AAI Limited t/as GIO v Husseini
[2023] NSWPIC 99
•6 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | AAI Limited t/as GIO v Husseini [2023] NSWPIC 99 |
| Claimant: | Tarek Husseini |
| insurer: | AAI Limited t/as GIO |
| Member: | Hugh Macken |
| DATE OF DECISION: | 6 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval issued under section 6.23; non-economic loss; contributory negligence; pedestrian in position of danger; Held – the amount of the claim for damages is approved in the total amount of $220,000. |
| determinations made: | SETTLEMENT APPROVAL Issued under section 6.23 of the Motor Accident Injuries Act 2017 The amount of the claim for damages is approved in the total amount of $220,000. |
STATEMENT OF REASONS
INTRODUCTION
The claimant was a 70 year old man who was struck by a car whilst crossing the road on the 11 May 2019. The proposed settlement figure of $165,000 is reflective of an assessment of non-economic loss of $220,000 with a deduction of 25% on damages for contributory negligence.
The claimant suffers from dementia and there is a Power of Attorney made appointing Samer Husseini as his attorney who the insurer agrees is entitled to give instructions in respect to the resolution of this matter.
I have no hesitation in concurring with the parties that a figure of $220,000 is a fair assessment of non-economic loss. Noting the claimant is currently 82 years old the assessment of $220,000 is at the high end of the range for such as assessment.
At the assessment conference the claimant’s son agreed that his father had told him that he saw the car approaching but was of the view that he would safely be able to cross the road before the car posed any danger to him. He was wrong and this is the basis of the allegation of the contributory negligence.
I agree that the failure on his to move 200 metres further down the road to the crossing is unlikely to give rise to a finding of contributory negligence noting the distance that would need to be travelled there and back and noting that it was the claimant who was dropped by a motor vehicle opposite his destination and accordingly had limited control over how he approached his point of crossing.
That said a figure of 25% for contributory negligence is, in all the circumstances and noting that the next friend can find no factual error in the liability report of K. Johnson dated 8 November 2019 and relied upon in support of the allegation of contributory negligence in this matter.
Put simply it was dark, the claimant was not moving as spritely as when he was younger, he saw the car but commenced to attempt to cross the road and was unable to cross safely before being struck.
I agree that a finding of 25% contributory negligence is justified by all the facts and circumstances in this matter.
There is no claim for economic loss. Noting the more than adequate allowance for non-economic loss and a justifiable allegation of 25% contributory negligence I have no hesitation in approving this settlement.
Legislation
10. 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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