AAI Limited t/as GIO v De Jong - [2024] NSWPIC 170

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as GIO v De Jong [2024] NSWPIC 170
CLAIMANT:	Marc De Jong
INSURER:	AAI Limited t/as GIO
MEMBER:	Terence Stern OAM
DATE OF DECISION:	9 April 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; damages claim; approval of settlement under section 6.23 of the Motor Accident Injuries Act 2017; claimant self-represented; struck by motorcycle; liability admitted by insurer; no entitlement to damages for non- economic loss; Reece v Reece and Varga v Galea applied; Held – settlement approved as just, fair and reasonable, and within the range of likely outcomes.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Having considered the claim in accordance with s 6.23 of the Motor Accident Injuries Act 2017, and noting the claimant and the insurer have proposed to settle the claim for the sum of $35,048.66, the Commission determines: 1. The proposed settlement is approved. 2. There are no deductions to be made by the Insurer.

STATEMENT OF REASONS

BACKGROUND AND ACCIDENT

The claimant was born in 1970.
On 28 October 2022, the claimant was riding his push bike in Evans Head when a motor vehicle collided with him. Liability has been accepted by the insurer.
The claimant fractured his left wrist, had a laceration to his right toe and an abrasion to his right elbow and had a shock.
Pre-accident the claimant was in good health and was working as a self – employed painter and sculptor.

THE INJURIES SUSTAINED

The Colles fracture required an open reduction and external fixation which the claimant underwent at Lismore Base Hospital.
Although the claimant said he struck his head in the accident, he did not lose consciousness and there was no evidence of any head injury.

REHABILITATION AND PHYSIOTHERPAY

The claimant has had extensive rehabilitation and physiotherapy.

RECOVERY

The claimant told me at the Preliminary Conference that he had recovered 90% of the function of his hand.

PAST ECONOMIC LOSS

Prior to the accident, the claimant was working 40 hours a week as painter and sculptor but was also in receipt of Centrelink benefits.
Although, residing in the Northern Rivers, the claimant exhibited at a gallery in Melbourne.
His most recent exhibition was in October 2019.
At the time of the accident, the claimant was preparing for his next exhibition on

31 October 2022, which was scheduled three days after the accident. He was unable to attend the exhibition and lost income he would have otherwise derived.

PROGRESS AFTER RETURN TO WORK

Two months after the accident, the claimant returned to painting on reduced hours, gradually increasing his hours and returning to 40 hours per week in or about August 2023.
On 26 October 2023, about a year after the accident, the claimant was certified by his GP as being fit for work.
The claimant’s tax returns apparently declared a loss for the period 2019 to 2022.

THE ORIGINAL OFFER

At the preliminary conference on 27 March 2024, the insurer’s representative Rachael Miles, referred to 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 170
Decision Date: 9 April 2024

CaseChat Overview and Summary

AAI Limited trading as GIO was the defendant in a motor accident case against De Jong. De Jong claimed damages for injuries sustained when struck by a motorcycle. The insurer admitted liability, and the matter proceeded to the court for determination of damages. The primary issue before the court was whether the settlement amount proposed between the parties was just, fair, and reasonable under the Motor Accident Injuries Act 2017. The court also had to consider the absence of entitlement to non-economic damages.

The court found that the principles outlined in Reece v Reece and Varga v Galea applied to the present case. These cases emphasise that a court must consider the likely outcome of the matter if it were to proceed to trial. Given the insurer's admission of liability, the court focused on the reasonableness of the settlement amount proposed. The court concluded that the settlement was within the range of likely outcomes, taking into account the nature and extent of the injuries, the admitted liability, and the overall circumstances of the case. Therefore, the settlement was deemed to be just, fair, and reasonable.

The court approved the settlement, ensuring that the claimant received appropriate compensation for the injuries sustained. The settlement amount was deemed to be a fair resolution of the dispute, reflecting the admitted liability and the injuries suffered by the claimant. The court’s approval was based on the comprehensive analysis of the evidence and the applicable legal principles.

Orders