AAI Limited t/as GIO v Ing
[2024] NSWPIC 462
•23 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Ing [2024] NSWPIC 462 |
| CLAIMANT: | Klim Ing |
| INSURER: | AAI Limited trading as GIO |
| MEMBER: | Terence Stern OAM |
| DATE OF DECISION: | 23 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 6.23; damages claim; settlement approval; claimant self-represented; injured as a pedestrian; liability admitted by insurer; no entitlement to damages for economic loss; Reece v Reece and Varga v Galea applied; Held – proposed settlement is just, fair and reasonable, and within the range of likely outcomes; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement approval Issued under s 6.23 of the Motor Accident Injuries Act 2017
|
STATEMENT OF REASONS
INTRODUCTION
The claimant, King Ing (Ms Ing) was born in June 1944.
Ms Ing was injured in a motor vehicle accident (the accident) on 28 October 2022.
On 28 October 2022, Ms Ing was walking across Tasman Parade, Fairfield West NSW at the intersection with Hamilton Road when the insured driver failed to give way and struck her causing injury.
AAI Limited ABN 48 005 297 807 trading as GIO (GIO) is the insurer.
Ms Ing lodged an Application for Damages under Common Law (the claim) on 13 July 2023.
By letter dated 13 October 2023, GIO denied liability because its investigations had not been completed.
On 12 January 2024, GIO accepted liability.
A report by NSW Ambulance stated that Ms Ing was observed to be from a non-English speaking background so was only able to provide vague details. It further stated that she was observed to have visible bleeding from the bottom lip, a visible head injury, gross deformity and swelling to the right ankle and a tender right femur with no signs of a fracture.
Ms Ing was conveyed by ambulance to Liverpool Hospital.
A Discharge Summary from Liverpool Hospital stated that Ms Ing was diagnosed with a dislocation and fracture of the right ankle, right non-displaced anterolateral 3-5th rib fractures, left non-displaced anterior 2-5th rib fractures and right periorbital and facial haematoma.
At Liverpool Hospital, Ms Ing underwent open reduction and internal fixation of her right ankle fracture. Her admission was complicated by nutrition related hyponatremia.
Ms Ing was transferred from Liverpool Hospital to Holroyd Private Hospital (Holroyd) for rehabilitation on 15 November 2022. She remained an inpatient at Holroyd until
22 December 2022 before being discharged to her home in the care of a relative.On the Application for Personal Injury Benefits (APIB) form, Ms Ing listed the following injuries she received as a result of the accident:
(a) broken ankle – in three parts;
(b) facial injuries;
(c) right leg scratches, and
(d) bruised whole right side of face (soft tissue injuries).
Ms Ing, who was 78 years old at the time, was in good health prior to her accident.
Ms Ing lives with her daughter, Sok Ny Sorn, and her granddaughter, Angelica Sorn. Both were in attendance at the preliminary conference which I held on 15 August 2024 at 10:30am via Teams for the purposes of discussing the settlement offer.
The accident
The police attended the scene of the accident and produced the following report:
“On Friday the 28th of October 2022, vehicle one and the pedestrian were stopped at the lights on Tasman Parade and Hamilton Street Fairfield West. At the time of the incident, vehicle was stopped on Hamilton Street and intended to turn left into Tasman Street. Meanwhile, the pedestrian was stopped at the pedestrian light-controlled crossing intending to cross Tasman from west to east. About 11:38, the pedestrian light and vehicle traffic light changed to green for the pedestrian and the driver of vehicle one to go. For an unknown reason Drive one failed to see the pedestrian as they crossed the road and collided with them causing the pedestrian to fall to the roadway and suffer serious injuries.”
NSW Ambulance also attended the accident and wrote the following report:
“C/T PT POST MVA - STRUCK BY CAR TRAVELLING APPROX 20KPH, VAUGE DETAILS PROVIDED, PT Description NESB (CAMBODIAN SPEAKER), UNKNOWN LOC, UNKNOWN IF PT WAS THROWN ANY DISTANCE. O/A PT LOCATED LYING SEMI RECUMBANT ON GRASS/FOOTPATH, POLICE IN ATTENDANCE, O/E: A - PATENT, BLEEDING VISIBLE FROM BOTTOM LIP, OROPHARANX CLEAR, UNABLE TO ASSERTAIN CSPINE TENDERNESS - VISIBLE HEAD INJURY, NESB - MILS PROVIDED AND C-SPINE COLLAR APPLIED. B - SPONT, NO VISIBLE OR PALPABLE CHEST INJURIES, NORMOXIC ON RA, EQUAL CHEST RISE AND FALL, NIL SIGNS OF SUBCUT EMPHASEMA, NO FLAIL SEGMENTS, NIL BLEEDING OR HEAMATOMA VISIBLE, LUNG SOUNDS CLEAR IN ALL FIELD ON AUSCULTATION. C - NORMOTENSIVE, WELL PERFUSED, NO EXTERNAL BLEEDING, PELVIC PAIN - TPOD APPLIED, D - UNABLE TO ASSERTAIN TRUE GCS, ABLE TO FOLLOW COMMANDS, AT AN ESTIMATE GCS 15, FAST - VE, PEARL 343+, E - AFEBRILE, GROSS DEFORMITY AND SWELLING TO R ANKLE (MINIMAL PEDAL PUSLE PRESENT, TENDER PELVIS, TENDER R FEMUR (NO OBVIOUS FRACTURE SIGNS). F - MOIST MM, G - NORMOGLYCEMIC. TX: MRU REQUESTED, REASSURANCE, MARCHE ASSESSMENT/TX PRIORITIES IMPLIMENTED, MILS + C-SPINE COLLAR APPLIED, PT COMPLETELY EXPOSED, 2X PIVC 18G IN CF'S, TPOD APPLIED, 25MCG + FURTHER 25MCG FENTANYL IV, KETAMINE DRAWN UP (NOT GIVEN/DISGARDED IN ED WITH A.BULL ALONG WITH 50MCG FENTANYL) EXTRICATED USING SCOOP BOARD, HANDED OVER TO MRU, MRU DOCTOR TOOK OVER CARE OF PT AND MRU OBSERVER REMAINED IN AIRWAY SEAT - TOC GIVEN TO MRU DOCTOR, WHO CONVEYED PT IN 954.”
Permanent impairment
Ms Ing was assessed by Dr Gregory McGroder, occupational physician, for whole person impairment (WPI) and he determined 11%, which was accepted by GIO.
Settlement offer
GIO has offered Settlement in the sum of $270,000, an amount which has been accepted subject to the approval of the Personal Injury Commission (Commission).
Payback?
There is no payback or deduction to be made from the Settlement, such that GIO will pay
Ms Ing $270,000 net.
Supporting material
The following documents were before the Commission and considered in making this determination:
(a) GIO’s submissions, dated 1 August 2024;
(b) Application for Personal Injury Benefits, dated 1 November 2022;
(c) Application for Damages under Common Law, dated 13 July 2023;
(d) Liability Notice benefits after 26 weeks, dated 8 February 2023;
(e) Liability Notice – Claim for damages, dated 13 October 2023;
(f) Liability Notice – Claim for damages, dated 12 January 2024;
(g) Request for particulars, dated 13 July 2023;
(h) Answers to particulars, undated;
(i) Offer of Settlement, dated 9 February 2024;
(j) Email GIO, dated 25 July 2024;
(k) Unsigned Agreement of Release, undated;
(l) Report NSW Police Service, dated 13 November 2022;
(m) Report Dr Simon McKechnie, dated 20 April 2021;
(n) Report NSW Ambulance Service, dated 23 February 2023;
(o) Certificate of Fitness Dr Mark Butorac, dated 31 October 2022;
(p) Discharge Summary Liverpool Hospital, dated 15 November 2022;
(q) Report Dr Ian Harris, dated 12 December 2022:
“Kim Ing was reviewed in the Fracture Clinic at Liverpool Hospital on 12 December 2022, 6 weeks post internal fixation of her right ankle fracture. She has remained an inpatient since then as she has been non weight bearing.
The cast was removed today. Her wounds are clean and the ankle is in good alignment. her recent X-rays are excellent.
Mrs Ing can now weight bear as tolerated and can be discharged when safe. I will re\1ew her in 6 weeks with another X-ray”;
(r) Discharge Summary Holroyd Private Hospital, dated 22 December 2022;
(s) Report Ms Amy Nguyen, undated;
(t) Allied Health Recovery Request, dated 31 January 2023;
(u) Report Dr Gregory McGroder, consultant occupational physician, dated
4 July 2023:“In a road traffic accident on 28 October 2022 Ms Ing sustained a fracture dislocation of the right ankle and she underwent open reduction and internal fixation of the fracture. She has on-going pain and restriction of range of movement involving the ankle and hindfoot.
She also sustained fractures of the ribs bilaterally which were undisplaced and on the left they involved the 2nd to 5th ribs and on the right the 3rd to 5th ribs. They were treated conservatively.
She also sustained significant right peri-orbital and facial hematoma which settled with conservative management.
The above injuries are all totally a result of the subject road traffic accident.
There were no pre-existing conditions that are relevant in Ms Ing’s situation. I expect that there is a contribution to her current condition from her age and she is generally infirm, but it is noted that she was independent in all activities of daily living prior to the road traffic accident. On-going restrictions are subsequently totally a result of the subject accident”;
(v) Report Ms Sarah Whitley, physiotherapist, dated 3 May 2024, Ms Whitley identified the following barriers for Ms Ing:
(i)“Ms Ing is 79 years old so recovery has been slow to date.
(ii)Ms Ing has reached her maximal potential as reported by the physiotherapist and has not been able to progress back to completing her pre- MVA cleaning, laundry and shopping tasks.
(iii)Ms Ing has ongoing fear about leaving the house and is fearful of falling and making her injuries worse. She has been provided with a wheelchair to use for family day trips.
(iv)Ms Ing was previously able to take public transport independently to attend church with her friends but has been unable to do this independently since the MVA.
(v)Ms Ing spends most of her time at home which has had a negative influence on her mental health.”
(w) Report Ms Salina Tain, physiotherapist, dated 12 May 2024:
“Kim has consistently attended physiotherapy sessions and has been compliant with treatments/home exercise program. She reports that overall, her pain levels have significantly decreased but recently, she's been feeling sorer because it's been very cold and windy. She is now able to prepare tea, coffee and light meals such as cereal, while still requiring assistance for full meals. She is independent with showering and toileting but still requires assistance for cleaning. Her daughter reports that she is comfortable leaving her home by herself for up to 1 hour when she needs to run errands”;
(x) Report Mr Wathnak Vy, counsellor and clinical psychotherapist, dated 27 May 2024:
“Recommendations:
Given Ms. Kim Leang's persistent thoughts of feeling like a burden, it is strongly recommended that she undergo additional weekly counselling sessions. These sessions will provide ongoing support and address her anxiety and emotional distress.
Furthermore, the approval of NDIS support should be prioritised. This support should focus on enhancing community engagement, including assistance with transportation to the temple, providing a support person,
and helping with general housework. These measures will contribute significantly to improving Ms. Kim's independence and overall wellbeing.
Final Note:
Ms. Kim Leang has demonstrated remarkable resilience in coping with the aftermath of her accident, relying on family support and Buddhist practices. Despite facing ongoing challenges with anxiety and nightmares, she remains actively engaged in social and spiritual activities. The involvement of her family is crucial to her support system, although logistical and emotional challenges continue to exist”;
(y) X-ray right ankle, dated 9 December 2022;
(z) Injury photographs 1-6, undated, and
(aa) Signed Communication Agreement, dated 20 November 2022.
Impact on entitlement to Centrelink benefits
I made it very clear at the time of the preliminary conference, that I was not in a position to give any assurance to Ms Ing as to the impact, if any, of the Settlement sum on her entitlement to receipt of future Centrelink benefits.
Statutory entitlements
Mr Izzard, on behalf of GIO, informed me, Ms Ing, her daughter and granddaughter that
Ms Ing would be entitled to future payments for treatments (statutory entitlements).
Intellectual capacity and cognitive dysfunction?
I was concerned as to whether or not, Ms Ing had any diminution in her cognitive function, which would impact on her capacity to understand and approve the Deed prepared by GIO to settle this matter.
Ms Ing spoke Khymer. There was no interpreter available, but her daughter’s first language is Khymer, and her granddaughter does speak some Khymer.
I weighed up the disadvantage to Ms Ing at the possibly considerable delay in obtaining further information on cognitive function.
I asked Ms Ing’s granddaughter what sort of work she did, and she stated that she was a legal practitioner. Ms Ing’s daughter and granddaughter both assured me that Ms Ing was perfectly “with it”, in terms of intellectual function. She lives with her daughter and granddaughter, and they interact with her on a daily basis.
I took considerable comfort from what the granddaughter in particular said, as she is a solicitor, was an impressive person and as an officer of the Court, should be taken as telling the truth.
Legislation and legal principles
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.
As a member of the Motor Accidents Division of the Commission, cl 14A(1) of the Personal Injury Commission Regulation 2020 and clause 14D empowers me to determine those proceedings.
Cl 14D(3)(b) of the Personal Injury Commission Regulation 2020 provides that the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Guidelines (the Guidelines) apply.
In making my decision I have considered the following legislation and guidelines:
(a) Personal Injury Commission Act 2020;
(b) Personal Injury Commission Rules 2021;
(c) Personal Injury Commission Regulation 2020;
(d) MAI Act, and
(e)the Guidelines.
Section 6.23 of the MAI Act states:
“6. 23 Restrictions on settlement of claim for damages
(1) (Repealed).
(2) A claim for damages cannot be settled unless –
(a) the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b) the proposed settlement is approved by the Commission.
(3) The Commission is naot to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Regulation 95 of the Personal Injury Commission Rules states:
“95 Application for approval of Damages settlement
(1) If a claimant, who is not represented by an Australian legal practitioner, and an insurer have agreed to a proposed damages settlement, the insurer must lodge an application for approval of a damages settlement under section 6.23 of the MAI Act, on behalf of both the claimant and the insurer, within 7 days of reaching the agreement.
(2) (Repealed).”
Clause 7.37 of the Guidelines states:
“Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act [since repealed];
(b) 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 the Commission, taking into 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;
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Clause 10 of the Commission’s Procedural Direction MA3 provides that the application must include:
(a) a deed of release;
(b) the amount of the proposed damages settlement, including a breakdown of the amount allowed for each head of damage and how each amount allowed has been calculated;
(c) the amount of any reductions in the proposed damages settlement including for contributory negligence or any other reduction, including brief reasons for that reduction and how any reductions have been calculated;
(d) the amount of any advance payments that the insurer has made in advance of the settlement and the dates of those advance payments, including brief reasons explaining why those advanced payments were made, and
(e) the evidence, documents and materials relevant to an assessment of the damages settlement including liability notices.
I am satisfied that the application complied with cl 10 of the Commission’s Procedural Direction MA3.
Case Law
In Reece v Reece (1994) 19 MVR 103; NSWCA 259, the Court took into account the position of a much younger woman with the same range of interests and the same injuries [15].
The Trial Judge had assessed non-economic loss damages at 33.33% of a most extreme case. The Court of Appeal held that, taking into account the age of the plaintiff, 33.33% was a wholly disproportionate assessment of the degree of the plaintiff’s loss, and assessed 22.5% of a most extreme case.
In Varga v Galea [2011] NSWCA 76, the plaintiff, who was 63 years at the time of Trial, had sustained significant injuries in a fall, and had ongoing incapacitating disabilities in his low back and left knee. The respondent conceded that he would never be able to return to the full-time workforce.
At paragraph [72], McColl JA said:
“Reece v Reece states the uncontroversial proposition that the Plaintiff’s age at the time of the assessment of damages is a relevant factor to the assessment of non-economic loss…”
At [74], McColl JA stated:
“The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a ‘most extreme case’. In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent: ‘Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables’."
Should the proposed settlement be approved?
Taking into account Ms Ing’s age, I am firmly of the opinion that the settlement offer proposed, is within the range of outcomes that a court would consider to be reasonable in the circumstances, and is just, fair and reasonable in the circumstances.
Ms Ing’s mobility is still good, and she can get about but prefers to be in the company of her daughter and doesn’t want to inconvenience them.
Ms Ing only just met the threshold for the award of non- economic loss damages assessed at 11% WPI.
Taking all matters into consideration, the settlement offer is reasonable and should be approved.
DETERMINATION
I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making a further claim for damages arising out of the motor accident but is entitled to ongoing treatment and care needs. I am satisfied she knew she was entitled to legal representation.
The proposed settlement is appropriate and complies with cl 7.04.2 of the Guidelines in that it 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 of the PIC, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”
Accordingly, I approve the proposed settlement of $270,000.
0
2
0