AAI Limited t/as GIO v Newing
[2024] NSWPIC 171
•9 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Newing [2024] NSWPIC 171 |
| CLAIMANT: | Bryce Newing |
| INSURER: | GIO |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 9 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval in the sum of $51,200; 28-year-old male; past and future economic only; no entitlement to non-economic loss; tiny avulsion fracture; right ankle now healed; closed period past economic loss; buffer for future economic loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement approval 1. The proposed settlement in the sum of $51,200 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 12 June 2023, Bryce Newing (the claimant) was a front seat passenger in a vehicle involved in an accident at Mulgoa Road, Penrith. It is alleged that the insured failed to stop at a red light intersection. The claimant was transported to Nepean Hospital by ambulance.
The injuries sustained in this accident were:
· right ankle injury – tiny avulsion fracture at the proximal dorsolateral margin of the cuboid and synovitis – anterior ankle gutter.
He was certified fit for pre-injury duties by his general practitioner Dr Montero on
16 November 2023 on the basis that he had fully recovered from his injury.On 31 July 2023 an application for statutory benefits was made.
On 14 February 2024 a common law claim form was lodged with the insurer and the insurer admitted liability on 15 February 2024.
The claimant has recovered from his injuries according to the report of Dr Montero dated 16 November 2023. There is no claim for non economic loss and I am satisfied that the injuries suffered have not resulted in whole person impairment exceeding 10% that would entitle the claimant to an award for damages for non-economic loss.
The injuries sustained in the accident have impacted on the claimant’s earning capacity as a storage and forklift operator. He brings a claim for both past and future economic loss.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act) and relevant Guidelines.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021 and has the jurisdiction to determine the application.
I am a Member of the Motor Accidents Division of the Commission authorised to determine the application.
THE RELEVANT LAW
Pursuant to ss 6.23(2) and (3) of the MAI Act before the Commission may approve the settlement of a claim for damages, it must be satisfied that:
“The proposed settlement complies with any of the requirements of the MAI Act or the Motor Accident Guidelines.”
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
“• 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;
· the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
· the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Preliminary conference on 18 March 2024
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held the first preliminary conference on 18 March 2024. The claimant appeared by video-link. The claimant participated in person and the insurer was represented by Brooke Hill.
The settlement sum agreed between the parties was $51,200 broken down as:
· past economic loss – $21,200 and
· future economic loss – $30,000.
The claimant was asked to confirm his injuries and treatment received to date. It accorded with the submissions and medical evidence before me. Dr Montero certified the claimant as fully fit to return to pre-injury duties on 19 October 2023 and the claimant confirmed he had not received any further treatment.
The claimant reported he still suffered soreness when undertaking his two jobs but had no time off and barely performed overtime more to do with hours offered than injury related.
Reports from Kaitlin Castillo, physiotherapist indicated excellent prognosis. This was confirmed by the claimant that from first instance there had been significant recovery.
He reported increased hours at work he is now participating in two jobs weekly and that he felt slightly better. He used deep heat but was not taking any other medication. He reported a stiffness at times and a clicking sensation.
I noted the reference to possible arthritic changes in the future and sought the insurer obtain a report from Dr Montero as to the possible impact of arthritic changes in the future.
Preliminary conference on 8 April 2024
The report of Dr Montero dated 28 March 2024 confirmed the following:
“ ..In terms of future prognosis, there is a very minimal risk of him developing right foot arthritis in the future.”
The claimant confirmed he wished for the settlement to be approved.
He was asked if he wanted to seek legal advice and he advised “I don’t want to”.
He was asked “Do you understand the nature and effect of the settlement and that it finalised any damages claimed with the exception of medical treatment” and he confirmed “I know its final and I can’t come back”.
I asked the claimant:
“Are you aware from the total sum to be received of $51,200 that a deduction of $21,200 would be made. This represents statutory payments made by the insurer in the sum of $12,811.93 and an advanced payment made by the insurer to you prior to Christmas in the sum of $8,388.07?“
He responded “Yes and I will receive in hand a balance of $30,000”.
I was informed that the claimant did not wish to seek and further investigations medical or legal. He wanted the matter to be determined on the available information.
The insurer was also asked if any further information or statement was to be made and
Ms Hill said: “nothing further Member”.The preliminary conference concluded with me advising the I would determine the matter.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle which included the following:
Liability:
· application for statutory benefits dated 31 July 2023;
· application for common law damages dated 14 February 2024;
· liability notice dated 15 February 2024, and
· particulars dated 22 November 2023 and 17 January 2024.
Treating medical records:
· ambulance report dated 12 June 2023;
· Nepean Hospital clinical records dated 28 September 2023;
· Ultrasound right ankle dated 5 July 2023;
· CT scan right ankle dated 5 July 2023;
· Certificates of Fitness – various – dated 24 July 2023 to 28 August 2023;
· AHRR physiotherapy records dated 11 August 2023 and 1 November 2023;
· Mt Druitt Medical and Dental Centre dated 18 December 2023;
· Report Kaitlyn Castillo dated 11 August 2023 and 1 November 2023, and
· Report Dr Montero dated 16 November 2023 and 28 March 2024.
Economic loss material:
· income statements – Thales 2022 to 2024;
· income statements -Tamax Transport 2022 to 2024;
· tax returns for years ending 30 June 2021 to 2023, and
· list of statutory payments.
Settlement documents:
· offer of settlement dated 14 February 2024, and
· executed settlement agreement and release – dated 16 February 2024.
REVIEW OF THE EVIDENCE
Oral information from the claimant
The claimant confirmed the status of his health at the first preliminary conference. The extent of treatment undertaken and the history of recovery was supported by the reports of Dr Montero in his report of 28 March 2024 and Ms Castello. Upon receipt of the opinion of Dr Montero as to future prognosis that there was very minimal risk of development of arthritis, the claimant was confident to accept the settlement.
INJURIES
The claimant was conveyed to Nepean Hospital with right ankle pain. An X-ray undertaken was unremarkable. Ice and rest with elevation of the ankle was recommended with a follow up at his general practitioner within 24-48 hours suggested.
The clinical records produced in the matter confirm that the claimant initially sustained a right ankle injury – tiny avulsion fracture at the proximal dorsolateral margin of the cuboid and synovitis – anterior ankle gutter.
The clinical records of Dr Montero his treating doctor on 14 June 2023 with the complaint of right ankle pain. A referral ensued for an ultrasound of the right ankle and it revealed a grade 1 sprain of the anterior talofibular ligament and mild post traumatic tenosynovitis of the tibialis posterior, perneus brevis and longus.
A computed temography scan undertaken on 7 July 2023 revealed a tiny avulsion fracture. Physiotherapy was undertaken with Kaitlyn Castillo and rest with use of CAM boot outside and an ankle brace for inside the home was recommended. A graduated return to work tool place with discharge from physiotherapy occurring on 20 October 2023. At this stage
Ms Castillo opined “Mr Newling had a full range of motion of the ankle and functionally, was unlimited in his work and home duties”.Dr Montero reported to the insurer on 16 November 2023 that upon review of the claimant on 19 October 2023, he considered the claimant had fully recovered. He opined an “excellent long term prognosis and had gone back to work full time with no restrictions”.
Having reviewed the medical evidence, I am satisfied that the claimant’s injuries have now healed and he is does not qualify for non-economic loss.
ECONOMIC LOSS
Past economic loss
The claimant was working in two positions at the time of the accident. He was employed at Thales in a Storage, Distribution and Maintenance role and as a forklift operator with Tamax Transport.
His pre-average weekly earnings were calculated as $1,468.67 by the insurer upon review of payslips provided by the claimant. The claimant returned to work on 19 June 2023 at Thales on light duties and Tamax Transport on 2 October 2023 as his position at Tamax was not cleared for full duties until then due to the nature of the tasks.
A calculation for each week off work was made with losses for each period based of
the difference between pre- injury earning capacity and post injury actual earnings. The shortfall established the past economic loss. The total for weekly losses between 12 June 2023 and 22 October 2023 amounted to $11,590.01.Superannuation was calculated at 11% of the total and amounted to $1,274.90.
The Fox v Wood (1981)148 CLR 438 component (income tax paid) was estimated at $4,024.
The economic loss of $16,888.91 was increased by $4,318.09 to reflect loss of possible overtime during the period.
The total for past economic loss equated to $21,200.
I am satisfied that the losses have been calculated based upon primary records of the claimant to establish the losses claimed.
I was advised that statutory payments made to date amounted to $12,811.93 and that this sum was to be deducted. In addition, an advanced payment in the sum of $8,388.07 had been paid to the claimant and this would also be deducted from the settlement.
Upon review of economic loss material and the certificates of capacity, I am satisfied that the losses have been incurred.
Future economic loss
Whilst the claimant has now returned to his pre-injury employment and has recently confirmed he has not taken leave due to injury, it is anticipated that from time to time, his right ankle may flare up and this will likely result on economic loss. Such loss will be intermittent.
A buffer of $30,000 has been made for such ongoing loss to his earning capacity into the future.
Having regard to the opinion of Dr Montero that there has been full recovery the allowance for future economic loss appears just, fair and reasonable and within the likely potential damages assessment for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the injuries, disabilities, impairments and losses sustained by the claimant as a consequence of the accident.
The claimant’s right ankle injury has resolved, he has recovered and returned to full pre-injury capacity. The claimant confirmed there has been no time off since October 2023.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past economic loss accord with the evidence provided by the claimant as to his earning capacity from his employers’ records and taxation records. I am satisfied that the amount allowed for future economic loss accords with the most likely circumstances but for the accident. The amount agreed by way of a buffer for future economic loss 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 Commission, taking into account the nature and extent of the injuries and the full recovery made by the claimant.
The injuries sustained to his right ankle – a tiny avulsion fracture has healed. There is currently no ongoing treatment and recovery has been confirmed by treating physiotherapist and general practitioner.
The past economic losses were supported by medical certificates for the period immediately post-accident to 22 October 2023.
The claimant is aware that from his settlement the insurer will deduct the already paid statutory benefits and the advanced payment of $8,388.07. He will receive the balance of $30,000.
I consider the agreed settlement in the sum of $51,200 for past economic loss and future economic loss is just fair and reasonable and within the range of likely damages had the matter been assessed by a Member of the Commission.
CONCLUSION
I am satisfied the proposed settlement of $51,200 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of injuries and losses sustained by the claimant.
I am satisfied the claimant was aware he could seek legal advice but chose not to avail himself of legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant was willing to accept the proposed settlement and his decision to accept it was of his own volition.
I am satisfied the claimant is aware that from the proceeds a sum of $21,200 will be deducted as prepaid statutory benefits and advanced payments. The balance he receives will be $30,000.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the amount of $51,200.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
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