AAI Limited t/as GIO v Amin
[2024] NSWPIC 521
•19 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Amin [2024] NSWPIC 521 |
| CLAIMANT: | Md Al Amin |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 19 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; proposed settlement; claimant 36 years old; liability admitted; economic loss damages only; claimant returned to full time work; Held – settlement approved; $90,000 is just, fair and reasonable, within the likely potential damages assessments taking into account the nature and extent of the claim. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $90,000. |
STATEMENT OF REASONS
INTRODUCTION
On 20 July 2022, Mr Md Al Amin (the claimant) was injured whilst driving his vehicle on the Princess Highway at the intersection with Spring Street in Banksia when the insured driver suddenly turned in front of him causing a motor crash.
Mr Md Al Amin made a claim against AAI Limited t/as GIO (insurer) the insurer of the at fault vehicle for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted, pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the Act), Mr Md Al Amin is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
Mr Md Al Amin and the insurer have reached agreement as to settlement of the claim for damages.
Because Mr Md Al Amin is not represented by a lawyer, his settlement must be approved in accordance with the Act.
The insurer has lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer and Mr Md Al Amin have agreed he is entitled to damages for past and future economic loss.
THE RELEVANT LAW
Approval of the settlement is required under s 6.23(2) and (3) of the Act and I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and Motor Accident Guidelines (Guidelines).
Clause 7.37 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 assessment for the claim were the matter to be assessed by a Member, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by Mr Md Al Amin, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) Mr Md Al Amin understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS
I have considered the documents provided with the insurer’s application including, but not limited to, insurer’s submissions, liability notice, clinical notes, medical certificates, scans, economic loss material, clinical notes and a medical report from treating hand and microsurgeon Dr Mark Nabarro, and communications between the parties.
REVIEW OF THE EVIDENCE
Mr Md Al Amin is 36-years-old.
As a result of the crash, the airbag was deployed in Mr Md Al Amin vehicle which hyperextended his thumb. He attended the emergency department at St George Hospital where he was X-rayed which showed no fractures.
He was referred to Dr Nabarro on 31 October 2022 with tenderness and swelling with crepitus over the 1st carpometacarpal (CMC) joint. The doctor referred Mr Md Al Amin for an MRI scan which revealed a “Tear of the volar oblique ligament right joint 1st CMC joint” and a fracture of the ulnar aspect of the first metacarpal head.
He underwent a synovectomy and flexor carpi radialis (FCR) stabilisation surgery and was fitted with a scaphoid cast for six weeks and a splint for a further eight weeks.
By 24 August 2023, Dr Nabarro reported Mr Md Al Amin was using his right hand for most activities and reported tightness with no pain in his thumb.
He has a good range of motion at the thumb with 24kg grip strength on the right, as opposed to 30kg on the left.
He did report niggling pain if he bumped his right thumb or when turning taps on and off. He told me he also found turning door handles difficult. Otherwise, he was coping well and continues with normal activities.
Mr Md Al Amin was working as a disability carer for three different employers at the time of the crash. In total, he was averaging 70 hours a week earning an average of $2,515.96 net per week.
After the crash, he was terminated by one of the employers but commenced at an alternate employer as an operations manager.
Mr Md Al Amin was totally unfit for work for four days with more days off due to the surgical procedure.
The insurer has paid statutory benefits to Mr Md Al Amin amounting to $21,163.61. The insurer has calculated his total past loss of earnings to be $34,716.06 which has been rounded up to $35,000.
The insurer submits Mr Md Al Amin’s most likely future circumstances but for the crash are that he would continue to work on a full-time basis as a disability carer. I agree with this submission. Mr Md Al Amin has worked in this field for many years and has been employed by a number of agencies over his years of employment.
He continues to work in this field, and I have no evidence to suggest he will not be capable to continue to work in the field of disability as a carer or in operations. He is working for around 71 hours a week and he told me he is confident he will continue to work in disability into the future,
Dr Nabarro opined in August 2024 that Mr Md Al Amin should regain reasonable function in his right hand but may experience some ongoing pain and stiffness with mild weakness of his right hand in the future.
Based on this opinion, the insurer proposed a buffer for future economic loss of $75 net per week which they calculated as $53,154.75. The insurer submits this has been rounded up to $50,000 which is incorrect as the amount has been rounded down.
PRELIMINARY CONFERENCE
Mr Md Al Amin participated in the preliminary conference. He clearly understood and accepted he was not entitled to damages for non-economic loss. He showed me his right hand and the scarring from surgery. He demonstrated difficulties when turning handles especially on door handles. However, he confirmed he did not experience any other disabilities and that he could undertake his employment duties without restriction.
He understood the statutory benefits paid by the insurer are to be treated as a credit to them which is deducted from the total sum which is $21,163.61.
He asked me about his entitlement to future reasonable treatment for accident-related injuries which I was satisfied he understood once an explanation was given.
SHOULD I APPROVE THE SETTLEMENT
Mr Md Al Amin understood he was entitled to legal representation but did not wish to engage a lawyer.
He further understood he was not entitled to damages for non-economic loss.
I am satisfied Mr Md Al Amin is aware the settlement finalises his entitlements to further common law damages under the Act.
I am satisfied that Mr Md Al Amin is aware of his rights to have his reasonable treatment expenses paid for the remainder of his life.
I am satisfied Mr Md Al Amin is happy with the amount of $90,000 and that he will receive in his hand $68,836.39.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Mr Md Al Amin.
I am satisfied Mr Md Al Amin understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising from the accident. I am satisfied Mr Md Al Amin is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of
Mr Md Al Amin’s claim for damages in the sum of $90,000.
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