AAI Limited t/as GIO v Alder
[2024] NSWPIC 657
•29 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Alder [2024] NSWPIC 657 |
| CLAIMANT: | David Ian Alder |
| INSURER: | GIO |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 29 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 6.23; settlement approval in the sum of $470,000; 69-year-old male cyclist struck by vehicle; non-economic loss of $350,000; numerous orthopaedic injuries, skin graft and scarring; considerable recovery at time of assessment; past economic loss; $20,000 buffer; future economic loss buffer $100,000; possible early retirement; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $470,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
David Ian Alder (the claimant) was injured on 2 December 2022 when riding his bicycle northeast along Lanyon Drive at Jerrabomberra when the insured’s driver collided with the rear of the bicycle causing the claimant to suffer significant injuries.
He was taken by ambulance to Canberra Hospital where he underwent numerous scan and treatment.
The multiple injuries suffered by the claimant included the following:
(a) subdural haematoma along bilateral tentorium cerbelli;
(b) multifocal subarachnoid haemorrhage within posterior fossa;
(c) undisplaced fracture of the left occipital bone;
(d) minimally displaced fracture along the wall between sphenoid sinus;
(e) cervical 4 spinus process and bilateral lamina fracture;
(f) cervical 5 transverse process fracture;
(g) cervical 5 vertebral body fracture;
(h) pulmonary contusion;
(i) bilateral rib fractures;
(j) thoracic 1 transverse process fracture;
(k) left clavicle fracture extending into left acromioclavicular joint;
(l) fracture of left lateral malleolus of right ankle;
(m) right popliteal fossa laceration, and
(n) left ear laceraction.
He was subsequently discharged from hospital on 16 December 2022. He required the use of a Miami J collar for six weeks, left arm sling for three weeks and use of Darko shoe for three weeks. He was unable to drive for six weeks.
Conservative treatment followed with consultations with plastic surgeon on 21 December 2022, orthopaedic assessment on 5 January 2022, neurosurgical review on 13 January 2022, ear nose and throat follow up on 13 January 2022 and regular follow ups with general practitioner thereafter.
Regular physiotherapy, hydrotherapy and osteopathic treatment supplemented rehabilitation and a graduated return to work.
The claimant at the date of the accident was employed full time as an Aedrodrome Specialist engineer with the Civil Aviation Safety Authority earning $2,085 net weekly.
The claimant lodged an Application for Personal Injury Benefits on 22 December 2022 and brought a common law claim for damages on 22 October 2024.
The insurer accepted liability on 29 October 2024.
The insurer conceded the claimant is entitled to non-economic loss as his injuries exceed the statutory threshold of 10% whole person impairment. The parties negotiated a settlement of the claim in the sum of $470,000 representing the sum of $350,000 for non-economic loss, $20,000 for past economic loss and $100,000 for future economic loss.
The application before me is for the approval of the settlement.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (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 Personal Injury Commission 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 claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and
(b) taking into account any proposed reductions or deductions in the proposed settlement, and
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Preliminary conference on 25 November 2024
A preliminary video-conference was held with the claimant and insurer to ascertain the claimant’s understanding of the nature and effect of the settlement and to ascertain the status of the claimant’s ongoing injuries and disabilities as they impact upon the claimant.
During the conference I asked the claimant a number of questions to ascertain the level of ongoing symptoms and treatment currently being received.
The claimant advised me that he no longer suffered “any real pain”. His major symptom was limited range of movement in his neck.
When asked about ongoing treatment, I was informed that there is “no further treatment ongoing at the moment”. He is not continuing with any further physiotherapy, He intended to continue with physiotherapy, but life circumstances got in the way and he no longer feels he needs it.
In relation to his right ankle, there are “no real problems with the ankle”. He reported the other knee has issues now “it got crook but its not related to the accident”.
As to his shoulder, he suffers “a very occasional ache after trimming the hedges but it’s not really significant”.
As to his memory he reported “I don’t think it’s as good as it used to be but I’m not sure its accident related. It’s probably old age”.
As to his ongoing activities, the claimant has returned to full-duties at work, returned to riding his bicycle and undertakes gardening activities around the home.
He reported concern about arthritic changes developing in the future but followed this comment with a response, “considering there is not much troubling me, it is probably unlikely”.
The claimant confirmed he has now reduced his work to four days a week as a transition to retirement, “a move which is lifestyle choice not accident related”.
I explained to the claimant that my role in determining whether the settlement should be approved looked into whether the sum agreed was just, fair and within the range of damages likely to be assessed by a Member of the Personal Injury Commission (Commission) had the matter been heard before a Member and that this was a safeguard for unrepresented injured persons.
The claimant confirmed during this preliminary conference that he did not wish to obtain legal assistance or seek any further advice as he thought the offer in relation to future economic loss “was pretty generous really”.
The insurer confirmed that there were no statutory deductions to be taken from the settlement sum. The insurer confirmed that ongoing medical treatment was separate to the settlement.
The claimant confirmed his willingness to accept the settlement in the sum of $470,000 and that he would not have any deductions from this sum.
The parties were then advised that I would determine the application on the information available to me.
The claimant and the insurer requested the settlement be approved and confirmed there was no additional material to be relied upon.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle contained in the application:
Liability:
(a) Application for Statutory Benefits dated 22 December 2022;
(b) Application for Common Law Damages dated 22 October 2024;
(c) liability notice dated 29 October 2024;
(d) correspondence conceding 10% threshold for whole person impairment dated 29 October 2024;
(e) submissions of the insurer dated 5 November 2024, and
(f) executed agreement of release dated 29 October 2024.
Medical records:
(a) ambulance report dated 13 March 2023;
(b) Discharge Summary Canberra Hospital dated 16 December 2022 and 27 June 2023;
(c) Medical Certificate Dr Cole dated 19 December 2022and 10 February 2023;
(d) Dr Cole report dated 18 January 2023,27 February 2023,15 March 2023, 18 April 2023, 16 May 2023, and 7 July 2023;
(e) report of Dr Vranic dated 1 March 2023;
(f) report of Benchmark Rehabilitation dated 21 July 2023;
(g) X-ray right foot dated 30 January 2023;
(h) CT left shoulder dated 30 January 2023;
(i) MRI left shoulder dated 23 February 2023, and
(j) MRI abdomen dated 27 February 2023.
Liability documents:
(a) NSW Police report dated 9 January 2023 event No E91646122;
(b) Factual Report Brookside Investigations dated 3 February 2023, and
(c) s 6.25 particulars.
Financial documents:
(a) Various payslips Civil Aviation Safety Authority.
Settlement documents:
(a) Deed of release dated 29 October 2024.
Claim
The claimant’s Application for Common Law Damages related to injuries sustained in the subject accident comprising the following:
(a) subdural haematoma along bilateral tentorium cerbelli;
(b) multifocal subarachnoid haemorrhage within posterior fossa;
(c) undisplaced fracture of the left occipital bone;
(d) minimally displaced fracture along the wall between sphenoid sinus;
(e) cervical 4 spinus process and bilateral lamina fracture;
(f) cervical 5 transverse process fracture;
(g) cervical 5 vertebral body fracture;
(h) pulmonary contusion;
(i) bilateral rib fractures;
(j) thoracic 1 transverse process fracture;
(k) left clavicle fracture extending into left acromioclavicular joint;
(l) fracture of left lateral malleolus of right ankle;
(m) right popliteal fossa laceration, and
(n) left ear laceration.
He reported ongoing disabilities in his application as:
(a) ankle is a bit still and swollen at times;
(b) neck movements are still and occasional clicking noise;
(c) significant scarring behind right knee and skin graft site;
(d) occasional lack of balance;
(e) possible memory loss but likely age related;
(f) reduced aerobic capacity and stamina;
(g) loss of general fitness;
(h) grafted ear does not support a face mask and susceptible to water ingress.
The claimant has recovered significantly since the initial injuries were sustained. When reviewed during the preliminary video-conference, the claimant considered most of his ongoing disabilities mentioned were no longer problematic with the exception of his neck stiffness.
The claimant reported post accident injuries as a fall from his bike in August 2023 and two falls whilst walking on uneven grounds. All these events did not cause any significant injury.
Review of the medical information
The rehabilitation discharge summary dated 19 July 2023 confirmed the closure of the graduated return to work program. The claimant received a score of 10 which indicated a “full return to function of identified activities. Mr Alder has returned to riding his push bike with no concerns. He is also at work on a full-time basis performing his PID role as an Aerodrome Engineer on his PID, 38 hours per week with Civil Aviation Safety Authority(CASA)”.
As to assistance with functional goals, “at the time of case closure, no further services were required. Mr Alder advised that he is able to attend the gardening and trimming tasks.”
From the medical evidence produced in this matter physical examination on 1 March 2023 by Dr Vrancic revealed:
“post-traumatic left floating shoulder with slow to unite distal clavicle fracture”.
No ongoing surgery is likely given his current level of disability.
Three months post injury:
“on direct questioning he does not seem bothered at his shoulder rather it is just stiffness and a lack of range that causes most of the issues”.
There was no other report from Dr Vrancic. Treatment has closed.
Dr Cole the claimant’s general practitioner provided the remaining medical coverage of progress of treatment.
In his final report dated 7 July 2023 he reported..”he has recovered from unrelated surgery and ..all is well”.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and 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 assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”
Accordingly, the insurer recommended the proposed settlement figure of $470,000 be approved.
The claimant also confirmed his desire that the settlement be approved by me.
Review of the evidence
I am satisfied the claimant sustained significant injuries in the motor vehicle accident and has made considerable recovery to date. He was unable to work for a period of three months and then returned to his employment with CASA on a graduated basis. Between 24 April 2023 to 7 May 2023 he worked “four hours a day on three days per week. On 8 May 2023 he returned to 4 hours a day on four days per week, increasing to six hours a day on four days a week from 22 May 2023 and returning to 7.5 hours a day on four days from 5 June 2023.
By 16 June 2023 he was certified fully fit to work full duties by Dr Cole. The claimant returned to work and has not had any further accident related time off since.
He was in receipt of sick leave payments from his employer for the whole period he was unfit to return to full-duties. He was not required to repay sick leave and reported he has a further “300 days sick leave available” to him, which he reported to me “I am unlikely ever to use”.
The medical information provided in this matter consisting of clinical records accord with the history of the injury and to the significant recovery the claimant has experienced since the accident.
The payslips provided evidence the claimant’s pre-injury earning capacity of $153,376 gross annually and $2,085 net per week. No claim was made for statutory weekly payments. The insurer has allowed $20,000 as a buffer for past entitlement.
When making an assessment of whether the amount of damages agreed to in relation to the claim for non-economic loss, I have regard to the pain and suffering the claimant endured as a result of his injuries in their initial stages, the pain and suffering whilst undertaking rehabilitation, the impact of the ongoing scarring to his knee and ear, the restriction in range of movement to his neck and the impact of his restriction of movement to his ankle and neck. The improvement of his restrictions over time as well as the ongoing limitations of his injuries upon him for the remainder of the claimant’s life. He is currently aged 69 years of age and is perfoming his daily tasks work and home based with minimal disruption now.
The claimant has an intention to retire in the next year or so and so the provision of future economic loss agreed upon with the insurer was a buffer of $100,000 on the basis the claimant may retire early as a consequence of the injuries sustained or require time off work where symptoms are aggravated necessitating rest.
The information before me is sufficient for me to determine the application before me.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) the settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is complaince with any of the requirements of the MAI Act or the Motor Accident Guidelines.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:
(i)sub-clause 7.389.1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount for non-economic loss agreed to in the settlement is $350,000; past economic loss of $20,000 was allowed as a buffer where no losses were claimed. Future economic loss was allowed in the sum of $100,000 for possible days off or early retirement. Noting the claimant’s intention to retire next year.
(ii)Sub-clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The insurer has not made any payments. The claimant will receive net proceeds of $470,000.
(iii)Sub-clause 7.389.3 requires the amount of any advanced payments made be specified. There had not been any advanced payments.
(iv)Sub-clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have reviewed the evidence relied upon by the insurer which included the hospital and clinical records, the report of treating surgeon and the reports of Dr Cole, general practitoner. Each support the extent of signiifcant injury at first instance and the considerable recovery achieved to date. The information available to me has been sufficient for me to determine the application before me, with sufficient knowledge of any long-term implications.
(c) Clause 7.399 of the Guidelines, requires me to consider the following:
(i)sub-clause 7.399.2: appropriateness – 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 claims assessor, taking into account the nature and extent of the claim and injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the evidence produced in this matter, I am satisfied that the amount allowed for non-economic loss agreed upon in the sum of $350,00 is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission having regard to the injuries suatined, the level of recovery to date the ongoing symptoms and the age of the claimant, and economic losses agreed to accord with the most likely circumstances but for the accident and the claimant’s earning capacity.
(ii)Sub-clause 7.399.3: understanding – the claimant understands the nature and effect of the proposed settlement is the finality of his claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the video preliminary conferences that in the event he took the settlement, he could not seek any further damages.
I am satisfied that the claimant was aware of his rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
CONCLUSION
I am satisfied the proposed settlement of $470,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of the claim and losses sustained by the claimant.
I am satisfied the claimant was aware he could seek legal advice and chose not to retain legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and his decision to accept it was of his own volition.
I am satisfied the claimant is aware that $0 will be deducted from the proceeds of settlement and that he will receive $470,000.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages in the sum of $470,000.
The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020;
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021, and
· Compensation to Relatives Act 1897.
0
0
0