AAI Limited t/as GIO v Francesco
[2024] NSWPIC 572
•9 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Francesco [2024] NSWPIC 572 |
| CLAIMANT: | Frances De Francesco |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 9 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Surgical procedures; insurer seeks credit for pre-injury average weekly earnings (PIAWE); calculation of past economic loss; part time employment; no capacity to return to work; physical and psychological injuries; improvement in condition; future economic loss; assumptions as to most likely circumstances; consideration of medical material; improvement in condition; claimant’s strong preferences for settlement approval; Held – the amount of the claim for damages is approved in the total amount of $125,000. |
| 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 $125,000. |
STATEMENT OF REASONS
INTRODUCTION
THE CLAIMANT IS A 69-YEAR-OLD WOMAN WHO WAS INJURED IN A MOTOR VEHICLE ACCIDENT ON 8 JANUARY 2021. SHE WAS FRONT SEAT PASSENGER WHEN THE INSURED’S VEHICLE CROSSED ONTO THE WRONG SIDE OF THE ROAD AND STRUCK THE FRONT PASSENGER SIDE OF THE VEHICLE IN WHICH SHE WAS TRAVELLING. HER AIRBAG DEPLOYED AND SHE SUFFERED MULTIPLE FRACTURES TO HER LEFT HAND. THESE INCLUDED TWO FRACTURES TO THE SECOND AND THIRD METACARPAL BONES AND FRACTURES TO HER INDEX FINGER, RING FINGER AND DISTAL RADIUS. SHE WAS ADMITTED TO NOWRA HOSPITAL, ST GEORGE HOSPITAL AND SYDNEY HOSPITAL FOR SOME WEEKS FOLLOWING THE ACCIDENT AND HAS UNDERGONE SURGERY TO HER LEFT HAND TO INSERT PINS AND SCREWS AT THE SITE OF HER FRACTURES. THIS HARDWARE REMAINS IN PLACE AND SHE WILL SHORTLY BE UNDERGOING FURTHER SURGERY TO HAVE THEM REMOVED.
THE PROPOSED SETTLEMENT FIGURE IS $125,000 WHICH INCLUDES PAYMENTS MADE BY THE INSURER OF $38,442.69 WHICH WILL LEAVE THE CLAIMANT $86,577.31 CLEAR OF THESE PAYMENTS. THE COMPENSATION HAS BEEN CALCULATED AS AN ALLOWANCE OF $100,000 FOR PAST ECONOMIC LOSS AND A BUFFER OF $25,000 FOR FUTURE ECONOMIC LOSS. IT IS IMPORTANT TO SAY AT THE OUTSET THAT THE CLAIMANT WAS VERY EMPHATIC THAT SHE IS ABSOLUTELY CERTAIN THAT SHE WISHES TO ACCEPT THE OFFER TO HAVE THE SETTLEMENT APPROVED AND MOVE FORWARD WITH HER LIFE WITHOUT SEEKING TO FURTHER VENTILATE ANY POSSIBLE ENTITLEMENT TO COMPENSATION FOR NON-ECONOMIC LOSS NOTING, AS IT WOULD, FURTHER DELAYS, MEDICAL TREATMENT AND ONGOING UNCERTAINTY IN RESPECT TO THE OVERALL RESOLUTION OF HER MATTER.
DOCUMENTS CONSIDERED
THE INSURER HAS UPLOADED SOME 800 PAGES OF DOCUMENTS WHICH CONSISTS PRIMARILY OF CLINICAL NOTES AND TREATMENT NOTES FROM PEOPLESENSE BEING THE PROVIDER OF HER PSYCHOLOGICAL TREATMENT. ADDITIONALLY, THE INSURER HAS OBTAINED MEDICO-LEGAL REPORTS FROM DR R. MITCHELL DATED 11 NOVEMBER 2021 AND DR W. MASON DATED 8 MARCH 2024. THE REPORT OF DR R. MITCHELL, SOME 10 MONTHS POST-ACCIDENT, NOTES THE FRACTURES TO HER HAND AND THEIR IMPACT ON HER BUT NOTES THAT THE CLAIMANT DOES HAVE A CAPACITY FOR SOME TYPE OF EMPLOYMENT ALBEIT ON REDUCED HOURS AND REDUCED DAYS WITH SOME FUNCTIONAL RESTRICTION.
THE REPORT OF DR W. MASON DATED 8 MARCH 2024 DEALS WITH THE CLAIMANT’S PSYCHIATRIC INJURY. HE IDENTIFIES A WHOLE PERSON IMPAIRMENT OF 7% CONSEQUENT ON DIAGNOSIS OF POST-TRAUMATIC STRESS DISORDER. HE NOTES:
“SHE HAS HAD APPROPRIATE TREATMENT, AND THE INTENSITY OF HER SYMPTOMS IS NOW SIGNIFICANTLY REDUCED.”
THIS WAS CONFIRMED BY THE CLAIMANT DURING THE ASSESSMENT CONFERENCE. THAT IS, THAT SHE IS MAKING A GRADUAL RECOVERY IN RESPECT TO THE SIGNIFICANT PSYCHOLOGICAL TRAUMA WAS A CONSEQUENCE OF THE MOTOR VEHICLE ACCIDENT.
THE CLAIMANT IS A REMARKABLE WOMAN WHO HAS SHOWN GREAT STRENGTH IN DEALING WITH VERY SIGNIFICANT PHYSICAL AND PSYCHOLOGICAL INJURIES. SHE WAS WORKING IN HER HUSBAND’S ACCOUNTANCY PRACTICE ON A PART TIME BASIS AT THE TIME OF THE ACCIDENT AND HAS NOT RETURNED TO WORK SINCE. THIS IS NOTWITHSTANDING THAT HER HUSBAND CONTINUES TO OPERATE THE ACCOUNTANCY PRACTICE AND IT HAS A NUMBER OF STAFF WHO CURRENTLY PERFORM THE DUTIES WHICH THE CLAIMANT PREVIOUSLY PERFORMED. THAT SAID, THE MEDICAL MATERIAL AND INDEED THE CLAIMANT, SUPPORTS THE INSURER’S CONTENTION THAT SHE HAS A RESIDUAL WORKING CAPACITY NOTWITHSTANDING THAT SHE HAS NOT RETURNED TO WORK. AT THE ASSESSMENT CONFERENCE THE CLAIMANT AGREED THAT HER TREATING DOCTOR, DR VAN HUFFELL HAD RECOMMENDED THAT SHE SEEK TO RETURN TO SUITABLE DUTIES AT LEAST ON A PART TIME BASIS. FOLLOWING THIS AND NOTING THE CLAIMANT’S SIGNIFICANT DIFFICULTIES, BOTH PHYSICAL AND PSYCHOLOGICAL, SHE DID NOT RETURN TO WORK AND HAS NOT RETURNED TO WORK SINCE THE ACCIDENT. WHETHER THE CLAIMANT WILL BE IN A POSITION TO RETURN TO WORK REMAINS TO BE SEEN. SHE DOES HAVE A CAPACITY TO WORK CERTAINLY ON A PART TIME BASIS WHICH WAS HER WORK CIRCUMSTANCES AT THE TIME OF THE ACCIDENT.
I CONCUR WITH THE INSURER’S CALCULATION IN RESPECT TO PAST ECONOMIC LOSS. THE ALLOWANCE INCLUDES HER FULL PRE-ACCIDENT EARNINGS FOR SOME 2 YEARS POST-ACCIDENT AND THEN SLIGHTLY REDUCED EARNINGS TO REFLECT HER CAPACITY FOR SOME TYPE OF EMPLOYMENT. I ACKNOWLEDGE THIS IS SOMEWHAT OF AN INEXACT SCIENCE BUT CONCUR WITH THE INSURER THAT IT IS AN APPROPRIATE BASIS FOR CALCULATING PAST ECONOMIC LOSS NOTING THAT AT LEAST IN THE LAST YEAR OR TWO SHE DOES HAVE A RESIDUAL EARNING CAPACITY.
THE ALLOWANCE FOR FUTURE ECONOMIC LOSS OF $25,000 IS, IN MY VIEW, A RELATIVELY MODEST SUM. THAT SAID, IT OUGHT TO BE NOTED THAT THE CLAIMANT MAY YET RETURN TO SOME TYPE OF EMPLOYMENT, ALBEIT ON A REDUCED BASIS, AND COULD REASONABLY SAID TO BE IN THE TWILIGHT OF HER EMPLOYMENT YEARS IN ANY EVENT NOTING SHE RECENTLY CELEBRATED HER 69TH BIRTHDAY.
THERE WILL CERTAINLY BE TIMES WHEN SHE WOULD HAVE NO CAPACITY FOR WORK NOTING THAT SHE WILL NEED TO UNDERGO FURTHER SURGERY WHICH WILL, HOPEFULLY, IMPROVE THE STRENGTH AND DEXTERITY OF HER LEFT HAND. SHE HAS ALSO EXPRESSED THE INTENTION TO WORK HARD AT HER PSYCHOLOGICAL RECOVERY PARTICULARLY NOTING THAT ANY ANXIETY AROUND THE RESOLUTION OF THIS CLAIM WILL BE BEHIND HER. NOTING THE CIRCUMSTANCES, TOGETHER WITH THE UNCERTAINTY IN RESPECT TO THE CLAIMANT’S MOST LIKELY PRE-ACCIDENT EMPLOYMENT CIRCUMSTANCES, I CONCUR THAT A BUFFER OF $25,000 FOR FUTURE ECONOMIC LOSS IS APPROPRIATE.
IT OUGHT ALSO BE NOTED THAT THE CLAIMANT IS NOT GOING TO BE FURTHER INVESTIGATING HER ENTITLEMENT TO NON-ECONOMIC LOSS. IN RESPECT TO THE LEFT HAND, SHE WOULD NEED TO ESTABLISH THAT SHE HAS AN IMPAIRED FUNCTION OF IN EXCESS OF 18% OF HER HAND SO AS TO GIVE RISE TO AN ASSESSMENT OF WHOLE PERSON IMPAIRMENT OF IN EXCESS OF 10%. IT MAY WELL BE THAT THIS COULD NOT BE ASSESSED UNTIL AFTER THE SURGERY TO REMOVE THE HARDWARE IN ANY EVENT. IT IS, ON BALANCE, UNLIKELY THAT SHE WOULD EXCEED THE 10% WHOLE PERSON IMPAIRMENT IN RESPECT TO PHYSICAL INJURIES AND SO I DO NOT CONSIDER THIS OUGHT TO BE AN IMPEDIMENT TO THE APPROVAL OF THIS SETTLEMENT FIGURE.
10. IN RESPECT TO THE PSYCHOLOGICAL INJURIES SHE SUSTAINED I NOTE THESE HAVE BEEN DEALT WITH FAIRLY COMPREHENSIVELY IN THE VERY RECENT REPORT OF DR W. MASON DATED 8 MARCH 2024 WHO DETERMINED A WHOLE PERSON IMPAIRMENT OF 7%. NOTING THE IMPROVEMENT THAT THE CLAIMANT DESCRIBED AT THE ASSESSMENT CONFERENCE AND NOTING THAT THE EXTENSIVE MATERIAL GENERALLY SUPPORTS A CONTENTION OF SIGNIFICANT IMPROVEMENT IN HER PSYCHOLOGICAL FUNCTIONING I ALSO AM OF THE VIEW THAT THE CLAIMANT WOULD BE UNLIKELY TO EXCEED 10% WPI ON PSYCHOLOGICAL GROUNDS ALTHOUGH, AS DR MASON MAKES OUT, IT WOULD BE CLOSE.
11. MOST TELLINGLY THE CLAIMANT WAS ABSOLUTELY EMPHATIC THAT SHE WISHES TO HAVE THIS MATTER FINISHED, CLOSED AND PUT BEHIND HER. ACCORDINGLY, AND NOTING THE OBSERVATIONS I HAVE MADE IN RESPECT TO THE CALCULATION OF BOTH ECONOMIC LOSS AND THE MATERIAL ADDRESSING WHOLE PERSON IMPAIRMENT I APPROVE THE PROPOSED SETTLEMENT BETWEEN THE PARTIES.
LEGISLATION
12. In making this decision I have considered the following legislation and guidelines:
· Motor Injuries Act 2017, and
· Motor Accident Injuries Regulation 2017.
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