AAI Limited t/as GIO v Estate of the Late Arthur Mounter

[2025] NSWPIC 94

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

AAI Limited t/as GIO v Estate of the Late Arthur Mounter [2025] NSWPIC 94

CLAIMANT:

Estate of the Late Arthur Mounter

INSURER:

AAI Limited t/as GIO

MEMBER:

Hugh Macken

DATE OF DECISION:

19 March 2025

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; claimant died two years post-accident; assessment of non-economic loss post-accident to date of death; contributory negligence 50%; pedestrian hit by car; analysis CCTV footage; failure to keep a proper lookout; claimant put himself in position of danger; traumatic brain injury; cognitive changes impact on claimant’s capacity; fractured clavicle, ribs, and lung contusion; facial lacerations; ongoing back pain; Held – settlement approved.

DETERMINATIONS MADE:

CERTIFICATE

SETTLEMENT APPROVAL

Issued under section 6.23 of the Motor Accident Injuries Act 2017

·        The amount of the claim for damages is approved in the total amount of $75,000.

STATEMENT OF REASONS

INTRODUCTION

1. The Late Arthur Mounter was a 70-year-old man who suffered multiple injuries, including a severe traumatic brain injury, in a motor vehicle accident on 20 May 2021. He was a pedestrian struck by a car. Following the accident he was admitted to John Hunter Hospital where images of the brain noted multiple traumatic subarachnoid haemorrhages. He suffered multiple spinal fractures, multiple rib fractures, a fractured clavicle, a heart contusion and chest injuries.

2. Arthur Mounter died on 25 December 2023 some two and a half years after the accident. The claim for personal injuries has been continued by Karen Mounter and Tanya Duckworth on behalf of the Estate of the Late Arthur Mounter. The claim is one for the assessment of non-economic loss in respect to the pain and suffering and interference with activities of daily living suffered by Arthur Mounter between the date of the accident and his date of death.

3. The proposed settlement figure is $75,000 which is reflective of non-economic loss of $150,000 and a deduction of 50% for contributory negligence.

Liability

1. The police report states "about 2.23pm on Thursday 20 May 2021 a 69-year-old male was walking in a southerly direction between parked cars to cross Brook Parade Belmont to return to his motor vehicle. A black Mazda CX – 7 was travelling in an east direction at about 40km an hour in the 40km posted zone. At this time the Late Arthur Mounter has stepped from the kerb between two parked cars and impacted with the front near side of the insured vehicle.”

2. The statement from the insured driver states that "I would have been travelling between 20 and 30 km when I observed a short figure in my left peripheral vision at the same time or a fraction of a second before he collided with my vehicle. I did not have any time to take evasive action to avoid the impact as he just walked straight into the side of my car.”

3. The statement from the driver travelling in front of the insured driver confirms that the deceased went to step out onto the road from between two parked cars when “it looked like he had fallen more forward than someone who would be stepping out in front of a car.”

   
   

   AAI Limited t/as GIO (the insurer) obtained CCTV footage of the time of the accident and this confirms that the claimant emerged from between two cars when it was clearly unsafe to do so and sustained his injuries.

4. The insurer, having originally declined liability, ultimately agreed to a consent of a finding of 50% contributory negligence on the part of the claimant.

5. In my view this is an appropriate discount for contributory negligence. Mr Mounter was crossing between two parked cars where it was unsafe to do so, he did not use a pedestrian refuge island which was nearby, but he did not keep a proper lookout and ensure that he was not on the roadway in circumstances where there was a vehicle approaching, albeit at low speed.

6. This matter was originally listed for approval on 3 March 2025 at 10.30am. Mr Mounter’s executor and daughter Karen appeared with Tanya Duckworth. They indicated that they wished the matter to be resolved noting that non-economic loss was $100,000 which would mean the settlement figure was $50,000. I declined to approve it but noted that further material was being obtained by the insurer, and a review of the offer made by the insurer, noting the catastrophic injury suffered by Mr Mounter.

7. What is clear is following the accident Arthur sustained injuries, multiple fractures which no doubt caused him significant pain. Traumatic brain injury left him quite disabled. Report of

   
   

   Dr Tanya Kerr, Clinical Neuropsychologist dated 2 June 2022 states:

   “The severe traumatic brain injury sustained in the motor vehicle collision has contributed to cognitive changes that have significantly impacted on Mr Mounter’s capacity across a broad range of functional domain.”

8. Arthur was clearly troubled greatly by the fractures to his clavicle, ribs, his myocardial heart injury and lung contusion, he sustained facial lacerations and ongoing back pain. It is clear that the pain and discomfort and trauma suffered by the late Arthur Mounter was for a limited period of time. Additionally, there were some cognitive impairments which Mr Mounter suffered from which were developing and unrelated and pre-dated the motor vehicle accident.

9. In my view a figure of $150,000 is an appropriate amount for compensation for non-economic loss that is reasonably said to be in the range for quite tragic circumstances.

10. Noting that the amount of the deduction for 50% contributory negligence accords with a reasonable discount in the circumstances of this matter and noting the figure of $150,000, in my view, it is an appropriate allowance for economic loss.

11. I approve the proposed settlement between the parties noting that it will provide to the Estate of Arthur Mounter a figure of $75,000.