AAI Limited t/as GIO v Higgins
[2024] NSWPIC 73
•21 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | ||
| CITATION: | AAI Limited t/as GIO v Higgins [2024] NSWPIC 73 | |
| CLAIMANT: | Kristie Higgins | |
| INSURER: | GIO | |
| MEMBER: | Hugh Macken | |
DATE OF DECISION: | 21 February 2024 | |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; damages approved; non-economic loss; pre-existing conditions; allowance for economic loss; pre-existing learning difficulties; assumptions about future earning capacity; most likely future employment circumstances but for the injury; likelihood of earning capacity being reduced consequent on the motor accident; pre-accident capacity to enjoy social, domestic and recreational activities; Held – settlement approved. | |
| DETERMINATIONS MADE: | CERTIFICATE SETTLEMENT APPROVAL Issued under section 6.23 of the Motor Accident Injuries Act 2017
| |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 37-year-old woman who was seriously injured in a tragic motor vehicle accident on 21 July 2018. She was a front seat passenger in a head on collision. The then partner, who was the driver of the vehicle in which the claimant was travelling sustained fatal injuries in the accident. The proposed settlement figure of $400,000 is put on the basis that it is compensation for non-economic loss only. That is, there is no allowance in proposed settlement figure for either past or future economic loss.
Documents considered
The insurer has uploaded more than 600 pages of material in respect to this matter. They include medico-legal opinions from orthopaedic surgeons, rehabilitation physicians and a psychiatrist as well as a significant amount of treating doctors’ material. Also included is the settlement agreement dated 15 December 2023.
Reasons
The accident was a very serious and horrendous collision. Following the accident the claimant was taken by helicopter to Gold Coast University Hospital where she was hospitalised for about two weeks. She suffered multiple fractures to her left foot, multiple bruises and abrasions, collapsed lung and a mild traumatic brain injury.
Noting the claimant’s age and the significance of the injuries I am of the view that a compensation for $400,000 for non-economic loss is, in my view, at the higher end of the scale which could reasonably be awarded.
The only concern in respect to the approval of the proposed settlement is whether or not it is appropriate that there is no allowance for economic loss in this matter.
In this regard, I note the insurer’s submissions and I note at the assessment conference the claimant was in agreement with the factors as outlined and the history taken by the medico-legal doctors arranged by the insurer.
The claimant has always suffered from a significant learning disability. She has never had a driver’s licence. She was raised in Maitland by her mother and her aunt. She suffered very significant early life trauma. She had described anxiety and depressive symptoms following the birth of the first of her three children. She has had great difficulties in personal relationships and trauma surrounding these relationships. She has three children now aged 16, 11 and 7 years old. The children have lived with other family members since March 2016.
Her employment history is limited to about 6 months work at Hungry Jacks shortly after leaving school. She has not worked since. She has not been applying for employment since that time.
There is nothing in the material to support any contention that, but for the injuries sustained in this motor vehicle accident, the claimant would have worked prior to the settlement of this matter. She had a pre-existing disability and was in receipt of a disability support pension. She had been dealing with the aftermath of abusive relationships. She did not consider that she was in a position to return to the workforce and was not actively in any employment. Accordingly, and in accordance with the medical material provided in this matter, I do not consider that it would be appropriate to make allowance for past economic loss in respect to the resolution of this matter.
In respect to the future economic loss, I note s.47 of the Motor Accident Injuries Act (2017) (MAIA) provides that damages for future economic loss may not be awarded unless the assumptions about future earning capacity accord with the claimant’s most likely future circumstances but for the injury.
That is, in the circumstances of this claimant I concur with the submissions made that the claimant’s future earning capacity, irrespective of any post-accident disabilities, remains the same. She basically has not worked since she left school. While she has had three children she has not had the day to day care of those children for a number of years. She had a pre-existing learning disability which, in my view, would have prevented her from returning to the workforce.
In any event, whilst the injuries she sustained in the motor vehicle accident are quite both significant and tragic neither the material in this matter nor the claimant at the assessment conference support any contention that the claimant’s future earning capacity has been reduced consequent on the injuries sustained in the motor vehicle accident. That said, neither the material in this matter nor the claimant at the assessment conference, give rise to any percentage possibility that the claimant’s future earning capacity has been reduced consequent on the motor vehicle accident. This is not because the injuries were not significant but rather because the claimant’s pre-existing earning capacity was negligible.
The claimant is a woman who has borne great trauma and suffering in her life. The report of Dr P. Whetton dated 20 November 2023 deals with this background history. The material includes correspondence from a treating psychologist, Dr Wei Wang, dated 23 March 2018, some 4 months pre-accident. This treatment was sought to assist the claimant in dealing with some of her experience and developing strategies of “general coping drawing from a broad cognitive behaviour therapy framework.” When seen in light of the claimant’s pre-existing psychological issues, and her attempts to deal with these in difficult domestic circumstances, the impact of the motor vehicle accident can be seen, as is reflected by the material, to be one of a significant reduction in her pre-accident capacity to enjoy social, domestic and recreational activities and not one which has, of itself, reduced her earning capacity.
I have no hesitation in approving a settlement of $400,000, noting that it is a compensation for non-economic loss only, in this matter.
Legislation
15. In making my decision I have considered the following legislation and guidelines:
· Motor Accident Injuries Act2017, Section 6.23 (3)
· Motor Accident Injuries Regulation 2017, Section 7.37
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