AAI Limited t/as GIO v Downs
[2023] NSWPIC 463
•12 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | AAI Limited t/as GIO v Downs [2023] NSWPIC 463 |
| CLAIMANT: | Peter Downs |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 12 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claimant sustained fracture of the T12 vertebral; retired insurance broker aged 76 years; claimant reported significant improvement; entitlement to non-economic loss only; claimant aware of rights to reasonable future treatment for the rest of his life; Held – proposed settlement within the range of likely potential damages if claim was to proceed to assessment; settlement just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under section 6.23 of the Motor Accident Injuries Act 2017. The proposed settlement is approved under section 6.23(2)(b) in the sum of $220,000 for non-economic loss damages. |
STATEMENT OF REASONS
INTRODUCTION
On 27 July 2021 Peter Downs, the claimant, was riding his electric bike along Albury Road in Holbrook. The insured driver disobeyed a Give Way sign and, as a result, collided with the claimant’s bike causing him to fall to the roadway.
Mr Downs sustained a serious back fracture. He also said he hit his head and was unconscious which is a contentious fact. He also suffered abrasions all over his body and bruising to his left leg.
Mr Downs has made a claim against AAI Limited t/as GIO, the insurer. The insurer has admitted liability for the claim for common law damages.
The insurer has accepted that Mr Downs had a non-threshold injury and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act), he is entitled to payment of reasonable treatment and care for the rest of his life for his accident-related injuries.
The insurer concedes Mr Downs has sustained a whole person impairment (WPI) greater than 10% and agreed to pay Mr Downs damages for non-economic loss.
Because Mr Downs is not legally represented, 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.
THE RELEVANT LAW
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 the requirements of the MAI Act or the Guidelines.
Clause 7.37 of the Guidelines states I must be satisfied that the proposed settlement is just, fair and reasonable and within the range of likely potential damages that would be assessed by a member taking into account the nature and extent of the claim having regard to the claimant injuries, disabilities, impairments, and losses sustained taking into consideration any deductions in the proposed settlement. Also, the claimant must understand the nature and effect of the settlement.
DOCUMENTS CONSIDERED
I have considered all the material contained in the ‘list of insurer documents’ which include but not limited to the insurer’s submissions, statement by the claimant taken by the insurer’s investigator, signed deed, medical records and reports.
REVIEW OF THE EVIDENCE
Mr Downs is a 76 year old single man who lives on his property at Lankeys Creek near Holbrook.He lives in a renovated railway carriage and is currently renovating buildings which have been relocated to his property from Victoria University.
He is a retired insurance broker and receives a Veteran Affairs pension. He has not suffered any loss of income.
The police and ambulance attended the scene of the accident. He was conveyed to Albury Wodonga Hospital and was discharged 2-3 days later. He was unable to care for himself so arranged to stay with a friend for a couple of weeks. Once he returned to his home, another friend stayed with him for a further 2-3 weeks before he had sufficiently recovered from his injuries to care for himself.
During the preliminary telephone conference, Mr Downs challenged the validity of the insurer’s submissions which included his age, his recovery from accident-related injuries and the suggestion he did not suffer a head injury, loss of vision since the accident, as well as the submission, he had no licence restrictions.
Although the insurer relies on the observations made by witnesses at the scene of the accident, the ambulance report does refer to a head strike. Mr Downs told me and the investigator he was unconscious and woke in the ambulance on the way to the hospital. He alleges since the accident, his vision has been impaired. He noticed this when operating the boom on his excavator and has adjusted the movement to compensate for the change in his depth of vision. He did acknowledge he was receiving left eye treatment before the accident.
The insurer referred to an eyesight test which they submitted certified Mr Downs as having meet the criteria for an unconditional licence. Mr Downs disputed this fact and told me during the 2019-2020 bush fires, he operated his 12 ton fire truck for 30 days non-stop. Since the accident, he is no longer permitted to drive this truck for commercial purposes and his licence has been downgraded to an eight ton truck.
THE PROPOSED SETTLEMENT
The insurer offered to settle Mr Downs claim for $200,000 representing damages for non-economic loss. Having agreed to accept this offer, Mr Downs was presented with a Deed which he signed. The insurer then referred their file to Mrs Gazdag to prepare the application for the Commission.
At the preliminary telephone conference, and after giving Mr Downs the opportunity to review the insurer’s submissions, he expressed a concern that as a result of a number of inconsistencies, he was not happy with the offer and suggested an increase would be a fair and reasonable settlement. I asked him, if Ms Gazdag was successful in seeking instructions to increase the amount by 10%, would he accept this increase. He replied “I would be very, very happy”.
I asked Ms Gazdag if she would approach the insurer and seek instructions to which she agreed. I adjourned the preliminary conference and advised both parties I would wait for a message from the insurer before proceeding with my decision.
On 7 September 2023, Ms Gazdag sent me a message which said “Please be advised the insurer and the claimant have entered into a further settlement agreement, that is, settlement of $220,000 representing damages for non-economic loss”.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied Mr Downs is aware of his right to have his reasonable treatment expenses paid for the remainder of his life.
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, his injuries, disabilities, impairments and losses sustained by Mr Downs.
I am satisfied Mr Downs is aware he can seek legal advice but does not wish to do so.
I am further satisfied Mr Downs understands the binding nature of the settlement and that he will be precluded from making any further claim for damages arising out of this accident. I am satisfied Mr Downs is willing to accept the proposed settlement.
Accordingly, pursuant to s6.23(2)(b) of the MAI Act I approve the settlement of Mr Downs claim for damages in the sum of $220,000.
0
0
0