AAI Limited t/as GIO v De Jong
[2024] NSWPIC 170
•9 April 2024
| 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 offer made by the insurer, which was $35,000 gross i.e. subject for payback of $10,451.34.
The claimant had agreed in principle to accept this offer but was informed that the approval of the Personal Injury Commission was required.
DISCUSSIONS AT THE PRELIMINARY CONFERENCE WITH RESPECT TO THE OFFER
At the preliminary conference at which the claimant was unrepresented I pointed out to
Ms Miles that the offer appeared to be at the bottom of the range.
I indicated to Ms Miles that I would consider an offer net of the payback as being within the range, if the insurer saw fit to increase its offer to that level.
On 28 March 2024, the insurer revised its offer to $35,048.66, net of deductions.
The claimant accepted this offer, subject to approval.
FORMULATION OF THE OFFER
The following is derived from the insurer’s submissions:
· past economic loss $15,000, and
· future economic loss $20,000.
Note that after the preliminary conference, the buffer was revised by being increased such as to give the net amount referred to above.
Given that the claimant made a virtually full recovery from his injury, there was no entitlement to damages for non- economic loss.
THE LEGISLATION AND LEGAL PRINCIPLES
In Reece v Reece (1994) 19 MVR 103; NSWCA 259, the Court took into account the position of a much younger woman with the same range of interests and the same injuries [15].
The Trial Judge had assessed non-economic loss damages at 33.33% of a most extreme case. The Court of Appeal held that, taking into account the age of the plaintiff, 33.33% was a wholly disproportionate assessment of the degree of the plaintiff’s loss, and assessed 22.5% of a most extreme case.
In Varga v Galea [2011] NSWCA 76, the plaintiff, who was 63 years at the time of Trial, had sustained significant injuries in a fall, and had ongoing incapacitating disabilities in his low back and left knee. The respondent conceded that he would never be able to return to the full-time workforce.
At paragraph [72], McColl JA said:
“Reece v Reece states the uncontroversial proposition that the Plaintiff’s age at the time of the assessment of damages is a relevant factor to the assessment of non-economic loss…”
At [74], McColl JA stated:
“The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a ‘most extreme case’. In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent: ‘Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables.’"
In making my decision I have considered the following legislation and Guidelines:
(a) the Personal Injury Commission Act 2020;
(b) the Personal Injury Commission Regulation 2020;
(c) the Motor Accident Injuries Act 2017 (MAI Act), and
(d) the Guidelines.
Section 6.23 of the MAI Act provides:
“6.23 Restrictions on settlement of claim for damages
(1) A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle is greater than 10%.
(2) A claim for damages cannot be settled unless –
(a) the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b) the proposed settlement is approved by the Commission.
(3) The Commission is not to approve the settlement of a claim unless satisfied the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Clause 7.37 of the Guidelines states:
“Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act;
(b) the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim were the matter to be assessed by the Commission, and 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;
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
I am satisfied that all these requirements have been met.
DETERMINATION
I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that he will be precluded from making a further claim for damages arising out of the motor accident but is entitled to ongoing treatment and care needs. I am satisfied he knew he was entitled to legal representation.
The proposed settlement is appropriate and complies with cl 7.04.2 of the Guidelines in that it is;
“just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a member of the PIC, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”
Accordingly, I approve the proposed settlement of $35,048.66.
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