AAI Limited t/as GIO v Harvey - [2024] NSWPIC 446

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as GIO v Harvey [2024] NSWPIC 446
CLAIMANT:	Nathan Harvey
INSURER:	AAI Limited t/as GIO
MEMBER:	Elyse White
DATE OF DECISION:	19 August 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; proposed settlement; claimant passenger; insured driver lost control on a dirt road, vehicle rolled down an embankment before hitting a tree; claimant required C6 to T1 cervical fusion and removal of fractured fragment impinging on nerve roots at C6/7; claimant a university student, working part-time with offer of full-time position on completion of his degree; Held – proposed settlement is just, fair and reasonable, within the likely potential damages assessments, taking into account the nature and extent of the claim; settlement approved.
DETERMINATIONS MADE:	CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $635,000.

STATEMENT OF REASONS

INTRODUCTION

On 5 December 2020, Mr Nathan Harvey (the claimant) was a front seat passenger in a 1998 Ford Fiesta. He was wearing a seatbelt. The vehicle was being driven by a friend of his. They were proceeding easterly along Namoi River Road which is a dirt track. The insured driver lost control of the vehicle which launched over an embankment, rolling multiple times before landing on its wheels, before colliding with a tree.
Mr Harvey has made a claim against AAI Limited t/as GIO (insurer) the insurer of the at fault vehicle for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted, pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the Act), Mr Harvey is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
Mr Harvey and the insurer have reached agreement as to settlement of the claim for damages.
Because Mr Harvey is not represented by a lawyer, his settlement must be approved in accordance with the Act.
The insurer has lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer and Mr Harvey have agreed he is entitled to damages for non- economic loss and to damages for past and future economic loss.

THE RELEVANT LAW

Approval of the settlement is required under s 6.23(2) and (3) of the Act and I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and Motor Accident Guidelines (Guidelines).
Clause 7.37 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 assessment for the claim were the matter to be assessed by a Member, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by Mr Harvey, and taking into account any proposed reductions or deductions in the proposed settlement, and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read AAI Limited t/as GIO v Harvey and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWPIC 446
Decision Date: 19 August 2024

CaseChat Overview and Summary

The case of AAI Limited trading as GIO against Harvey involves a dispute over the settlement of a claim arising from a motor accident. The claimant, a passenger in a vehicle driven by an insured individual, was involved in an accident on a dirt road. The driver lost control, causing the vehicle to roll down an embankment and hit a tree. The claimant suffered significant injuries requiring cervical fusion surgery and the removal of a fractured fragment impinging on nerve roots. The claimant was a university student working part-time with an offer of a full-time position upon completion of his degree. The Motor Accident Injuries Act 2017 governs the assessment and settlement of motor accident claims in the state. The legal issues the court had to decide were whether the proposed settlement was just, fair and reasonable, and if it aligned with the likely potential damages assessments, considering the nature and extent of the claimant's injuries and his future prospects.

The court examined the proposed settlement in light of the Motor Accident Injuries Act 2017, focusing on the severity and impact of the claimant's injuries. The court acknowledged the claimant's physical injuries, including the cervical fusion and nerve impingement, as well as the potential long-term implications for his career and earning capacity. The court also considered the claimant's pre-accident status as a university student with a part-time job and the offer of a full-time position. After evaluating the evidence and submissions, the court found that the proposed settlement was fair and reasonable, taking into account all relevant factors, including the likely potential damages assessments. The court was satisfied that the settlement appropriately reflected the claimant's injuries, future prospects, and the statutory requirements for a just and equitable resolution of the claim.

The court approved the proposed settlement, determining it was within the range of what could be expected given the nature and extent of the claimant's injuries and his future earning capacity. The settlement was considered to be fair and reasonable under the Motor Accident Injuries Act 2017, and the court's approval allowed the claimant to move forward with the resolution of his claim. The decision underscores the importance of considering both the immediate and long-term impacts of motor accident injuries when assessing and approving settlements.

Orders