AAI Limited t/as GIO v Pateman
[2024] NSWPIC 533
•11 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Pateman [2024] NSWPIC 533 |
| CLAIMANT: | Malcolm Pateman |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 11 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; proposed settlement; claimant 55 years old; liability admitted; economic loss damages only; claimant’s earnings increased since the accident; Held – settlement in the amount of $70,000 is just, fair and reasonable; within the likely potential damages assessments taking into account the nature and extent of the claim. |
| DETERMINATIONS MADE: | REPLACEMENT 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 29 May 2023, Mr Malcolm Pateman (the claimant) was injured whilst driving his Ford Territory approaching the intersection of Valley and Bathurst Road, Katoomba when the insured’s driver pulled out into the pathway of the Ford Territory causing a motor crash.
Mr Pateman made a claim against AAI Limited t/as GIO (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 Pateman is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
Mr Pateman and the insurer have reached agreement as to settlement of the claim for damages.
Because Mr Pateman 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 Pateman have agreed he is entitled to damages for 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 Pateman, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) Mr Pateman 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, liability notice, clinical notes, medical certificates, scans, payslips, a medical report from occupational physician Dr Thomas Rosenthal and communications between the parties.
REVIEW OF THE EVIDENCE
Mr Pateman is 55 years old.
At the time of the crash, he was wearing a seatbelt. The insured driver pulled out of his driveway into the path of Mr Pateman’s vehicle. He says he attempted to swerve to miss the collision, but the impact was to the passenger’s side door which pushed him to the other side of the roadway. Although he managed to drive his car home, his vehicle was deemed a write-off.
He says initially he was in a state of shock. He noticed an onset of pain in his lower back which deteriorated over time.
He took himself to Lithgow Hospital where an X-ray revealed a fractured sacrum. He was ordered bed rest and prescribed strong pain killers. He was off work for three months.
He was working for Coles as a delivery driver at the time of the crash. This work involved lifting heavy boxes in and out of a delivery truck. He resigned from this job and was successful securing employment driving a cement truck.
He told me this work does not involve any physical activities and he feels he can continue to work until retirement and hopes to continue working albeit part-time thereafter.
This position earns him an increase in his wages, and he told me he sees no reason why there is any threat to his future employment.
Dr Rosenthal examined Mr Pateman for the purpose of a medico-legal opinion on
12 June 2024. The doctor noted Mr Pateman has no particular disabilities from the crash and confirmed the fractured sacrum has fully healed.
He did believe Mr Pateman requires bending and lifting restrictions. Otherwise has no ongoing restrictions.
PRELIMINARY CONFERENCE AND ECONOMIC LOSS
On receipt of the application of the proposed settlement agreement, I reviewed the documentation. Initially I did have a concern that the most likely future circumstance but for the accident would see Mr Pateman working in a high-risk physical job involving heavy lifting and bending.
However, when I raised my concern with him at the preliminary conference, he assured me the position he now works in does not involve any heavy lifting or bending. He appeared to me to be a stoic man, anxious to get on with his life and very happy with his current working arrangements.
He was earning net average weekly earnings of $828.30 with Coles. He told me he earns substantially more than this in his current position.
The insurer has paid statutory benefits in the sum of $13,932.24.
He was off work for 15 weeks and after allowing $828.30 loss per week plus loss of income tax paid and loss of superannuation, the proposed past loss has been rounded up to $20,000.
Although Mr Pateman is in a better financial position post the crash, the insurer has considered he may experience some level of future impairment to his earning capacity and may require a day here and there off work and as such propose a buffer of $50,000 for future economic loss.
SHOULD I APPROVE THE SETTLEMENT
I gave Mr Pateman every opportunity to tell me if his life had changed since the crash. His stoic approach to his future confirmed with me he has made an excellent recovery and providing he looks after his health should live a full and normal life without any impairment to his earning capacity.
He understood he was entitled to legal representation but did not wish to engage a lawyer.
He further understood Dr Rosenthal’s assessment of non-economic loss and agreed he was not entitled to damages for this head of damage.
I am satisfied Mr Pateman is aware the settlement finalises his entitlements to further common law damages under the Act.
I am satisfied that Mr Pateman is aware of his rights to have his reasonable treatment expenses paid for the remainder of his life.
I am satisfied Mr Pateman is happy with the amount of $70,000 of which he will receive in his hand $56,067.76.
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 Pateman
I am satisfied Mr Pateman 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 Pateman 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 Pateman’s claim for damages in the sum of $70,000.
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