AAI Limited t/as GIO v Burstow
[2022] NSWPIC 343
•7 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | AAI Limited t/as GIO v Burstow [2022] NSWPIC 343 |
| Claimant: | Colin Burstow |
| insurer: | AAI Limited t/as GIO |
| Member: | Susan McTegg |
| DATE OF DECISION: | 7 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; motorcycle accident; liability admitted; minimally displaced scapular fracture; mild tendinopathy rotator cuff; work as a courier and as a mechanic; no absence from work; past and future economic loss only; Held- impairment of earning capacity for heavy or repetitive work; settlement approved in the sum of $90,000 including past economic loss of $20,000; future economic loss of $70,000. |
| determinations made: | Settlement Approval Issued under section 6.23 of the Motor Accident Injuries Act 2017 1. This proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the MAI Act). 3. The proposed settlement complies with s 7.37 of the Motor Accident Guidelines. |
INTRODUCTION
On 22 September 2018 Mr Michael Burstow (the claimant) was taking a corner on his motorcycle on the Great North Road, Laguna. Another motorcyclist missed the corner and merged directly in front of the claimant resulting in a collision (the accident). Mr Burstow lay his bike down on his left side at approximately 60 km/h. He sustained a fracture of his left scapular and tendinous damage to the left shoulder.
The claimant has made a common law claim against AAI Limited trading as GIO (the insurer), the insurer of the at fault vehicle, for lump sum damages.
The insurer has accepted liability for the claimant’s common law claim for damages and has accepted that the claimant had non-minor injuries.
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $90,000. No claim was made for statutory weekly benefits so there will be no deductions from this sum.
The offer is calculated as follows:
· Future economic loss $20,000
· Non-economic loss $70,000.
Because the claimant is not represented by a lawyer, his settlement must be approved in accordance with the MAI Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 7 June 2022. Mr Burstow participated in person and the insurer was represented by Ms Rachael Miles.
JURISDICTION
The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020. I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
DOCUMENTS REVIEWED
In considering this application for approval I reviewed the following documents:
· insurer’s submissions dated 4 May 2022;
· Police Report Event Reference No. 133343301;
· Application for Personal Injury Benefits dated 10 October 2018;
· Application for Common Law Damages dated 4 July 2021;
· liability Notice dated 5 November 2021;
· MRI of the left shoulder dated 30 October 2018;
· questionnaire completed by Dr Santamaria dated 10 October 2018;
· clinical records of Rozelle Medical Centre;
· report of Dr Doron Sher dated 14 November 2018;
· report of Dr Powell dated 25 May 2020;
· certificate of fitness dated 24 September 2018;
· individual taxation returns for the years 2016 to 2020;
· profit and loss statements for Coltech for the years 2018 to 2020;
· profit and loss statement for Coltech from January to April 2022;
· sales summary – mechanical from 23 June to 30 April 2022;
· qualification certificates;
· ASIC and ABN searches for Coltech Couriers, Coltech Mechanical;
· email from the claimant dated 4 August 2021;
· email re offer of settlement from the claimant dated 1 February 2022;
· email from insurer and email in reply from claimant re settlement dated 16 March 2022;
· signed settlement agreement dated 16 March 2022, and
· correspondence with the claimant between 6 and 26 April 2022.
THE RELEVANT LAW
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%.
Section 6.23(2) and (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 7.37 of the Guidelines states I must be satisfied as to the following:
“(a) the proposed settlement satisfies 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 claims assessor, taking into 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 the proposed settlement and is willing to accept the proposed settlement.”
REVIEW OF THE EVIDENCE
The claimant is now 45 years of age and was 41 years of age at the time of the accident.
The claimant migrated from the United Kingdom in 2012. He is qualified as a master mechanic and personal training. He worked as a mechanic for Renault for 25 years in both the United Kingdom and in Australia.
The claimant was working as a self-employed courier at the time of the accident under the business name Coltech Couriers. Following the accident, the claimant registered a business and commenced trading as a mechanic under the business name Coltech Mechanical.
The claimant had no relevant pre-existing conditions although an MRI of the left shoulder subsequent to the accident disclosed the presence of advanced AC joint arthrosis but there is no dispute the left shoulder was asymptomatic prior to the accident.
Following the accident, the claimant attended John Hunter Hospital complaining of left shoulder pain. No fracture was disclosed by X-ray, although a rotator cuff tear was suspected.
The claimant underwent an MRI on 30 October 2018 with confirmed the following:
· minimally displaced scapular fracture;
· mild tendinopathy rotator cuff with no significant tear, and
· advanced AC joint arthrosis.
The claimant was referred to physiotherapy and attended a few times but did not ask the insurer to pay those costs.
The claimant was referred to Dr Sher, orthopaedic specialist. Dr Sher provided a report dated 14 November 2018 advising the injury would take about three months to settle. He advised he did not expect there to be any long-term consequences.
Dr Powell
Dr Powell, orthopaedic specialist assessed Mr Burstow at the request of the insurer. He provided a report dated 25 May 2020.
Dr Powell noted complaints of intermittent and aching pain at the posterior aspect of the left shoulder together with stiffness and restriction in range of movement. Dr Powell noted the claimant described crepitus in the shoulder with movement. Dr Powell noted the claimant was not receiving treatment and could perform all home and maintenance tasks. He reported his driving was unaffected. Dr Powell reported the claimant was working in his pre-injury role in a full-time capacity.
Dr Powell reported he was told the claimant continued to undertake a training programme which involved lifting heavy weights six days per week. However, in his email of 1 February 2022 Mr Burstow stated he has modified his gym programme to “reduce aggravation”.
Dr Powell noted on examination, that the claimant was “extremely well-muscled”. He observed that the shoulder was stable, albeit with palpable crepitus, mild restriction of range of movement and subtle disruption of the scapular rhythm. Dr Powell considered that the claimant had made a good recovery, albeit remained mildly symptomatic. He assessed 4% whole person impairment.
Dr Powell felt that the claimant was “mildly symptomatic” in the left shoulder but demonstrably capable of undertaking pre-injury duties as a courier. Whilst the claimant had worked with some “significant discomfort” on return to his pre-injury duties immediately after the accident, Dr Powell felt that this was likely to have continued for two to three months whilst the fracture healed.
Information received from Mr Burstow on 7 June 2022
The insurer noted there has not been any treatment requests since October 2019. I asked Mr Burstow about treatment. He informed me has undergone massage and needling treatment as needed but has not asked the insurer to pay for the treatment. He said he recently attended Sports & Spinal on three occasions over one month due to neck stiffness. He also informed me he had completed a Certificate 3 and 4 in Fitness and has some insight into how the body works. He has continued to undertake recommended exercises using bands to work on the mobility of his shoulder. He said he had always attended sports massages but since the accident there had been more focus on the shoulder.
Mr Burstow said he just “gets on with things”. He finds his right shoulder is painful when he lies on the floor, which causes difficulty when working as a mechanic. However, he has adapted so he can work around the shoulder problem.
In an email dated 1 February 2022 Mr Burstow said he had been having problems with his right knee. I asked Mr Burstow about his knee, pointing out there is no evidence of an injury to the knee in the accident. He said it was in fact the left knee and he underwent keyhole surgery last year. He stated following the accident he was hobbling for a time with associated knee pain but then it recovered. His doctor asked him if he had sustained an impact injury and he could only recall the accident. However, Mr Burstow understood there was no mention in the clinical records of injury sustained to either knee in the accident and that is why he has not asked the insurer to pay for any treatment to the knee.
At the time of the accident the claimant had been working in his courier business since 18 April 2018. Mr Burstow confirmed he did not take any time off work following the accident, he said he worked with his arm in a sling for a time and had some difficulty but just put up with it. He said prior to the accident he had ultimately intended to devote more time to his work as a mechanic because that is his passion. However, the courier work took off with the Pandemic and the mechanical work he now undertakes is generally building motor bikes for track work, which takes time.
Mr Burstow indicated he had sought legal advice, but he was not happy with the advice and had decided to proceed without legal representation. He said he wished to have the settlement approved so he could move on.
SHOULD I APPROVE THE SETTLEMENT
Past economic loss
The insurer has allowed a buffer of $20,000 for past economic loss.
The claimant summarised his claim for past economic loss as follows:
·“I could have picked up more courier work but haven’t lost any money from this to date;
·I would have started Coltech Mechanical earlier;
·I would be undertaking more mechanical work than [sic] I currently am.”
The claimant also asserts that he has “lost opportunities to take on additional work” as a result of the accident, as the courier industry has “boomed” since the COVID-19 Pandemic.
The injury has also impacted the claimant’s ability to work as a mechanic. As a mechanic the claimant “passes” on bigger mechanical jobs due to aggravation and generally only works on motorcycles.
The claimant’s individual taxation returns for the 2016 to 2020 financial years disclose the claimant declared the following income:
· 2016 – $72,573;
· 2017 – $76,723;
· 2018 – $67,685;
· 2019 – $62,021, and
· 2020 – $21,862.
The Individual Taxation Returns confirm the claimant drew a wage from Sydney Motor Holdings and AMR Motors for the 2016 to 2018 financial years and declared non-primary production income for the 2019 and 2020 financial years.
It is noted that the Profit and Loss Statements confirm the following with respect to the claimant’s business:
The claimant does not assert that the reduced profit over the period 30 April 2019 to 30 April 2020 is due to the accident. It seems that the reduced profit during that period may have been, in part, due to an increase in business expenses, including rent.
It is notable that there has been a significant increase in profits for the courier business over the period 30 April 2021 to 30 April 2022.
I am satisfied the allowance for past economic loss is appropriate where Mr Burstow has not taken any time off work as a result of the injury sustained in the accident and where the available records do not verify a specific loss referrable to the accident.
The buffer of $20,000 takes into account that the claimant may have been able to undertake additional work as a courier and/or work as a mechanic and that he has been restricted to some extent in his ability to work generally particularly in the period following the accident.
Future economic loss
Mr Burstow has a future working life of 25 years. He particularised his claim for future economic loss as follows:
“I’m seeking to make a claim for economic loss in the form of a buffer-the report of your doctor notes that I have aggravated asymptomatic degenerative changes resulting in 4% WPI. I note in the absence of the accident I wouldn’t be experiencing these symptoms at my age. I understand the condition will get worse over time… Given the above I’m concerned about my future as my job involves a significant amount of driving and constant lifting as a courier. I am also concerned that I’m restricted in my ability to perform work as a mechanic as this aggravates my condition. I note it had been my intention to undertake paid work as a skilled mechanic (20 years as master mechanic) however this never eventuated due to my injuries.”
In his email of 4 August 2021 Mr Burstow asserts he is concerned about his future because his job involves a significant amount of driving and constant lifting as a courier which aggravates his shoulder injury. He reports that his courier work requires him to deliver on average 100 large boxes weighing 10 to 25 kilograms (per store) to various outlets through Sydney. He estimates he travels 2,000 kilometres per week.
The insurer acknowledges that Dr Powell did not comment on the claimant’s capacity to work as a mechanic, only that he was capable of undertaking his pre-injury duties as a courier. The insurer concedes that Mr Burstow is likely to have difficulty with some of the duties of a mechanic which involved work or a repetitive or heavy nature.
On this basis the insurer allowed a global buffer for loss of earning capacity, assessed at $100 net per week x 753.6 (the multiplier for 25 years on the 5% tables) less a discount of 15% for the vissisitudes of life in the sum of $64,056, rounded up to $70,000.
In assessing future economic loss, I must have regard to the provisions of section 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in her most likely future circumstances.
I am satisfied that Mr Burstow continues to suffer from intermittent pain and stiffness as a result of the injury sustained to his left shoulder which impacts on his ability to undertake heavy and or repetitive work either as a courier or a mechanic.
I am satisfied on the available evidence that an allowance of $70,000 for the impairment of his future earning capacity is an appropriate figure for future economic loss.
Generally
I am satisfied that the claimant is aware of his right to have his causally related reasonable and necessary treatment expenses paid for the remainder of his life initially by the insurer and subsequently under the Lifetime Care and Support scheme.
Ms Miles confirmed that the insurer did not propose to notify Medicare of the settlement where it did not include any allowance for treatment expenses. However, she also agreed the insurer would be responsible for payment of any reasonable and necessary treatment expenses paid by Medicare and causally related to the accident as part of their obligation to pay statutory benefits in the unlikely event a charge is raised.
I am of the view that the sum of $90,000 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 the claim.
Conclusion
I find the timing requirements of section 6.23(1) of the MAI Act satisfied where two years have elapsed 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 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 the claimant.
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 that 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 section 6.23(2(b) of the MAI Act I approve the settlement of this claim for damages.
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