AAI Limited t/as GIO v Allman
[2023] NSWPIC 534
•9 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Allman [2023] NSWPIC 534 |
| CLAIMANT: | Gregory Allman |
| INSURER: | GIO |
| MEMBER: | David Ford |
| DATE OF DECISION: | 9 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 59-year-old motorcyclist injured in a collision with insured motor vehicle; sustained displaced of the right ankle; injury to the right hand; abrasions to the left shin, underwent surgery being an open reduction and internal fixation of the right ankle fracture; several periods off work; claimant now working on a casual basis at reduced hours; insurer conceded claimant had sustained a non-threshold injury; liability admitted; claimant is employed as an optical dispenser; no entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b). |
| 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 15 November 2019 Gregory Allman (the claimant) was riding his motorcycle along Pacific Parade at Lennox Head when the insured motor vehicle, which was ahead of the claimant and parked at the side of the road, suddenly commenced to make a U turn directly in front of the claimant and a collision occurred between the claimant’s motorcycle and the insured vehicle. The claimant’s motorcycle then ricocheted across the road into another motor vehicle.
As a consequence of the accident, he sustained a displaced fracture of the right ankle, injury to his right hand, abrasions to the left shin. He was transported by ambulance to Lismore Base Hospital where he was admitted and underwent surgery, being an open reduction and internal fixation of his right ankle fracture. He was required to wear a moon boot for six to eight weeks and underwent 20 sessions of physiotherapy to assist mobilising his ankle. Subsequently on 28 April 2021 the inserted plate and screws were removed from his right ankle.
The insurer wholly admitted liability on 30 September 2022. The insurer has conceded he sustained a non-threshold injury,
The claimant was born in 1963 and is presently 59 years of age. At the time of the accident, he was, and still is, employed as an optical dispenser with Specsavers at Ballina. He was employed on a casual basis earning $804 net per week, as determined by the insurer. Following the accident, he was unfit for employment until the 16 December 2019, whereupon over the next few months, he returned to work on reduced hours. Ultimately after 11 May 2021, he returned to his employment after various periods of absence but reduced his working hours to three days per week.
At the teleconference, he advised he can cope with working three days per week, but believes it is not possible for him to return his pre accident working schedule of four days per week.
The insurer arranged for him to be examined on a medico-legal basis by Dr Simon Kinny, orthopaedic surgeon, and I refer to his report 10 January 2023. He carried out a physical examination of the claimant and on page 2 of his report, I note the following under the heading Current Symptoms
“Mr Allman reports ongoing pain from the right ankle with activity. He has ongoing aching from the ankle with prolonged standing which he states can be up to half a day continuously with work duties, he has no pain when not weight bearing, He has discomfort with uneven ground, descending stairs but not ascending them. He has no pain at night. He can walk several kilometres on flat level ground if he chooses to for fitness. He now swims 10 kilometres per week. Occasionally, he takes nurofen, mainly after he goes sailing. He is not on routine medication otherwise.”
Dr Kinny was of the opinion the fracture had resolved to a solid bony union in anatomical position. The sprain injury of the hand had resolved over a period of some months with non-operative management. He notes the claimant undertook reduced hours in terms of workplace duties for some time between the period when he elected to return to work at his current work activity level. He opined this was entirely due to the accident and not to any other cause. Dr Kinny assessed the claimant as having a whole person impairment of 6%. The claimant acknowledged he is not entitled to damages for non-economic loss.
The insurer has proposed to resolve the matter for $125,250.42 less statutory benefits paid in the sum of $10,250.42. This results in a net sum to the claimant of $115,000. The calculation of the proposed settlement is as follows.
· non-economic loss nil
· past economic loss(incl.super) $48,293.52
· future economic loss $76,956.90
Total $ 125,250.42 less statutory benefits in the sum of $10,250.42, results in a net settlement of $ 115,000.
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 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, 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 29 SEPTEMBER 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 29 September 2023. The claimant participated in person and the insurer was represented by Brooke Shields.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for past economic loss and past superannuation in the sum of $48,293.52. Tax paid on statutory benefits is $395. Damages for future economic loss as calculated on an actuarial basis in the sum of $76,956.90 The net amount of settlement monies payable to the claimant is $115,000.
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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