AAI Limited t/as GIO v Harvey
[2024] NSWPIC 446
•19 August 2024
| 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
(b) Mr Harvey understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS
I have considered the documents provided with the insurer’s application including, but not limited to, insurer’s submissions and supplementary submissions, police and ambulance reports, operation reports and clinical notes, medical certificates, Benchmark progress reports, payslips, a report from surgeon Honorary Associate Professor Phil Truskett, and communications between the parties.
REVIEW OF THE EVIDENCE
Mr Harvey is now 22 years old. He was a university student at the time of the crash.
He does not recall the circumstances of the accident as he was unconscious for a period after the crash. He was able to get out of the vehicle as the driver was trapped. He alerted a passerby, and the police and ambulance attended the scene.
He was conveyed by ambulance to Tamworth Hospital. He complained of pain and numbness in his left shoulder and arm before he was diagnosed with a fractured neck.
The following day he was transferred to Royal North Shore Hospital (RNSH) and placed under the care of Dr Randolph Gray.
Two days after the crash, Dr Gary performed a C6 to T1 cervical fusion. He remained in hospital for 10 days. However, he continued to experience persisting left arm symptoms with pins and needles.
He was readmitted on 25 December 2020 to RNSH where further imaging revealed impingement of a bony fragment on the left C8 and C7 nerve roots.
Dr Gray says he arranged for Mr Harvey to return “… to theatre on 28 December 2020 where a left C6/7 laminoforaminotomy and removal of fractured fragment impinging on these nerve roots”.
He remained in hospital for approximately three weeks before undergoing physiotherapy and rehabilitation.
Although Mr Harvey takes no medication and only rarely attends his general practitioner, he scores ongoing pain in his neck and left shoulder 6/10 particularly when active. He can no longer play contact sport but otherwise describes a normal lifestyle.
At the time of the crash, Mr Harvey was a full-time student at Macquarie University studying commerce and economics. His injuries occurred during the university recess. He was working part-time at McDonalds and worked as a part-time strata manager assistant.
He told me he was on a youth missionary outing in the Tamworth area when the crash occurred.
Before the accident, apart from playing rugby union, he lived a sedentary lifestyle. He was born in the country. When he was young his family moved to Sydney where he continues to live with his mother.
Mr Harvey completed Year 12 at Ryde College before enrolling in an engineering degree at Sydney University. He completed one semester before transferring to Macquarie University.
After the crash, Mr Harvey did not return to McDonalds and took three months off from the strata management position before applying for a position with Grant Thorton, an accounting firm where he works part-time while completing a double degree. He told me he will transfer to full time employment once he completes his studies.
PROPOSED SETTLEMENT AND TELECONFERENCE
On receipt of the application of the proposed settlement agreement, I reviewed the documentation. Apart from treating medical evidence, there was no opinion from a medical expert. I raised this with the parties before the preliminary conference. The insurer arranged for Mr Harvey to be examined by A/Prof Truskett. A consultation took place on 29 July 2024 and his report is dated the same date.
Associate Professor Truskett listed Mr Harvey’s injuries as soft tissue injuries to his left shoulder and cervical fracture necessitating a C6 to T1 fusion. The doctor noted some persisting sensory deficit of his left C8 upper limb distribution. The doctor assessed whole person impairment combined to 26%.
Associate Professor Truskett opined he can perform his pre-accident employment and his current employment as an accountant in the financial industry.
During the preliminary conference held with Mr Harvey and Mrs Gazdag, the insurer’s representative, I suggested the amount proposed for non-economic loss, $300,000, was insufficient considering the nature and extent of the claimant’s injuries and his young age.
Mrs Gazdag asked for time to seek instructions and after a couple of days, an amended proposal was submitted which was executed by Mr Harvey which increased the amount to $375,000 for non-economic loss.
At the time of the crash, Mr Harvey was earning approximately $225 per week with the strata firm and $132 with McDonalds. He was totally impaired to work from 5 December 2020 to
10 April 2021 noting he did not return to his employment with McDonalds. The amount proposed for past economic loss including income tax paid and superannuation is $37,000 from which $7,083.75 is to be a credit to the insurer for paid statutory benefits.
Although A/Prof Truskett believes Mr Harvey is fit for his employment in the financial accountancy industry, the insurer has accepted he may experience periods of impairment in the future considering his work life expectancy of 45 years and the extent of his accident-related injuries. The proposal for future economic loss including future loss of superannuation is $223,000.
Taking into consideration the amended amount for non-economic loss, the proposed settlement figure is $635,000.
The total proposed amount for the offer of settlement will clear Mr Harvey the sum of $627,916.25 after the paid benefits are deducted.
SHOULD I APPROVE THE SETTLEMENT
I gave Mr Harvey every opportunity to tell me how his life had changed since the crash. He told me apart from not being permitted to play any contact sport, he felt his lifestyle had not been impacted by his injuries. He did acknowledge he does experience pain from time to time, but this did not inhibit him from walking, running, or sitting. He told his job allows him to stand and stretch at will.
He does not ride motor or push bikes and is not involved in physical social activities.
He is excited about his employment prospects in the future and is confident he will remain in full time sedentary work. He told me he did not expect his injuries to prevent him from leading a full life.
He understood he was entitled to legal representation but did not wish to engage a lawyer.
He confirmed he wanted his claim to be resolved. I explained to him the meaning of non-economic loss including pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. When considering questions of fact and degree, and matters of opinion, impression, speculation, and estimations and after the exercise of common sense and judgment as discussed in Dell v Dalton (1991) 23 NSWLR 528, I am satisfied the amount proposed of $375,000 is within the range.
I am satisfied Mr Harvey is aware the settlement finalises his entitlements to further common law damages under the Act.
I am satisfied that Mr Harvey is aware of his rights to have his reasonable treatment expenses paid for the remainder of his life.
I am satisfied Mr Harvey is happy with the amount he will receive in his hand after the statutory benefits are deducted from the $635,000 which is $627,916.25.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Mr Harvey.
I am satisfied Mr Harvey understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising from the accident. I am satisfied Mr Harvey is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of
Mr Harvey’s claim for damages in the sum of $635,000.
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