AAI Limited t/as GIO v McLachlan
[2024] NSWPIC 371
•3 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v McLachlan [2024] NSWPIC 371 |
| CLAIMANT: | Tyler McLachlan |
| INSURER: | GIO Insurance (Australia) Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 3 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; proposed offer of settlement for approval; claimant t-boned at an intersection whist riding his bicycle; liability wholly admitted; claimant fractured multiple ribs, shoulder and initial mental trauma; injuries improved over time; claimant had a short time of total work incapacity gradually returning to full time work; settlement included an amount for statutory benefits; proposed offer of settlement included a sum for past and future economic loss; Held – proposed offer of settlement approved in the sum of $70,000 noting a credit to the insurer for statutory benefits. |
| 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 $70,000. |
STATEMENT OF REASONS
INTRODUCTION
On 23 May 2023 Mr Tyler McLachlan (the claimant) sustained injury when riding his bicycle along Captain Cook Drive, Kurnell. The insured driver failed to give way at an intersection and t-boned the bicycle causing traumatic chest pain which is recorded on the ambulance report.
He was conveyed by ambulance to Sutherland Hospital where he was admitted and discharged on the same day. The hospital diagnosed 4th, 5th, 6th and 7th rib fractures. He was managed with analgesia. Upon discharge he was recommended to continue physiotherapy exercise to prevent pneumonia, monitor respiratory deterioration or fevers and utilise prescribed pain medication.
Mr McLachlan has made a claim against GIO Insurance (Australia) Limited (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 McLachlan is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
Mr McLachlan and the insurer have reached agreement as to settlement of the claim for damages.
Because Mr McLachlan 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 McLachlan have agreed he is not entitled to damages for non- economic loss. It is conceded the damages claim is limited to 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 McLachlan, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) Mr McLachlan 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, applications, ambulance report, clinical notes and reports, a report from Dr Girgis and the physiotherapist, payslips and notice of assessments, income statements, particulars and communications between the parties.
REVIEW OF THE EVIDENCE
At the time of the crash involving Mr McLachlan’s bicycle and the insured’s car,
Mr McLachlan had an infant daughter. He told me he was in severe pain with his fractured ribs and found difficulty holding his daughter against his chest.He was a surfer and initially was unable to lie on his board due to pain. He developed anxiety on the roadway. He became hesitant and reluctant to continue to ride his bike casually and for training.
He told me during the preliminary conference that he has gradually, over time, returned to riding frequently but is cautious and avoids any risk-taking manoeuvres.
Mr McLachlan consulted Dr Tony Girgis general practitioner after the crash. The doctor noted the rib fractures further diagnosed a right shoulder ligament tear. His report to the insurer dated 25 May 2024 sets out the injuries Mr McLachlan sustained in the crash and the doctor’s management of those injuries.
Dr Girgis when asked if Mr McLachlan had reached his maximum medical improvement, the doctor says this is a subjective term and relies on the patient's perception of their outcomes. He did not rule out possible future degeneration of arthritic changes and suggested close monitoring and appropriate treatment are crucial to minimise these risks.
After reading this report, I enquired if Mr McLachlan was aware of his entitlement to treatment for accident-related injuries for the rest of his life. He appreciated this information and confirmed with me that if he requires further treatment, he will consult with his doctor.
Mr McLachlan informed me he felt his shoulder had made a full recovery and he no longer felt pain in his chest. Overall, Mr McLachlan confirmed that he felt he had made a good recovery and was anxious to resolve this claim.
The proposed offer is an amount of $10,000 for past economic loss. Mr McLachlan is employed as a subject matter expert for the New South Wales Standards Authority. His pre-accident earnings were $2,053.21 net per week.
He was certified unfit for work from 24 May 2023 to 9 June 2023. He was certified fit for a partial return to work by Dr Girgis reducing his hours to 3.5 per day until 12 July 2023.
Mr McLachlan utilised sick leave and was paid statutory benefits amounting to $7,540.45. The net sum that Mr McLachlan would receive if approved for past economic loss is $2,459.55.
Notwithstanding Mr McLachlan has returned to work full time, the insurer has allowed a buffer of $60,000 for future economic loss based on a potential reduction in earning capacity in the future as a result of accident-related injuries.
The total proposed amount for the offer of settlement is $70,000 including the paid benefits amounting to $7,540.45.
SHOULD I APPROVE THE SETTLEMENT
I reviewed emails between the insurer and Mr McLachlan. I was concerned he may have felt pressured to accept the insurer’s proposed offer. Mr McLachlan assured me this was not the case and that he was very happy with the amount proposed.
I further asked him if he felt that his injuries may impact on his future work capacity. He told me he had recently been seconded to a promoted position with his employer which he told me was an exciting opportunity.
During the preliminary conference held on 25 June 2024, I impressed upon Mr McLachlan his ongoing entitlement to reasonable treatment and domestic care for needs caused by the injuries which occurred in the accident.
He confirmed he wanted this claim to be resolved.
I am satisfied Mr McLachlan is aware the settlement finalises his entitlements to further common law damages under the Act.
I am satisfied that Mr McLachlan is aware of his rights to have his reasonable treatment expenses paid for the remainder of his life.
I am satisfied Mr McLachlan is happy with the amount he will receive in his hand after the statutory benefits are deducted from the $70,000 which is $62,459.55.
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 McLachlan.
I am satisfied Mr McLachlan is aware he can seek legal advice but does not wish to do so.
I am satisfied Mr McLachlan 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 McLachlan 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 McLachlan’s claim for damages in the sum of $70,000.
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