AAI Limited t/as AAMI v Wilkes
[2024] NSWPIC 526
•23 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Wilkes [2024] NSWPIC 526 |
| CLAIMANT: | Glenn Wilkes |
| INSURER: | AAMI |
| MEMBER: | David Ford |
| DATE OF DECISION: | 23 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); claimant was the driver of a motor vehicle involved in a collision with insured motor vehicle at an intersection; claimant sustained injuries to right shoulder, lumbar spine, fractured sternum and aggravation of right hip osteoarthritis; insurer wholly admitted liability, conceded non-threshold injury and entitlement to damages for non-economic loss, past and future economic loss; claimant is a warehouse manager and has been able to return to pre-injury employment; Held – the proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE 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 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 9 August 2021, Glenn Wilkes (the claimant) was driving his motor vehicle towards the intersection of Maitland Rd and Newcastle City bypass at Sandgate, when the motor vehicle being driven by the insured driver, drove through the intersection, contrary to a red arrow traffic light signal, and collided with the claimant’s vehicle.
Consequently, the claimant sustained serious injuries, which were as follows:
(a) fractured sternum with retrosternal haematoma.
(b) right shoulder soft tissue injury.
(c) lumbar spine - muscular ligamentous injury and aggravation to underlying degenerative disc disease, and
(d) aggravation of right hip osteoarthritis.
The claimant was transported by ambulance to John Hunter Hospital, where he was admitted, and subsequently discharged on 11 August 2021. He has undergone extensive treatment, being physiotherapy, exercise physiology, pain management and a gym programme. Subsequently, he underwent a total right hip replacement on 6 November 2023.
The claimant was born in 1958 and is presently 66 years of age. At the time of the accident and up until the present time, he has been employed by JWN Asset management, a cleaning company owned and operated by his sons. He is employed as a warehouse manager. Since the accident, for various periods, he was unable to attend work, and when he did so, he worked at a reduced capacity. The insurer, in their submissions, have set out details of the relevant periods where he suffered a wage loss, and at the preliminary conference on 17 September 2024, the claimant agreed with the calculations proposed by the insurer.
The insurer wholly admitted liability by letter dated 16 March 2023 and the insurer has conceded a non-threshold injury and has also conceded he is entitled to damages for non-economic loss, past economic loss, and future economic loss.
The insurer arranged for the claimant to be examined on a medico legal basis by Dr Richard Powell, and I refer to his reports dated 29 August 2023 and 29 July 2024. I note the following on page 4 of his report dated 29 July 2024 under the heading” Clinical Progress”:
“In relation to the right hip, Dr Salaria performed a total hip replacement on
6 November 2023. He was discharged 4 days later, though suffered a flare in his gout, affecting his feet and was then re admitted for several days. He subsequently was discharged home. He completed a rehabilitation programme. He informed me he has required heel raises to address a leg length discrepancy.There have been no further incidents or injuries. He has been able to return to work in a self-limiting capacity in his own cleaning business, effectively working his preinjury duties in a full-time capacity”.
Dr Powell carried out a physical examination of him, and on page 10 of his report, he opines the following:
“Based on the examination, I believe that it is reasonable to conclude that his ongoing symptoms and associated disabilities are in part, the direct result of the accepted injuries sustained in the subject motor vehicle accident. There is, however, evidence of significant pre-existing degenerative changes involving the lumbar spine and right hip.”
On page 11 of his report, he opines the following:
“Mr Wilkes has not been able to perform his pre accident home duties to his previous level of capacity ever since the accident. Although his condition has improved with treatment by his doctors, he has not returned to his pre-accident level of function and is unlikely to do so. His ongoing partial incapacity is multifactorial taking into account contribution from the multiple musculoskeletal injuries sustained in the subject motor vehicle accident, as well as the pre-existing degenerative disease processes, involving the lumbar spine and previously, the right hip.”
I further note Dr Powell states the following on page 14 of his report,
“Mr Wilkes has never at any stage been able to resume his full preinjury duties his periods of total and subsequent partial incapacity are the direct result of the injuries sustained in the subject motor vehicle accident. There is also a contribution there from the underlying degenerate disease processes involving the lumbar spine and right hip.”
Dr Powell assessed the claimant as having a 13% whole person impairment in respect to the injuries sustained in the subject accident.
The insurer has proposed to resolve the claim for a sum of $447,000 less statutory payments made to date. The amount of such statutory payments total $9,076.53. The calculation of the proposed sum is as follows:
· non-economic loss $325,000
· past economic loss $66,000
· future economic loss $56,000
· tax instalment reimbursement $9,076.53
Total $447,000 less statutory benefits
The claimant advised me he wishes to accept the proposed settlement. I consider the settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
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).
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (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.
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.
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.
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.
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
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, considering the nature and extent of the claim.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
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
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.
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 taking into account 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.
PRELIMINARY CONFERENCE ON 17 SEPTEMBER 2024
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 17 September 2024. The claimant participated in person and the insurer was represented by Adriana Papaspiros.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess total damages in the sum of $447,000 less statutory payments made to the claimant, which results in a net payment to the claimant in the sum of $437,923.47.
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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