AAI Limited t/as GIO v Gunaranchithan
[2024] NSWPIC 246
•13 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Gunaranchithan [2024] NSWPIC 246 |
| CLAIMANT: | Veerasingham Gunaranchithan |
| INSURER: | GIO |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 13 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval in the sum of $70,000; 71-year-old male; past and future economic only; no entitlement to non-economic loss; injuries to right shoulder supraspinatus tendon partial tear; closed period past economic loss; buffer for future economic loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement approval 1. The proposed settlement is in the sum of $70,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 19 December 2017, Veerasingham Gunaranchithan (the claimant) was stationary in the line of traffic at the intersection of Parramatta Rd and Marsh Street, Clyde when the insured vehicle failed to stop and collided with the rear of the claimant’s vehicle.
The injuries sustained in this accident were:
· injury to neck;
· injury to back, and
· injury to right shoulder.
No police or ambulance were required to attend. The claimant attended his general practitioner when symptoms did not abate.
On 15 March 2018 an application for statutory benefits was made by the claimant.
On 6 December 2019 a common law claim form was lodged with the insurer and the insurer admitted liability on 3 March 2020.
Dr Ian Barrett diagnosed in his report dated 21 July 2020 soft-tissue injury to the cervical spine and soft tissue injury to the right shoulder causing or aggravating a partial tear of the right supraspinatus tendon. His opinion on whole person impairment was 2% for cervical spine and 2% for right shoulder.
Treatment consisted of analgesics and anti-inflammatory medication on an intermittent basis.
The claimant was able to return to work as an engineer with Ryde Council in the position of Stormwater coordinator on a graduated return to work covering a period of 2-3 months. This accorded with Dr Barrett’s assessment that he was fit to resume pre-injury duties.
The assessment of Dr Barrett was relied upon by the insurer in making the determination that the claimant was not entitled to non-economic loss.
The claimant was aware he could seek his own medical opinion and advised me that he did not wish to challenge Dr Barrett’s determination.
The claim was limited to past and future economic loss.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act) and relevant Guidelines.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021 and has the jurisdiction to determine the application.
I am a Member of the Motor Accidents Division of the Commission authorised to determine the application.
THE RELEVANT LAW
Pursuant to ss 6.23(2) and (3) of the MAI Act before the Commission may approve the settlement of a claim for damages, it must be satisfied that:
“The proposed settlement complies with any of the requirements of the MAI Act or the Motor Accident Guidelines.”
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
“• the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, 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;
· the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
· the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Preliminary conference on 10 April 2024
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held the first preliminary conference on 10 April 2024. The claimant appeared by video-link. The claimant participated in person and the insurer was represented by Erick Culala solicitor.
The settlement sum agreed between the parties is $70,000 broken down as:
· past economic loss – $30,000, and
· future economic loss – $40,000.
The claimant was asked to confirm his injuries and treatment received to date. It accorded with the submissions and medical evidence before me.
The claimant reported he had different calculations of economic loss and wished to further pursue this with the insurer. The parties were given a further 14 days to negotiate their respective positions.
Preliminary conference on 24 April 2024
The claimant confirmed he had produced some additional submissions and the insurer confirmed it did not change the basis of the initial offer of settlement. The claimant also advised he had taxation returns available to produce to the insurer and was of the belief he had already furnished the insurer with a copy.
The insurer confirmed it did not have copies and the matter was again deferred to enable the parties to double check their calculations.
At this stage the claimant also confirmed his understanding of the nature and effect of entering a settlement and advised if there was no change to the figure agreed of $70,000 he would be happy with the agreed sum in any event.
The claimant again advised he did not wish to seek legal representation and was entering into this agreement of his own free will.
Directions issued that the claimant was to produce the tax records he referred to the insurer and finalise their negotiations. The insurer upon receipt of this additional material was to advise if there was any alteration to the settlement sum agreed upon no later than 17 May 2024.
Email 8 May 2024
The insurer advised me that the parties had reviewed the additional taxation records and that there was no change to the settlement sum agreed to in the sum of $70,000 and that the parties wished for the application to be determined.
The insurer confirmed that there had been no statutory benefits paid to date and so the whole amount would be received by the claimant.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle which included the following:
Liability:
· application for statutory benefits dated 15 March 2018;
· liability notice dated 15 June 2018 for statutory benefits claim;
· application for common law damages dated 6 December 2019;
· liability notice dated 3 March 2020 for common law damages claim;
· particulars undated - document A7, and
· further particulars -document A8.
Treating medical records:
· MRI right shoulder scan -document A13;
· treating report Dr Piper orthopaedic surgeon – document A14;
· treating report Dr Kannangara consultant physician - document A14;
· Certificates of Capacity dated 30 May 2019, and
· clinical records For Health Wentworthville - document A12 dated
27 November 2023.Medico-legal reports:
·Dr Barrett dated 21 July 2020.
Economic loss material:
· Tax records 2015 to 2022 pre-filing reports;
· City of Ryde document A9, and
· Inner West Council document A10.
Settlement documents:
· offer of settlement dated 23 October 2023, and
· draft settlement agreement and release – page 180 of application bundle.
REVIEW OF THE EVIDENCE
Oral information from the claimant
The claimant confirmed the status of his health at the first preliminary conference held on
10 April 2024. He reported intermittent pain which was reduced by physiotherapy from time to time. He felt his right shoulder was “better” and relied on Voltaren gel and Panadol if his symptoms flared up. He complained of difficulty sleeping on his right shoulder and advised he tried to sleep on the other side, to enable better quality sleep.The symptoms to his neck and back have resolved. It is the right shoulder that remains problematic.
His symptoms currently did not impact on his work and when questioned as to how many days off he had taken for his accident related symptoms in the last six months, he replied “I think about 2 days off”.
When asked about how long he would be working but for the accident, he advised “I would like to continue for as long as possible”.
He stated, “I will probably continue for the next year or so and then see what happens.”
The impact of his initial injuries were greater upon him requiring rest and medication initially than they now present. Most days he feels fine now.
INJURIES
The claimant attended upon Dr Paramsothy on 21 February 2018 complaining of right shoulder pain and upper arm pain which was persisting since the accident. He was referred for scans. An Xray of his right shoulder was obtained the same day.
His doctor reported supraspinatus tendon tear, persisting pain and limited shoulder movement in an examination conducted on 24 October 2018.
A referral to Drs Piper and Kannangara was provided by his general practitioner. He attended upon Dr Piper on 14 March 2018.
The injury to the right shoulder was confirmed in the report of Dr Piper dated
14 March 2018, “a high grade partial tear of the supraspinatus tendon with 1cm retraction”.The report of Dr Kannangara confirms the diagnosis and opined that surgery is unlikely due to his age as patients over 60 were less likely to have a satisfactory outcome.
Having reviewed the medical evidence, including the clinical record of Dr Paramsothy and fine that his injuries have mostly healed apart from intermittent pain and restriction of movement to his right shoulder. The earlier complaints of neck and back pain have resolved.
This was confirmed in the insurer’s report of Dr Barrett that reported intermittent lower posterior cervical pain of short duration on 21 July 2020. There has been no further update of change in presentation to warrant further treatment.
I am satisfied that the claimant’s injury to his cervical spine does not cause current concern and the injury to his right shoulder does not provide a basis for permanent impairment exceeding 10% and so he does not qualify for non-economic loss.
ECONOMIC LOSS
Past economic loss
The claimant was working at the time of the accident as an engineer with Ryde Council. He had been working in the same position for 10 years. He changed positions in July 2018 as he took long service leave and outstanding annual leave. Between August 2018 and
December 2019 the claimant worked through an employment service on short term contracts as a “development engineer”. His annual earnings were approximately $130,000 plus benefits.On 5 December 2019 he took up a position with Inner West Council working 35 hours weekly he remains in this employment. He estimated earnings are $104,703.56 plus superannuation. The change in role was not accident related and his ongoing injuries were not an impact to the performance of his duties according to certification of his capacity by Dr Paramsothy.
From income records the parties were able to ascertain that the claimant’s net weekly earnings were $1,655 at the date of his accident and did not change whilst in the same position after the accident.
Whilst prefiling reports were produced at first instance and actual tax returns following the last preliminary conference held on 24 April 2024, the information did not alter the insurer’s calculations based upon a buffer. The claimant took leave and travelled in the interim and so economic loss was limited to a few months. The return to work on lighter duties also married up with the change of employer and position undertaken at Inner West Council.
I am satisfied that the losses could not be particularised by an exact weekly sum and the calculation of exact periods off work were not established. The proposition that past losses be calculated by a buffer inclusive of superannuation are proper in this situation where the actual time off was intermittent and blended with holidays and changed roles including short term contracts, The return to work on lighter duties did not alter the earning capacity of the claimant to any great extent as his earning capacity did not alter.
The claimant was unable to provide exact periods where he took time off work and it is on this basis that the parties determined a buffer would be appropriate.
I was advised that there were no statutory payments made and so there are no deductions to be made.
Upon review of economic loss material and the certificates of capacity, I am satisfied that the losses of $30,000 is within the range of damages had the matter been assessed by a Member of the Commission.
Future economic loss
Whilst the claimant has now returned to his pre-injury employment and has recently confirmed a full-time position in a new role as development engineer, there may be occasions where there is a flare up of right shoulder pain necessitates take time off work and it is anticipated this will be intermittent at best. When leave is taken for such reasons he will suffer a loss to his earning capacity.
Noting he has only taken two days off in the last six months and there were few days prior to that, the provision of a buffer for future loss of earning capacity is appropriate.
A buffer of $40,000 has been made for such ongoing loss to his earning capacity into the future. He is currently aged 71 years and has a remaining working life of two to five years on his own admission.
Noting his recovery and the limited impact on his earning capacity to date the buffer provides for the times when he may take time off to recuperate. It is likely to be occasional at best.
Whilst the opinion of Dr Barrett was that the claimant would have been unfit for a maximum of 10 days, the certificate of capacity provided by Dr Paramsothy dated 30 May 2019 certified fitness to work five days a week and 35 hours and has not been altered thereafter.
Review of clinical records show that the claimant rarely complains to his general practitioner of symptoms and has not required time off for his symptoms in the past three years. With this in mind the impact of his ongoing injuries will not be significant. The claimant’s recovery has been significant and the extent of time off in the last six month has been minimal. This confirms the ongoing impact into the future is likely to be minimal.
The allowance of a buffer for future economic loss inclusive of superannuation appears just, fair and reasonable and within the likely potential damages assessment for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the injuries, disabilities, impairments and losses sustained by the claimant as a consequence of the accident.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past economic loss accord with the evidence provided by the claimant as to his earning capacity post accident. I am satisfied that the amount allowed for both past and future economic loss accords with the most likely circumstances but for the accident. The amount agreed by way of a buffer for past and future economic loss 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 Commission, taking into account the nature and extent of the injuries and the full recovery made by the claimant.
The injuries sustained have in majority resolved. There is currently no ongoing treatment and recovery has been confirmed by his general practitioner’s clinical records indicating little reported ongoing complaints.
The past economic losses were supported by medical certificates of capacity for the period immediately post-accident to include a graduated return to work and periods of annual leave taken for overseas holidays. A final certificate of full fitness was dated 30 May 2019.
The claimant is aware that there are no deductions and he is to receive $70,000.
I consider the agreed settlement in the sum of $70,000 for past economic loss and future economic loss is just fair and reasonable and within the range of likely damages had the matter been assessed by a Member of the Commission.
CONCLUSION
I am satisfied the proposed settlement of $70,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of injuries and losses sustained by the claimant.
I am satisfied the claimant was aware he could seek legal advice but chose not to avail himself of legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant was willing to accept the proposed settlement and his decision to accept it was of his own volition.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the amount of $70,000.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
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