AAI Limited t/as AAMI v Duardo
[2023] NSWPIC 479
•18 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | AAI Limited t/as AAMI v Duardo [2023] NSWPIC 479 |
| CLAIMANT: | Abby Duardo |
| INSURER: | AAMI |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 18 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claimant 24 years old; sustained injuries to her ribs, spine and significant facial injuries; she developed psychological symptoms; entitlement to non-economic loss and past and future economic loss; claimant aware of rights to reasonable future treatment for the rest of her life; Held – proposed settlement of $480,000 within the range of likely potential damages should the claim proceed to assessment; settlement just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s6.23 of the Motor Accident Injuries Act 2017 The proposed settlement is approved under s6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $480,000. |
STATEMENT OF REASONS
INTRODUCTION
On 21 July 2019, the claimant, Ms Abby Duardo (“Abby”), was travelling in a vehicle driven by her boyfriend at the time. They were on their way to a photo shoot when the insured driver collided with the vehicle causing serious injuries to Abby. The claimant gave permission to be referred to by her Christian name.
Abby has made a claim against AAI Limited t/as AAMI, the insurer.
The insurer has wholly admitted liability for the claim for common law damages.
Pursuant to the Motor Accident Injuries Act 2017 (MAI Act), the insurer has accepted that Abby is entitled to the payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
Abby and the insurer have reached agreement as to settlement of the claim for damages.
Because Abby is not legally represented, her settlement must be approved in accordance with the MAI Act.
The insurer lodged the application for approval of the settlement. And it was referred to me for consideration.
The insurer has conceded Abby is entitled to damages for non-economic loss and past and further economic loss.
THE RELEVANT LAW
Section 6.23(2) and (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 the requirements of the MAI Act or the Guidelines.
Clause 7.37 of the Guidelines states I must be satisfied that the proposed settlement is just, fair and reasonable and within the range of likely potential damages that would be assessed by a member taking into account the nature and extent of the claim having regard to the claimant’s injuries, disabilities, impairments, and losses sustained taking into consideration any deductions in the proposed settlement. Also, the claimant must understand the nature and effect of the settlement.
DOCUMENTS CONSIDERED
I have considered the totality of the material contained in the insurer’s submission and attachments. These included but not limited to, medical reports by doctors Frank Machart, Michael McGlynn and Inglis Howe Synnott. I have also considered the financial records which include payslips and a certificate of capacity.
REVIEW OF THE EVIDENCE
Abby is 24 years of age. Prior to the accident she was working as a casual bar attendant. She also performed at events, singing and dancing which she referred to as a ‘hobby’ rather than a serious form of employment or ‘a proper business’.
In the accident, Abby sustained injuries to her ribs and thoracic spine. The most serious injuries were to Abby’s face. Lacerations to her face comprised of damage to facial nerves, jaw muscles, salivary gland and significant nerve damage. As a result of her facial disfigurement, she has developed a psychological injury the extent of which she has described as ruining her confidence, the development of an eating disorder, embarrassment about face twitching, dribbling when drinking and avoidance of having her photo taken as well as mirrors.
Abby further described to me physical restrictions on carrying, lifting and bending activities. She has returned to some level of performance but is reluctant to be the ‘up-front person’ encouraging her guitarist to take on this role.
During the telephone conference, I asked Abby to turn on her camera to demonstrate her facial disfigurement. When she smiled, her eye involuntarily closes. She also demonstrated a puckering of her lips together, a technique she says she has adopted when drinking to try to prevent dribbling.
The insurer arranged three medical assessments. Dr Machart highlighted Abby’s “…main issue is the facial injury, which may require review by plastic surgeons”. He assessed Abby’s thoracic spine for whole person impairment at 5%.
Dr McGlynn in a hand and plastic surgeon. The doctor meticulously examined Abby’s facial disfigurement and nerve impairment and gives a detailed account of the paraesthesia injuries and sensory loss on the right side of Abby’s face. His total whole person impairment combined is 7%.
To give opinion of Abbey’s psychological injury, Dr Synnott took a history of the accident and heard Abby’s account of how the injuries have impacted on her life. She told the doctor at the time of the injury, she “…looked like a stroke victim”. She did tell me the look has improved but she reported her face has changed. Having considered Abby’s account of how she feels since the injury to her face in particular, Dr Synnott assessed whole person at 5% for a major depressive disorder.
ECONOMIC LOSS
The insurer offered $5,000 for past economic loss. Their submission explains this loss covers the time Abby took off work following the accident which is inclusive of superannuation. There is no Fox v Wood or statutory benefits to be deducted from the settlement offer.
At the time of the accident, Abby worked as a part-time bar attendant at Gordon Golf Club. Payslips during 2019 confirm her average net weekly earnings were $250.25. This figure was confirmed by Abby.
Abby’s general practitioner Dr Justin Surjadi certified her fit for pre-injury duties from 15 August 2019. Based on this evidence and Abby’s confirmation she has returned to her pre-accident work capacity, the insurer calculated her loss to be around $3,611. Their offer of $100,000 is a rounded buffer figure for past economic loss.
For future economic loss, the insurer accepts Abby may need to take time off work for treatment or occasional incapacity. They have offered to assess this loss in the sum of $5,000 which Abby has accepted. She makes no claim for any losses associated with her live performances as she does not consider this to be employment but rather a hobby.
THE PROPOSED SETTLEMENT
The insurer calculated the offer of settlement in the sum of $405,000. This figure is made up of $5,000 for past economic loss, $100,000 for future economic loss and $300,000 for non-economic loss.
Damages for non-economic loss are assessed via common law principles. The MAI Act absorbs those principles where it defines non-economic loss in section 1.4 as:
(a) pain suffering;
(b) loss of amenities of life;
(c) loss of expectation of life; and
(d) disfigurement
In assessing Abby’s entitlement to damages for non-economic loss, the insurer has taken into account the nature of the claimant’s orthopaedic, facial and psychological injuries. Also the insurer acknowledges the extent to which the claimant’s injuries have affected her functioning and ability to lead her pre-accident lifestyle.
The insurer acknowledges Abby’s orthopaedic injuries have largely resolved, they accept her facial injuries have significantly affected her self-confidence, which leads to her psychological symptoms.
Balancing all the factors addressed in their submissions, the insurer says the sum of $300,000 for non-economic loss is just, fair and reasonable and within the likely damages to be awarded if the matter were to be formally assessed.
TELEPHONE CONFERENCE
The only telephone conference was held with Abby, Brooke Hill and myself. As set out above, I asked Abby many questions about her facial injuries and the impact this has had on her confidence. We all turned on our cameras to give Abby the opportunity to demonstrate to me and Brooke Hill the scarring and involuntary shutting of her right eye when she smiled.
I addressed Brooke Hill and expressed my concern that the figure for non-economic loss was not within the range of damages that in my opinion, would be awarded should the matter be assessed by a member in the Commission. The reasons given is Abby’s young age, the significant impairment and disfigurement to this young woman’s face and her physical restrictions.
I asked her if she would be prepared to seek further instructions from the insurer to consider an increase in the offer before I made my decision with reasons.
I was provided with a message via the portal on 14 September 2023 addressed to me, on behalf of the insurer which states “In accordance with your direction, I confirm that the insurer has increased the offer for non-economic loss to $375,000. I have discussed the increase with Abby and she is satisfied with the amount”.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied Abby is aware the settlement finalises her entitlement to weekly benefits and to common law damages under the MAI Act.
I am satisfied that Abby is aware of her rights to have reasonable treatment expenses paid for the rest of her life. I urge Abby seek further treatment for both her facial injuries as well as her psychological injuries.
The insurer will not deduct and pay monies to Medicare from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge in addition to the settlement sum.
With the increase of $75,000 to the damages for non-economic loss, I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Abby.
I am satisfied Abby is aware she can seek legal advice but does not wish to do so.
I am satisfied Abby understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied Abby is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of Abby’s claim for damages in the sum of $480,000.
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