AAI Limited t/as GIO v Benbow - [2024] NSWPIC 121

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as GIO v Benbow [2024] NSWPIC 121
CLAIMANT:	Gregory Benbow
INSURER:	GIO
MEMBER:	Shana Radnan
DATE OF DECISION:	13 March 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval in the sum of $950,000; 49-year-old male farrier by occupation; entitlement to non-economic loss agreed sum $325,000; fracture to thoracic T3-5 now healed; ongoing cervical spine pain; past economic loss is $155,000 and buffer for lost opportunity is $70,000; future economic loss; weekly loss $700.00 ongoing; Held – proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b).
DETERMINATIONS MADE:	CERTIFICATE Settlement approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement is in the sum of $950,000 is approved under s 6.23(2)(b) of the *Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Motor Accident Guidelines.*

STATEMENT OF REASONS

INTRODUCTION

On 16 July 2019, Gregory Benbow (the claimant) was driving his car when it was struck by the insured’s vehicle striking the back left of vehicle causing it to roll onto its roof at the intersection of Tocal Road and Largs Road at Bolwarra. He was transported to the John Hunter Hospital via ambulance.
The injuries sustained in this accident were:
·        thoracic compression fractures T3 – 25%;
·        thoracic compression T4-T5 – 20%;
·        right pneumothorax, and
·        cervical spine – soft tissue facet joint inflammation and aggravation of pre-existing degenerative changes.
Whole person impairment was assessed by Dr Rosenthal at the request of the insurer and in his report dated 14 December 2022 Dr Rosenthal assessed whole person impairment at 24%.
The claimant continued under the care of his general practitioner Dr Usman and spinal specialist Dr Abson.
On 18 July 2019 an application for statutory benefits was made.
On 1 July 2022 a common law claim form was lodged with the insurer and the insurer admitted liability on 11 October 2022.
The insurer conceded that the permanent impairment exceeded the statutory threshold under cover of letter dated 24 April 2023. The claimant is therefore entitled to damages for non-economic loss and the insurer has made provision for this in the settlement.
The injuries sustained in the accident have impacted on the claimant’s earning capacity as a farrier and he brings a claim for both past and future economic loss.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act) and relevant Guidelines.

JURISDICTION OF THE PERSONAL INJURY COMMISSION

The Personal Injury Commission (Commission) was established on 1 March 2021.
I am a Member of the Motor Accidents Division of the Commission authorised to determine the application.

THE RELEVANT LAW

Under ss 6.23(2) and (3) of the MAI Act before the Commission may approve the settlement of a claim for damages, it must be satisfied that:
“The proposed settlement complies with any of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 121
Decision Date: 13 March 2024

CaseChat Overview and Summary

In the case of AAI Limited trading as GIO v Benbow, the primary focus was on the approval of a settlement amount under the Motor Accident Injuries Act 2017. The plaintiff, a 49-year-old male farrier, sought approval for a settlement in the sum of $950,000. This amount was proposed to cover his non-economic loss, which was agreed upon at $325,000. The plaintiff had sustained a fracture to his thoracic spine at T3-5, which had healed, but he continued to experience ongoing cervical spine pain. Additionally, the settlement included $155,000 for past economic loss and a buffer for lost opportunity of $70,000. The court was required to determine if the proposed settlement was just, fair, and reasonable under the provisions of the Motor Accident Injuries Act 2017.

The legal issues that needed to be addressed involved the interpretation and application of the Motor Accident Injuries Act 2017. Specifically, the court had to ascertain whether the settlement amount appropriately reflected the injuries and their impact on the plaintiff's life, ensuring that it covered all aspects of loss, including non-economic, past economic, and future economic losses. The court also had to consider if the settlement adequately accounted for the plaintiff's ongoing pain and the potential for future economic loss, which was estimated at $700.00 per week indefinitely.

The court found that the proposed settlement of $950,000 was just, fair, and reasonable. The court acknowledged the plaintiff's injuries, including the healed fracture and ongoing pain, as well as the economic losses incurred and the buffer for lost opportunity. The court was satisfied that the settlement amount appropriately addressed all elements of loss, including the non-economic loss of $325,000, the past economic loss of $155,000, and the buffer for lost opportunity of $70,000. The future economic loss was also adequately accounted for at $700.00 per week. Consequently, the court approved the settlement under section 6.23(2)(b) of the Motor Accident Injuries Act 2017.

The final orders of the court approved the settlement of $950,000 for the plaintiff, confirming its appropriateness under the relevant legislative provisions. This settlement amount was deemed to cover all aspects of the plaintiff's loss, including non-economic, past economic, and future economic losses. The court's approval signified that the settlement was fair and balanced, reflecting the totality of the plaintiff's circumstances and the impact of his injuries.

Orders