spine and considered her left knee injury had resolved.
19.Psychiatrist, Dr George, reported the claimant’s psychological symptoms were relatively mild. He assessed whole person impairment at 1%.
20.Dentist Dr Nichols commented on the claimant’s dental condition which does not advance Ms Cousins’ claim she damaged teeth in the accident.
21.Dr Renigeris has provided a number of reports. His recent opinion is contained in his report dated 7 Match 2023. He says he treated Ms Cousins for a back injury which occurred on 2 May 2018. He says after three months her injury improved. She returned to full time work as her symptoms had resolved. He lists the injuries she sustained in the accident and confirmed, in 2020, she ceased work due to her physical and psychological injuries caused by the accident.
Damages for Economic losses
22.Section 4.5 of the MAI Act limits the types of damages that can be awarded for economic losses:-
(a) Damages for past or future economic loss of earnings or the deprivation of earning capacity, and
(b) Damages for costs relating to accommodation or travel (not being the cost of treatment and care) of a kind prescribed by the regulations, and
(c) Damages for the cost of the financial management of damages that are awarded, and
(d) Damages by way of reimbursement for income tax paid or payable on statutory benefits arising from the injury that are required to be repaid on an award of damages to which this Part applies.
23.The insurer’s offer did not include the cost of financial management which is usually awarded to persons who have limited capacity and cannot make financial decisions on their own. This is no such case.
24.The insurer has made allowances for past and future loss of earnings including superannuation. There is re-imbursement to the insurer for statutory benefits paid.
25.No allowance has been made for accommodation or travel.
REVIEW OF THE EVIDENCE
26.From a history taken by Assessor Samuell, Ms Cousins was born in Sydney where she grew up. She was fostered from the age of six months and was adopted at the age of eight. She has basically no family history. She was educated to Year 10 before working as an assistant in a chemist at Westmead. She remained in this position for five years before training as a dog groomer. She was employed in a vet at Casula for over 10 years.
27.She told me at the time of the accident, she was working two jobs as a dog groomer. On 2 May 2018 she lifted a malamute dog into a bath tub and injured her back. She attended her general practitioner and according to both Ms Cousins and the doctor, she made a full recovery from that injury prior to this accident.
28.In her personal injury claim form, Ms Cousins revealed she was earning $400 per week before the accident. However, during the telephone conference I had with Ms Cousins and the insurer’s representative, she told me she had a part time job at a pet shop earning about $120 per week along with her position at St Mary’s Vet where she earned approximately $500 per week. She was also receiving Centrelink benefits.
29.Although she returned to some form of work after the accident, by 2020 she had ceased work altogether and says she can no longer work.
30.Since the accident, Ms Cousins has been treated conservatively. She has had radiology investigations, physiotherapy and medications. I am satisfied on the evidence, her injuries have stabilized.
CONSIDERATION OF THE SETTLEMENT
The offer of settlement
31.The insurer’s initial offer of settlement was $160,000 made up of:
a) Past economic loss - $80,000
b) Future economic loss - $80,000
32.That offer has been increased to $200,000 with an increase to the buffer for future loss of earnings to $120,000 inclusive of superannuation.
33.The insurer has submitted Ms Cousins was working approximately 16 hours a week prior to the accident earing $400 per week. It is acknowledged by the insurer that the accident-related injuries would impact on her ability to carry out the heavier duties as a dog groomer.
34.As the impairment of earning capacity cannot be accurately calculated, the appropriate assessment has been adopted by the insurer to propose the past loss of earnings be assessed as a buffer of $80,000.
35.Matters considered in this assessment is Ms Cousins has not returned to gainful employment; she has significant skills as a dog groomer which involves duties requiring lifting, carrying, repetitive movements and prolonged postures; the acceptance of Dr Renigeris’ opinion and the opinion of the rehabilitation provider and the claimant’s attempt to return to work.
36.Dealing with the submissions for the assessment of future economic loss, the insurer again has adopted the buffer approach. It is noted the claimant has 15 years to retirement age of 67 years. The medical evidence supports Ms Cousins has a minimal impairment as a result of her injuries. She also has the responsibility of the care of her son.
37.Nevertheless, after expressing my concerns the initial offer was inadequate, this assessment of a buffer was increased by $40,000.
The requirements of the legislation
38.When considering the provisions of s 6.23 of the MAI Act and cl 7.37 of the Guidelines along with the rules and practice directions of the Commission in determining whether to approve Ms Cousins’ settlement, I must consider:
a) Appropriateness – whether the amount of the settlement is just, fair and reasonable, and
b) Understanding- whether Ms Cousins understands the settlement and its terms and the effect of the settlement in ending her claim for damages.
39.I am satisfied that Ms Cousins understands that she is entitled to reasonable and necessary, accident-related treatment and care for the remainder of her life. The settlement of this damages claim does not affect that claim and Ms Cousins can continue to ask and receive assistance and treatment from the insurer.
40.Ms Cousins accepts that the settlement of her damages claim is binding upon her and that she cannot make a further claim for damages in the future. She understands while she will receive treatment and care if she asks for it, the settlement of this claim will end as will the insurer’s liability to pay her weekly benefits for any loss of earnings.
41.Ms Cousins confirmed she did not wish to engage legal representation and in fact, indicated during the telephone conference, she had the support of a solicitor friend, Steven Brown. Mr Brown assured me he was not familiar with personal injury law but would support Ms Cousins during this process.
42.I am satisfied that the allowance for past and future economic loss is fair and reasonable. Both heads of damage have been calculated as a lump sum which is an appropriate approach where earning capacity has been reduced but its extent is difficult to assess, see Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13. Although Ms Cousins has not returned to her pre-accident duties, she may have a residual capacity to undertake light sedentary duties. The insurer has made reasonable allowances for periods of incapacity in the past and in the future.
43.I am therefore satisfied that the total amount for damages offered to Ms Cousins by the insurer is appropriate and within the range that I would assess.
CONCLUSION
44.I am therefore satisfied that the proposed settlement figure of $200,000 is an appropriate one and that it complies with the requirements of cl 7.37 of the Guidelines, in that it is:
“….just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and injuries, disabilities, impairments and losses sustained, and taking into account any proposed reductions or deductions in the proposed settlement”.
45.Accordingly, pursuant to s 6.23 of the MAI Act the proposed settlement of Ms Cousins’ claim for damages is approved.
46.I am informed by the insurer Ms Cousins has received advance payments in the amount of $10,000. The insurer is to receive a credit for $10,000 from the settlement amount
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