AAI Limited t/as GIO v Collins

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as GIO v Collins [2024] NSWPIC 588
CLAIMANT:	Sean Collins
INSURER:	AAI Limited t/as GIO
MEMBER:	David Ford
DATE OF DECISION:	21 October 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 52-year-old rider of a motorcycle involved in a collision with the insured motor vehicle; claimant sustained fractures to his left clavicle and scapula, fractured ribs, multiple abrasions and bruising to left arm, abdomen, lower back, neck, left ankle, left foot and right arm; insurer wholly admitted liability, conceded non threshold injury and also conceded entitlement to past and future economic loss; claimant is a plasterer by profession and has not been able to engage in either full time or part time employment since the accident; total amount of damages proposed is $400,000 less statutory payments and advances made to the claimant; Held – the proposed settlement is just, fair and reasonable; settlement is 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 20 February 2022 Sean Collins (the claimant) was riding his motorcycle along the New England Highway at East Maitland, when the driver of the insured motor vehicle, who was on his right, travelling parallel to him, suddenly turned left, colliding with the claimant’s motorcycle causing him to fall to the roadway.
Consequently, the claimant sustained fractures to his left clavicle and scapular, fractured ribs, an injury to the left hip, abrasions and bruising to his left arm, abdomen, lower back neck, left ankle, left foot, and right arm. He was taken to the emergency department of New Maitland Hospital for assessment. Imaging test confirmed the above-mentioned fractures. There were issues at the hospital regarding immediate surgery to the clavicle fracture, and accordingly, he was discharged with analgesia and a sling. He subsequently underwent an open reduction and internal fixation of the left clavicle on 19 March 2022. He then, after the surgery underwent physiotherapy, and later, exercise physiology.
The claimant was born in 1972 and is presently 52 years of age. At the time of the accident, he was working as a self-employed full-time plasterer. As a consequence of the injuries and ongoing disabilities sustained in the subject accident, he has not been able to return to this profession, and since the accident, has not been able to engage in either full time or part time employment.
The insurer admitted liability by letter dated 13 November 2023. The insurer has conceded a non-threshold injury and has also conceded he is entitled to damages for both past and future economic loss.
The insurer arranged for the claimant to be examined on a medico legal basis by Dr Robin Mitchell, occupational physician, and I refer to his report dated 11 August 2023. On page 3 under the heading “Current Capacity for Work” he states the following,
“Mr. Collins has, in my opinion, a current capacity for suitable work that would avoid any aggravation of the reported symptoms and, providing the following precautions were available, he should be able to manage such work on a full-time basis.
·        Mr. Collins should manage all physical activities below mid chest height and close to the body trunk, particularly if repeated or sustained in nature to avoid aggravating his symptoms.
·        It would be appropriate that frequent manual handling actions should be limited to 5 kg in force with respect to lifting, carrying, pushing, and pulling actions, undertaken with the left arm alone.
·        On an occasional basis up to 15 kg should be possible in the manner described above when using both hands together.”
On page 12 of his report, he states the following:
“He now has a capacity to return to suitable duties work as described above in the Current Capacity for Work section of this report on a full-time basis the relative or partial capacity with respect to manual handling task as it is as a consequence of the subject motor vehicle accident.
A vocational assessment and job seeking assistance would be helpful and are therefore recommended.”
The insurer also served a report from Work Focus Australia dated 17 May 2023 in which the author identified the following options as suitable occupations:
·        parking officer.
·        retail assistant, and
·        delivery driver.
I held preliminary conferences in this matter, initially on 5 July 2024, then 8 August 2024 and
6 September 2024 and finally on 10 October 2024. Initially, the insurer proposed to resolve the claim for the sum of $260,000 less statutory payments made and an advance payment, which at that stage, totalled $35,000. At that time, this proposed settlement would have resulted in the claimant receiving a net settlement of $166,301.25. As stated in my preliminary conference report dated 5 July 2024, I advised both parties I was not prepared to approve the settlement, as I was not persuaded the proposed settlement sum was appropriate in the circumstances of this claim.
I then allowed the parties a further period to continue settlement negotiations and at the preliminary conference on 10 October 2024, I was advised the insurer had now proposed to resolve the claim for a sum of $400,000 inclusive of statutory payments made in the sum of $58,698.75 and advance payments which now totalled $85,000. Therefore, the amount to be deducted from the agreed select monies is $143,698.75 which would result in the claimant receiving $256,301.25. The calculation of the proposed settlement money is as follows:
·        past economic loss  $140,000
·        future economic loss  $260,000
Total   $ 400,000 less statutory benefits
The insurer has set out detailed calculations in their further submissions dated
2 October 2024 regarding the amount to be allowed for past economic loss and have provided calculations from the years 2018 to 2022. The insurer recalculated the claimant's pre-injury average weekly earnings as $1,000 net per week. This is based on an average of the said financial years of 2018 to 2022 which amounts to $942.14 net per week, which has been rounded up to the sum of $1,000 net per week. The claimant, when questioned by me, was satisfied these calculations were reasonable in the circumstances. In relation to future economic loss, the insurer allowed a buffer of $260,000 being a loss of $550 net per week for the remainder of the claimant's working life, which represented a partial loss of earning capacity.
In relation to the claimant’s intention to return to work, he advised me at the preliminary conference, upon receipt of his settlement monies, he would begin to look for suitable light duty work as proposed by Work Focus. Work Focus identified three suitable vocations, sales assistant, united trade or hardware shop, meter reader and warehouse assistant. The claimant was agreeable with all the three suggested occupations and Work Focus identified multiple full-time roles in the Hobart area. Work Focus also noted that, more recently, the claimant’s motivation to apply for jobs had decreased, as he is awaiting settlement of his damages claim.
The insurer submitted he has capacity to undertake some form of work on a full-time basis. I agree with this submission, but also note the comment made by Dr Mitchell regarding the partial incapacity with respect to manual handling task.
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 10 OCTOBER 2024

The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a final preliminary conference on 10 October 2024. The claimant participated in person and the insurer was represented by Rachael Miles.

SHOULD I APPROVE THE SETTLEMENT

I am satisfied it is appropriate in this matter to assess total damages in the sum of $400,000 less statutory payments made to the claimant.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
The parties can agree, if they wish, to have my Reasons and Certificate to be de-identified.

[2024] NSWPIC 588

21 October 2024