AAI Limited t/as AAMI v Wong

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as AAMI v Wong [2024] NSWPIC 620
CLAIMANT:	Man Chung Wong
INSURER:	AAMI
MEMBER:	Hugh Macken
DATE OF DECISION:	5 November 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; pedestrian hit by car; insured turning left; contributory negligence; no reduction for contributory negligence; past economic loss calculations; fracture to right knee; injury to right ankle; return to work on reduced hours and working restrictions; calculations to age 70; deductions for payments made; medical restrictions on employment type; both parties requesting settlement; precise calculations of past economic loss; Held – settlement approved.
DETERMINATIONS MADE:	CERTIFICATE SETTLEMENT APPROVAL Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The amount of the claim for damages is approved in the total amount of $280,000.

STATEMENT OF REASONS

INTRODUCTION

The claimant is a 68-year-old woman who was injured whilst crossing West Street, Eastwood on 17 February 2020. She was crossing the road, in front of what she describes as three stationary cars, when a metre or so from the kerb the insured vehicle turned left and knocked the claimant to the ground when it struck her. The point of contact was on the left-hand side of the insured’s vehicle. The claimant was struck on her right-hand side and sustained serious injuries to her right knee and right ankle.
In respect to the question of liability the insurer alleges contributory negligence on the part of the claimant of 20%. Whilst this would seem to be a reasonable apportionment noting the claimant was crossing in front of vehicles and not being fastidiously observant at the time of the collision for the purposes of this settlement with the claimant the insurer has not sought to deduct or reduce any of the claimant’s damages entitlement as a consequence of any allegation of contributory negligence. That is, there has been no reduction for contributory negligence notwithstanding the insurer’s reasonable assessment of it.
The claimant sustained a fracture to her right knee and an injury to her right ankle. She was conveyed to Ryde Hospital where she was an inpatient for a week before being discharged. She ambulated with the use of crutches following the accident. She has been treated by her general practitioner (GP) and orthopaedic surgeon. The claimant is currently not requiring any ongoing treatment and rehabilitation assistance.
The claimant was assessed by Dr Mitchell, occupational physician, in respect to the issue of whole person impairment. Noting that there had been no surgical procedures and that the claimant had made a relatively good recovery he assessed whole person impairment of 5% in a report dated 15 February 2022.
The claimant was also assessed by Dr Rosenthal, occupational physician, who similarly assessed the claimant’s injuries to the right leg and ankle and assessed the claimant as suffering a 7% whole person impairment in his report dated 25 September 2023.
The claimant was employed as a cleaner at Ryde Hospital at the time of the accident. Following her injury she was unfit for work until towards the end of October 2020 and thereafter returned to her employment with reduced hours and with some ongoing work restrictions. She was able to continue gradually increasing these hours until about September 2021 at which time her employment was terminated as a consequence of her inability to perform her pre-injury duties. The claimant has not returned to work in any paid capacity since ceasing work at Ryde Hospital.
The insurer has provided very detailed calculations in respect to the claimant’s past economic loss noting net earnings of about $815 per week. Most tellingly the claimant has not worked since September 2021. When an allowance of superannuation is made (11%) as well as an amount for tax paid on behalf of the claimant ($6,666) a total calculation of past economic loss comes to a figure of in the order of $208,445. The insurer has rounded this figure up to $210,000.
At discussions at the assessment conference the claimant agreed that this was reflective of her past wage loss although she had not worked through the precise calculations or details provided by the insurer.
The insurer has made a further allowance, in respect to future economic loss of $850 per week to a date close to the claimant’s 70^th birthday. When an allowance for superannuation (13.75%) is made this comes to a figure of $69,856.72 which the insurer has rounded up to $70,000.
It ought also be noted that the insurer has paid weekly benefits to the claimant totalling $73,807.84 being payments made pursuant to s 3.40(1)(b) of the Motor Accident Injuries Act 2017. These payments made up to the claimant’s 67^th birthday total $73,807.84. The insurer is seeking a credit for this leaving the claimant the sum of $206,192.16 after the deduction of the payments made by the insurer.
I have no hesitation in approving this settlement figure. In this regard, I note that these calculations do not include any discount for contributory negligence even though, in my view, there is a high likelihood that the claimant would be found to be guilty of contributory negligence were the matter to be assessed. She was crossing the road in front of vehicles at an intersection which was not controlled by traffic lights. The insured vehicle needed to ensure that the roadway was clear to the right before commencing to turn left and accordingly was likely to move into the left turn, the claimant was, moving off the kerb unexpectedly and the collision occurred knocking the claimant to the ground. In my view she put herself in a position of danger and a finding of contributory negligence, albeit it relatively small, would likely be made.
The medical material notes that the claimant has made a good recovery. The fracture of the patella did not require surgery. The ankle injury, whilst still troubling her today, would have the effect of leaving her with an impairment of the right lower extremity which, as the medical material bears out, would not give rise to a finding of in excess of 10% whole person impairment. Dr Ruggeri in his report dated 2 August 2021 noted that the claimant “could possibly improve her hours and duties within the framework of her graded return to work plan.” This opinion was echoed in the report of Dr Rosenthal dated 25 September 2023 which noted that the claimant “is restricted with prolonged standing, walking and squatting and thus would not be able to resume her pre-accident employment.” He goes on to say that the claimant “could return to suitable employment with the restrictions noted.” Both the claimant at the assessment conference and the medical material support a contention that the claimant’s incapacity for work is not a total incapacity although, noting her age and prior employment requirements it is reasonable that the parties deal with this matter as one which has been effectively ended.
The insurer has calculated accurately the claimant’s past economic loss and rounded such calculations up to the claimant’s benefit.
The calculation of future economic loss, going as it does close to the claimant’s 70^th birthday without any further discount, is in my view quite appropriate. The claimant was involved in relatively heavy work as a hospital cleaner. In my view there is no material that would support a calculation for future economic loss to beyond the claimant’s 70^th birthday. The calculation also makes appropriate allowances for the claimant’s loss of employer’s superannuation contributions.
It ought also be noted that the claimant has some alternative independent income. She does not receive an age pension because she derives a rental income from an investment property. She lives in a home owned by her husband, who is still employed.
I have no hesitation in approving this settlement. I note that both parties request I approve the settlement. I note that the documentation giving affect to the agreement has been signed by both parties.

[2024] NSWPIC 620

5 November 2024