AAI Limited t/as GIO v BCV
[2023] NSWPIC 54
•14 February 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | AAI Limited t/as GIO v BCV [2023] NSWPIC 54 |
| Claimant: | BCV |
| insurer: | AAI Limited t/as GIO |
| Member: | David Ford |
| DATE OF DECISION: | 14 February 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 46 old male pedestrian; struck by motor vehicle; sustained massive rotator cuff tear to right shoulder and medial collateral ligament (MCL) tear to left knee; entitlement to non-economic loss; claim for both 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 OF DETERMINATION 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 [redacted] August 2018 the claimant was walking across [redacted] Street Maroubra at the intersection with Maroubra Road, when the motor vehicle being driven by the insured driver turned into [redacted] Street from Maroubra Road and struck the claimant causing him to fall to the ground and sustain serious injuries. Liability is admitted and there is no allegation of contributory negligence.
The claimant was taken by ambulance to the [redacted] Hospital, was admitted and underwent a procedure which involved a reduction of the right shoulder.
He continued to have ongoing right shoulder pain and was referred for an MRI scan which was taken on 11 September 2018. The MRI scan showed a massive rotator cuff tear and the claimant was referred to an orthopaedic surgeon Dr Wade Harper.
Dr Harper reviewed the imaging and recommended surgical intervention. The claimant underwent an arthroscopic rotator cuff repair to his right shoulder on
23 September 2018.In regard to his knee he saw Dr Michael Solomon on 19 September 2018 and a medial cruciate tear was identified on the MRI scans and there was also bruising on the lateral tibial plateau.
He underwent further surgery on his right shoulder performed by Dr Harper and subsequently underwent an extensive period of physiotherapy. He ultimately regained strength in his right shoulder but has not regained full movement which has resulted in some weakness in his shoulder and he has been limited to no overhead type of work.
The claimant was born in [redacted] 1976 and is presently 46 years of age. At the time of the accident the claimant was due to commence employment with Sydney trains as a trainee train guard. This claim was previously referred to me for approval however, declined to approve the proposed settlement as I raised concerns regarding the assessment of his whole person impairment which had been undertaken on a medico legal basis by Dr Keller who had assessed the whole person payment at 7%. The insurer subsequently arranged for Dr Herald to assess whole person impairment and I refer to his report dated 3 November 2022. Dr Herald assessed the claimant as having 17% whole person impairment.
The insurer concedes the claimant was forced to give up work as a train guard which was a new career which he was trying to undertake when the accident occurred. In March 2020 the claimant commenced work in a new role as a casual metre reader with [redacted] working 25 to 30 hours per week. He continues to work for this employer.
The claimant advised me he is presently capable of carrying out his required duties as a meter reader but still suffers from pain and aching in his knee at the end of the workday. It is suffice to say he will never fully recover from his injuries sustained in the subject accident. The insurer concedes the claimant will have a reduced earning capacity for the remainder of his working life.
The insurer conceded the claimant is entitled to damages. The claimant does have a claim for non-economic loss as the injuries sustained by him in the subject accident do surpass the threshold to entitle him to such damages. The claimant has also sought damages for past and future economic loss and Fox v Wood (1981) CLR438.
10. The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the MAI Act). I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
11. The Personal Injury Commission (the 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.
12. 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.
13. 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.
14. The claimant confirmed he is capable of carrying out the day-to-day tasks required of him by his employer.
15. 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.
16. I am satisfied the claimant is aware of his right to have reasonable treatment expenses paid for the remainder of his life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter, the claimant may be transferred to ICARE who will be liable for ongoing reasonable treatment expenses.
17. 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
18. I find the timing requirements of s 6.23(1) of the MAI Act satisfied where it is now two years since the date of the accident. 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, the injuries, disabilities and impairments sustained by the claimant.
19. I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
20. 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.
21. I am satisfied the claimant is willing to accept the proposed settlement.
22. 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
23. Section 6.23 (1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
24. 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.
25. Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement certifies the timing requirements in s 6.23 (1) of the MAI Act;
(b) 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 the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
TELECONFERENCE 18 JANUARY 2023 The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 18 January 2023. The claimant participated in person and the insurer was represented by Ian Izzard.
26. The proposed deed of release was lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
27. I am satisfied it is appropriate in this matter to assess damages for non-economic loss in the sum of $275,000, past economic loss in the sum of $139,289.46 including superannuation and future economic loss in the sum of $262,200 including superannuation.
28. I confirm the insurer is entitled to deduct statutory wage payments paid to the claimant totalling $59,038.47.
29. Therefore, including the Fox v Wood component of $12,745, the claimant will receive a net settlement payment from the insurer in the sum of $630,196.53.
30. 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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