AAI Limited t/as GIO v Harris
[2025] NSWPIC 293
•25 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | AAI Limited t/as GIO v Harris [2025] NSWPIC 293 |
CLAIMANT: | Harris |
INSURER: | AAI Limited t/as GIO |
MEMBER: | David Ford |
DATE OF DECISION: | 25 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 51-year-old motorcyclist struck by the insured motor vehicle at a T intersection; sustained avulsion fracture of right 5TH finger and right knee fracture of lateral femoral condyle with partial tearing of post cruciate ligament; claimant is a motor mechanic; short periods off work post-accident; employer has allowed him to also work as an advisor; possibility he may have a right knee replacement in the future sustained a non-threshold injury; insurer admitted liability; no entitlement to non-economic loss; claim for past and future economic loss; total amount of damages proposed is $150,000 less statutory payments made to the claimant; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b). |
DETERMINATIONS MADE: | 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 26 February 2024 Allan Harris (the claimant) was riding his motorcycle along the Pacific Highway near the intersection with River Rd at Wyong, when the motor vehicle being driven by the insured driver failed to give way and collided with the claimant’s motorcycle.
As a consequence of the accident, he sustained the following injuries:
· right 5th finger-avulsion fracture, and
· right knee fracture of lateral femoral condyle with partial tearing of post cruciate ligament.
Following the accident, he was taken to Wyong Hospital where X-rays were taken, and he was discharged. Subsequently he was referred to an orthopaedic surgeon Dr Michael Hunter. After further imaging tests, Dr Hunter recommended he undergo surgery in the form of an arthroscopy. This was performed on 22 October 2024. Dr Hunter reported the claimant was several weeks post-surgery and still had some inflammation. He underwent a cortisone injection and was recommended he participate in exercise Physiology.
The insurer wholly admitted liability on 22 January 2025 and conceded he sustained a non-threshold injury.
He was born in 1974 and will shortly be 51 years of age. At the time of the accident, he was employed as a mechanic and had commenced such employment with his employer two weeks prior to the accident. His average net weekly wage, at that time, was $1,405.05.
He returned to his employment two weeks post-accident, but thereafter, had periods of time off work for his surgery and periods off work when he had to attend medical appointments.
He has been able to remain working for his employer, but now in a dual role, working both as a mechanic and in a service role. The claimant's employer by letter 3 February 2025 confirmed they are content with his performance at work and advised his position at work is secure.
The insurer lodged on the portal a report from Dr Michael Hunter, orthopaedic surgeon, dated 29 April 2025. I note the following on Page 1 of his report:
“Allan returned today having had quite an impressive response from local anaesthetic instilled in the right proximal tib/fib joint. It certainly sounds like when the LA was working, he had minimal pain, unfortunately this was not long lived but the cortisone gave him some benefit and reduced some of his pain for a period of time. This certainly confirms the source of the pain. Obviously, it has not eradicated the pain completely and the pain will gradually return as the cortisone wears off. It sounds like the pain itself is a constant ache, if he bumps it, it flares up quite significantly for a period of time. It is certainly activity- related and with Allan’s activity level this obviously is an issue if he rests. If the pain settles today, we spoke about different modalities of treatment which could give him some benefit.
Today we spoke about surgical fusion of the joint being certainly a definitive way of eradicating his pain. I spoke briefly today about the surgical procedure, the timeout bracing and rest for 6 weeks after surgery
With respect to Allan’s knee, he does have severe patellofemoral degeneration with multiple cysts throughout the knee. The likelihood is that Allan will need a knee replacement in the next five years.”
The insurer arranged for him to be examined by Dr Robin Mitchell, and I refer to his initial report dated 13 January 2025. He has provided comprehensive report. I note the following on page 4 under the heading present symptoms:
“Mr. Harris said that he continues to have pain in his right knee with occasional swelling particularly over the lateral aspect below the patella and those symptoms would be aggravated with any running or kneeling. He is fully independent with respect to the usual personal activities of daily living or ADLs. He can help with the usual aspects of the normal domestic activities required within the home that he shares with his wife and their two children.”
On page 5, I note the following under the heading “Functional Capacity”:
“Mr. Harris said that he could manage the following activities and time frames before increasing symptoms would develop,
·Sitting for long periods without difficulty.
·Standing for up to 8 or 9 hours.
·Walking for 30 to 60 minutes.
·Lifting is not restricted by his symptoms.
·Driving for 90 minutes.
Prior to developing his symptoms, Mr. Harris was active with cycling and motorbike riding, however he is no longer physically active in any recreational manner.”
Dr Mitchell carried out a physical examination and considered various imaging reports. I note the following on page 8 of his report, under the heading “Current Capacity for Work”:
“Mr. Harris has a current capacity for suitable work that would avoid any aggravation of the reported symptoms and providing the following precautions were available, he should be able to manage such work on a full-time basis.
·Mr. Harris should avoid static standing by ensuring regular foot movement, whenever standing.
·Prolonged walking, particularly over uneven or sloping ground surfaces, should be avoided, as should frequent step climbing, kneeling or crouching actions.”
Dr Mitchell was of the opinion there was no indication he required any future treatment than possibly simple analgesic for anti-inflammatory medication to be used as required. He was also of the opinion, that although the claimant has a different role, with more work as a service advisor, he would have the capacity to manage his pre injury mechanical work with care, whenever carrying out prolonged kneeling or crouching He stated any difficulty with significant physical activities required in his role as a motor mechanic would only have been evident for a period of three or four months post-accident and two months after the further arthroscopy in August 2024.
I held the first preliminary conference on 24 March 2025. The claimant for damages for past and future loss of earnings. The insurer had proposed an offer of $44,192.64 less statutory payments. At that time, he advised me he was presently seeking further advice from his treating orthopaedic surgeon as to whether he should undergo further surgery to his right knee. A recent MRI scan had been obtained, as he had been suffering ongoing pain issues. At that stage, I advised the parties I was not prepared to approve the settlement since he is seeking further medical advice
I held a further preliminary conference on 25 May 2025, and I was advised the insurer had proposed a sum of $150,000 less statutory payments. I was also advised the insurer intended to obtain a supplementary report from Dr Mitchell. I advised stated my preliminary view was I should approve the proposed settlement, subject to reviewing the supplementary report.
The insurer then lodged on the portal I further report from Dr Mitchell dated 6 June 2025. On page 2 of his report, he states the following
“His ability to work would, in my opinion be the same as that I previously recommended and I note that his treating general surgeon [sic] had confirmed that he also thought
Mr. Harris could return to his preinjury role.Further surgery proposed which appears to be fusion of the right proximal tibia/fibula joint apparently based on some pain relief when the joint was injected with cortisone does not appear to be justified in my opinion.
I note that the fusion surgery was not the first recommendation from Dr Hunter but followed on previous recommendations for other surgical intervention which did not achieve the desired result. Furthermore, with the other pathologies in the knee joint that would not be addressed by such a fusion procedure, it would appear unlikely that there will be a significant benefit from surgery of that nature. It would not be regarded as an intervention that was commonly undertaken for a knee injury of the nature sustained”.
Accordingly, after further discussions between the parties the insurer has now proposed to resolve the matter for $150,000 less statutory benefits paid in the sum of $1,289.85. This results in a net settlement to the claimant in the sum of $148,710.15.
In relation to past economic loss, the insurer has allowed an amount of $1,405.05 for five days off work plus superannuation of $161.58 and $107.00 being the income tax paid on behalf of the claimant. This results in a sum of $1,674.00 in relation to past economic loss.
The insurer accepts the injury sustained by the claimant may affect him into the future particularly noting the claimant’s treating orthopaedic surgeon recent report commenting on the need for potential surgery, including fusion surgery and a eventually a possible knee replacement. In accordance with actuarial tables, they have allowed a sum of $148,326 for future loss of earnings.
in summary the insurer has offered to settle the damages claim for $150,000 less statutory benefits of $1,289.85 this results in a net settlement of $148,710.15.
The claimant advised me he wishes to accept the proposed settlement. I consider the settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
The claimant is not represented by a lawyer and accordingly the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act).
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.
I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14 (D) empowers me to determine those proceedings.
Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, considering the nature and extent of the claim.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
Section 6.23 (2) (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 any of the requirements of the MAI Act or the Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) 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 a, taking into the account the nature and extent of the claim and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
PRELIMINARY CONFERENCE ON 24 MARCH 2025
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 24 March 2025 and a further conference on 20 May 2025. The claimant participated in person and the insurer was represented by Melanie Gazdag.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for past economic loss and past superannuation in the sum of $1,674. Tax paid on statutory benefits is $107. Damages for future economic loss in the sum of $148,326. The net amount of settlement monies payable to the claimant is $148,710.15.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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