AAI Limited t/as GIO v Morua
[2025] NSWPIC 64
•26 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Morua [2025] NSWPIC 64 |
| CLAIMANT: | Maria Belen Morua |
| INSURER: | AAI Limited trading as GIO |
| MEMBER: | Alexander Bolton |
| DATE OF DECISION: | 26 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; the claimant was injured on 21 August 2023 and she was riding a pushbike and the insured car ran over her right leg; the claimant at the time was a temporary visitor to Australia studying English; as a result of the accident the claimant suffered a right medial malleolus vertical sheer but subsequently made a good recovery over several months; medical evidence was to the effect that the claimant had 0% whole person impairment; it was unlikely the claimant would have any significant future degeneration or arthritic change; the claimant was an Argentinian national and has returned to reside in Argentina; Held – claimant aware that she is not entitled to future statutory benefits once settlement approved and settlement approved in the amount of $80,000 consisting of past economic loss of $25,000 and future loss of $55,000 less $5557.82 for statutory benefits paid. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement sum of $80,000 is approved under sub-s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. Pursuant to sub-s 3.40(1)(b) of the Motor Accident Injuries Act 2017, the insurer is entitled to deduct the sum of $5,557.82 from the proposed settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3. |
STATEMENT OF REASONS
INTRODUCTION
The motor accident the subject of this claim occurred on 21 August 2023. The insurer has admitted liability. There is no claim of contributory negligence for the purposes of a deduction in respect of the settlement although the insurer did initially allege a deduction of contributory negligence of 15%. The claimant strongly denies any contributory negligence by her.
The claimant is not represented by an Australian legal practitioner.
GIO, the insurer, had made an offer of settlement to the claimant and this has been accepted. As far as I am aware, there have been no other negotiations.
The claimant requests that the Personal Injury Commission (Commission) approve the proposed settlement.
The accident
The accident occurred on the 20 August 2023. The claimant was riding her electric bike along a footpath/bike trail when she traversed an entry point to Boyle Street into White Street, Balgowlah, when the insured driver drove towards the claimant which caused the claimant consequently to lose her balance and fall to the ground. The insured driver then reversed her over car the claimant’s right ankle.
Claimant’s circumstances
At the time of the accident the claimant was in Australia staying on a student visa, studying English. The claimant is an Argentinian national. She was able to work up to 20 hours per week as part of the visa, to support herself.
The claimant is now residing again in Argentina and pursuing work in the field of accounting.
Claimant’s injuries and medical evidence
Immediately after the accident the claimant was taken to Royal North Short Hospital with the following injuries:
(a) right medial malleolus vertical shear, and
(b) knee pain.
The claimant did not require surgery to any of her injuries. She was treated non-operatively with a plaster cast for six weeks and subsequently had twice-weekly physiotherapy.
The claimant’s general practitioner (GP) provided certificates of capacity which certified that the claimant was fit to return to work for up to 20 hours per week from 26 October 2023.
The claimant’s GP also provided a certificate of capacity to effect that she was fit to return to pre-injury duties from 4 December 2023.
Medical evidence
The insurer obtained a report from Dr Mitchell, occupational physician, dated
16 September 2024.The claimant reported that she could manage the following activities and timeframes before increasing symptoms would develop:
(a) sitting for long periods without difficulty;
(b) standing for 30 minutes;
(c) walking for 2 or 3 km, or up to 40 minutes, and
(d) lifting capacity has not been affected.
Prior to the accident, the claimant was not active in any recreational or sporting manner however, Dr Mitchell reported that the claimant was, at the time of assessment, undergoing training to become a contortionist.
Dr Mitchell reported that the claimant had a good prognosis although an MRI scan confirmed a slow healing process.
Dr Mitchell said that the investigations undertaken indicated that the fracture had not yet fully healed by solid callus formation, and therefore further improvement in her symptoms was to be expected over the next two to three months from the date of examination, at which time it would be more appropriate to carry out an assessment of permanent impairment.
Dr Mitchell said that with normal movement possible in the right ankle, it would appear there may well be a 0% WPI as a consequence of the subject accident.
Dr Mitchell also said that it would be unlikely that there would be any significant future degeneration or arthritic change due to any sequelae of the subject of injury.
Legislative framework
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 (the PIC Act).
As a member of the Motor Accidents Division of the Commission, cl 14A(1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14D empowers me to determine those proceedings.
Because of the date of the accident, cl 14D(3)(b) of the Personal Injury Commission Regulation 2020 provides that the Motor Accident Injuries Act 2017 (MAI Act) and the Motor Accident Guidelines (the Guidelines) continue to apply.
In making my decision I have considered the following legislation and guidelines:
(a) the PIC Act;
(b) the Personal Injury Commission Rules 2021;
(c) the Personal Injury Commission Regulation 2020;
(d) the 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 not 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.
The Guidelines requires GIO to include in its Application details of:
(a) the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage, and
(b) the insurer has provided me with a copy of an agreement for release which the claimant has signed which provides a breakdown of the offer and confirmation the offer represents an amount for economic loss only.
I have reviewed this documentation.
The claimant is an Argentinian national. The claimant appeared at the teleconference for approval of the settlement from Argentina and an interpreter was available to assist her although her command of English is good.
Section 3.33 the MAI Act provides that an injured person who is not an Australian citizen or a permanent resident of Australia is not entitled to statutory benefits in respect of treatment and care provided outside Australia. Ms Morua was informed about this by me at the teleconference.
Should I approve the settlement?
When considering the provisions of s 6.23 of the MAI Act and cl 7.38 of the Guidelines along with the rules and practice directions of the Commission, in deciding whether or not to approve or not approve Ms Morua’s settlement, I need to consider:
(a) appropriateness- whether the amount of the settlement is just, fair and reasonable, and
(b) understanding- whether Ms Morua understands the settlement and its terms and the effect of the settlement in ending his claim for damages.
The Guidelines requires the amount of any deductions in the proposed settlement:
(a)GIO has confirmed that $5,557.82 will be deducted from the offer made. This represents a refund to the insurer of past statutory benefits paid, and
(b)there is no money repayable to Centrelink.
As far as the parties are aware, there is no payback to Medicare.
I am satisfied that Ms Morua is aware that her statutory benefits claim cannot be made for services rendered out of Australia and which might be attributable to the accident.I am satisfied that Ms Morua is aware that if I approve this settlement that it will be a final resolution of her claim and that she can make no further claim for damages for economic or non-economic loss arising out of this accident.
Ms Morua confirmed that she was happy to accept the offer made by the insurer.
Ms Morua is also aware that she can instruct an Australian Legal Practitioner to act for her but she does not want to do this, in the circumstances.
I can refuse to approve a settlement. However, I am satisfied that this is a reasonable settlement offer, taking into account the injuries.
In RACQ Insurance Limited v Motor Accidents Authority of NSW (No 2) [2014] NSW SC 1126. it was stated:
“It is a relationship of the award to the injury and its consequences… which is to be proportionate…. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases… The principle to be followed… is that the amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused. It is to be proportionate to the situation of the claimant….and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing… The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring … to allow for differences between the circumstances of other cases and the circumstances of the case in hand.” [Planet Fisheries Pty Ltd V La Rosa (1968) 119 CLR 118 per Barwick CJ, Kitto and Menzies JJ at paragraph 11].
The amount of the settlement that I am asked to approve comprises the following:
· Past economic loss $25,000
· Future economic loss $55,000
Total $80,000
I am satisfied that the amount of $80,000 less statutory benefits paid of $5,557.82 is an appropriate settlement of the claimant’s claim considering all circumstances.
I approve the settlement.
Determination
The proposed settlement sum of $80,000 is approved under sub-s 6.23(2)(b) of the MAI Act.
Pursuant to sub-s 3.40(1)(b) of the Act, the insurer is entitled to deduct the sum of $5,557.82 from the proposed settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3.
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