AAI Limited t/as AAMI v Young
[2023] NSWPIC 473
•11 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | AAI Limited t/as AAMI v Young [2023] NSWPIC 473 |
| CLAIMANT: | Daniel Young |
| INSURER: | AAMI |
| MEMBER: | David Ford |
| DATE OF DECISION: | 11 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 49-year-old male; rider of a motorcycle involved in a collision with the insured motor vehicle; no allegation of contributory negligence; sustained serious fractures of the right tibia and fibula resulting in multiple surgeries; claim for non-economic loss only; no claim for past or future economic loss; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE DETERMINATIONS MADE 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. |
STATEMENT OF REASONS
INTRODUCTION
On 24 January 2019, Daniel Young (the claimant) was riding his Harley Davidson motorcycle near the intersection at Berry Street and Egans lane at Nowra, when he was struck by the motor vehicle being driven by the insured driver. The insurer accepted liability for the accident, and there was no allegation of contributory negligence. Police and ambulance attended the scene of the accident, and initially he was taken to Nowra hospital.
Subsequently, he was transported to Wollongong Hospital the following day. He had suffered an open fracture of the distal right tibia and fibula. He underwent surgery on
25 January 2019, which involved debridement and fixation of the right leg wound with repair of the tibialis posterior and flexor digitorum and longus tendons and application of external fixator at the left tibia. He had further surgery on 1 February 2019 and underwent removal of external fixateur and intermedullary nailing of the right tibia with split skin grafting. There was further surgery on 5 February 2019 for wound debridement and skin grafting of his right leg wound. He underwent a further plastic surgical procedure on 15 February 2019. He was discharged from Wollongong hospital on 20 February 2019.
He was then re- admitted to Wollongong Hospital on 3 April 2019 for further wound debridement. On 12 April 2019 he was discharged from hospital. He was reviewed by
Dr Thornton-Bott, orthopaedic surgeon, on 5 July 2019, who recommended further operative treatment. He was admitted to Shell Harbour Private Hospital on 3 September 2019 and underwent exchange of his tibial nail and plating of his fibula. In January 2020 he underwent a course of physiotherapy and attended chiropractic manipulation. He took medications which included oxycodone, oxynorm, meloxicam and Lyrica.
The insurer arranged for the claimant to be examined on a medico legal basis by
Dr Raymond Wallace and I refer to his report dated 7 February 2022. The claimant told
Dr Wallace he has aching pain about the right leg at the distal third of the tibia accompanied by intermittent sharp pain at the right heel. The pain is worse on squatting, walking, jogging or negotiating uneven ground and is relieved by rest or lying down. He further advised he has been unable to return to work since the injury in 2019.
At the preliminary conference on 31 August 2023, the claimant advised me he did not wish to make a claim for either past or future economic loss, as he was not able to substantiate any such claim for economic loss because when he has resided in Australia in the past, he has not pursued gainful employment. He advised me in the last 20 years, he has been working overseas in various war zones. At the time of the preliminary conference, he was residing in Ukraine. Although Dr Wallace assessed the claimant as having a whole person impairment of 6%, the insurer has accepted, that when additional impairment arising from scarring and muscle atrophy is taken into account, then the insurer is prepared to concede the impairment of the claimant would likely to exceed the 10% threshold. On that basis, the insurer has conceded the claimant is entitled to damages for non-economic loss only. The insurer has proposed $270,000 for such damages.
The claimant was born in 1974 and is presently 49 years of age.
The claimant advised me he wishes to accept the proposed settlement.
I consider this 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). I have decided to approve the proposed settlement as submitted in this application.
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 clause 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 he 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, taking into account 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 31 AUGUST 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 31 August 2023. The claimant participated in person and the insurer was represented by Sebastian Huynh.
The proposed deed of release was lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages in the sum of $270,000.
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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