AAI Limited t/as GIO v Holl
[2023] NSWPIC 200
•24 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | AAI Limited t/as GIO v Holl [2023] NSWPIC 200 |
| Claimant: | Carla Holl |
| insurer: | AAI Limited t/as GIO |
| Member: | David Ford |
| DATE OF DECISION: | 24 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 63-year-old female passenger in a State Transit bus injured when bus braked suddenly; sustained nondisplaced left thumb Ulnar collateral ligament (UCL) avulsion fracture; took two weeks sick leave from employment; works as a medical receptionist; entitled to damages for past and future economic loss only; Held – the proposed settlement is just, fair and reasonable; settlement approved under Section 6.23(2)(b). |
| determinations made: | CERTIFICATE OF DETERMINATION 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. |
STATEMENT OF REASONS
INTRODUCTION
The claimant was a passenger on a State Transit Authority bus on the 22nd of October 2018, travelling along Old South head Rd at Bondi Junction. As the claimant was endeavouring to take her seat on the bus. the driver braked suddenly, and as a consequence, the claimant was thrown forward, landing on the floor of the bus and sustaining injuries to her head ,left thumb and bruising to the right hand.
She was taken to Royal Prince Alfred Hospital where she was admitted but subsequently discharged that night. She was diagnosed subsequently by Dr Chris Smithers. orthopaedic surgeon, as having suffered a nondisplaced left thumb UCL avulsion fracture which was managed non operatively.
She had pre-existing bilateral ulnar collateral avulsion injuries from an earlier sustained whilst skiing approximately 20 years ago. The prognosis for return to pre accident duties was good, with a full or near full return to function ,possibly with some mild stiffness or instability.
The claimant was born in 1959 and is presently 63 years of age. She is employed as a medical receptionist at the Royal Prince Alfred Hospital. After the accident she took a period of two weeks sick leave, and at the teleconference on the 22nd of March 2023 she reported she still experiences pain in her left arm whenever she has to lift objects repetitively and also after extensive typing on the keyboard. However, she reported that she is still able to carry out all the duties required of her by her employer at present. The claimant advised me she wishes to accept the proposed settlement.
The insurer conceded the claimant is entitled to damages. The claimant only has a claim for past and future economic loss including an allowance for superannuation.
I consider the settlement is appropriate in all the circumstances of this case.
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). I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (the 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 clause 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 she is capable of carrying out the day-to-day tasks required of him by her employer.
The claimant confirmed she had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
I am satisfied the claimant is aware of her right to have reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter, the claimant may be transferred to ICARE who will be liable for ongoing reasonable treatment expenses.
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, taking into account the nature and extent of the claim, the injuries, disabilities and impairments sustained by the claimant.
I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and she 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 the injuries, disabilities, impairments and losses sustained by the claimant, 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.
TELECONFERENCE 22ND MARCH 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 22nd March 2023. The claimant participated in person and the insurer was represented by Brooke Hill.
The proposed deed of release was lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for past economic loss including superannuation in the sum of $2,277..Damages for future economic loss in the sum of $19.723.The total amount proposed is $22,000 less deduction of statutory benefits paid in the sum of $1,810.60 ,results in a nett payment to the claimant in the sum of $20,189.40 ..
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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