AAI Limited t/as GIO v Roach
[2025] NSWPIC 35
•3 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Roach [2025] NSWPIC 35 |
| CLAIMANT: | Jordan Thomas Roach |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 3 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; $55,000 economic losses only; 24-year-old mechanic; approved under section 6.23(2)(b); lacerations to liver and spleen now healed; right shoulder soft-tissue injury also healed; 0% WPI; closed period past economic loss and small buffer for future; Held – settlement complied with clause 7.37 of the Motor Accident Injuries Guidelines version 9.3. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement in the sum of $35,000 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 Injuries Guidelines version 9.3. |
STATEMENT OF REASONS
INTRODUCTION
Jordan Thomas Roach (the claimant) was a front seat passengere in the insured’s vehicle which crossed onto the incorrect side of the road colliding with another vehicle on 16 September 2023. He was 22 years of age at the time.
The claimant was transported John Hunter Hospital by ambulance for treatment. He was discharged from hospital into the care of his general practitioner on 20 September 2023.
The claimant’s sustained a internal abdominal injuries and injury to his right shoulder in the accident.
The claimant attended upon his general practitioner Dr on a minimal basis therafter confirming his injuries have completely resolved by the time of this application.
The claimant has been assessed by Dr Mitchell qualified by the insurer to provide an assessment of whole person impairment (WPI), Dr Mitchell reported on 21 November 2024 (document A7) that he sustained internal abdominal injuries as well as soft tissue injury to his right shoulder. All injuries had healed and WPI was assessed at 0%. Upon this basis the insurer and claimant agreed there was no entitlement to non-economic loss.
The claimant brought a claim for common law damages alleging he sustained the following injuries:
(a) liver and spleen lacerations, and
(b) right should soft-tissue injury.
An Application for personal injury benefits was lodged (document A2) on 25 September 2023.
The claimant sought damages for his economic losses.
The insurer admitted liability for the common law claim on 26 July 2024. (Document A3.)
The parties have reached an agreement to settle the claim in the sum of $35,000. The amount represents the sum of $12,164.23 for past economic loss and a buffer of $22,835.77 for future economic loss.
The application before me is for the approval of the settlement reached between the parties.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (MAI Act) requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act and the Motor Accident Guideline version 9.3 (Guidelines) which commence 4 December 2024.
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(a) now 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.
Preliminary conference held on 20 January 2025
The conference was conducted via video-link. On this occasion the nature of the settlement was discussed. The claimant advised he held no great concern following an extended period without symptoms or impact on his work and activities of daily living.
The claimant reported he was back at work and had been since 15 October 2023 without further incident. There were no constraints on his ability to perform work related tasks.
He confirmed no current treatment was being undertaken and reported no ongoing symptoms.
At this point I informed the claimant that should he wish to, there was still time to seek legal opinion before the matter was concluded. The claimant confirmed “I don’t need any legal advice and I’m happy with the offer made by the insurer”.
I asked the claimant if he had any questions relating to the settlement and was he aware that the statutory payments already made by the insurer would be credited to the insurer and that whilst the sum of $35,000 was the settlement figure, he would receive a net sum of $24,265.47 in his hand as $10,734.53 would be deducted which represented the statutory payments already paid to him.
He confirmed he was aware of the deduction and had received $10,734.53 from the insurer in weekly payments.
During the conference the claimant was questioned on his understanding of the settlement, its finality, the impact of a settlement and whether he was entering the settlement on his own free will. I am satisfied by his responses, that he is entering into the settlement of his own free will, with understanding of its finality.
The claimant confirmed he knew he could seek legal advice and had chosen not considering there were no ongoing problems.
Statutory payments were confirmed by the insurer in the sum of $10,734.53 as contained in the list of payments annexed to the application at page document (A4).
The parties confirmed their desire for the settlement to be approved and advised there was no other information to be relied upon.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of cl 7.37 of the Guidelines, in that it 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.”
Accordingly, the insurer submitted that the proposed settlement figure of $35,000 be approved.
Claimant’s submission
The claimant confirmed his desire that the settlement be approved by me.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle of 161 pages:
Liability:
(a) Application for statutory benefits dated 17 January 2024;
(d) Application for common law damages;
(e) liability notice dated 26 July 2024;
(f) Deed of Release – dated 12 July 2024, and
(g) submissions of the insurer dated 2 December 2024.
Medical records:
(a) John Hunter Hospital records;
(b) clinical notes Muswellbrook doctors;
(c) clinical records Scone Medical centre;
(d) independent medical examiner (IME) report of Dr Mitchell dated 21 November 2024, and
(d) Certificates of fitness 23 September 2023.
Financial records:
(a) pre-accident payslips (document A11), and
Claimant’s information
(a) replies to particulars 23 October 2024, and
(b) responses obtained in preliminary conference held 20 January 2025.
Settlement documents:
(a) Settlement Offer dated 25 November 2024, and
(b) Deed of Release dated 27 November 2024.
INJURIES
The claimant’s Application for common law damages noted he sustained the following injuries:
(a) laceration to liver and spleen;
(b) contusion to right eyebrow and
(b) soft tissue injury right-shoulder.
Non-economic loss
As the claimant’s injuries to his abdomen have healed and he no longer has any symptoms to his right-shoulder it has been determined by Dr Robin Mitchell qualified by the insurer, from an assessment undertaken on 18 November 2024 noting no further treatment was required and his physical assessment that all injuries sustained have now resolved. These injuries resulted in an assessment of 0% WPI. He reported:
“…he has made a good recovery from the subject injuries ab no longer has any abdominal problems or right shoulder pain. He is fully independent in respect of personal activities, or ADLs. He can manage normal share of household responsibilities in the home that he share with his partner”. (pp 56-58 bundle)
On the available medical evidence, and noting the successful healing of the injuries to his liver and spleen from the lacerations sustained, I am satisfied that the claimant would not be entitled to non-economic loss as the whole person impairment of his injuries have not exceeded the threshold of 10% WPI required to qualify for such damages.
Past economic loss
At the date of accident the claimant was working full-time as a mechanic for CRJ Maintenance PTY LTD. Records produced at pages 144 and 145 accord with the assessment of pre-accident net pay. The hours worked 40 to 41 hours weekly at the rate of $46.50 hourly. (Documents at pages 144 and 145.)
His net pay was averaged at $1,416.25. The claimant was certified unfit for work due to his injuries and claimed the difference between his pre-accident earning capacity and his actual earnings over the period from the date of accident to 15 October 2023.
The insurer calculated the past economic loss by calculating the expected earning capacity uninjured and subtracted the actual earning capacity and the difference was the established loss. Past losses of $12,164.23 were broken down as follows:
(a) six weeks at $1,416.25 = $8,497.50
Superannuation was calculated at $934.73.
Income tax paid was allowed in the sum of $2,732.
The claimant returned to work on 15 October 2023 and reported no other time off since.
I am satisfied that the past losses agreed to between the parties accords with the financial records produced by the claimant which included pay slip and the medical records and certificates of fitness issued by Dr Alice Munro on 20 September 2023.
Future economic loss
The claimant has not had any further time off work since the initial period to 15 October 2023.
The insurer allowed a buffer of $22,727.90 inclusive of superannuation. The buffer of $25 weekly was considered appropriate against a background of no ongoing loss exhibited since 15 October 2023. The amount was calculated to age 67 the normal retirement age with 15% for vicissitudes of life deducted. In total the sum amounted to $19,936.75. Superannuation on this sum was added at the rate of 14% amounting to a sum of $2,791.15. The sum was then rounded up by a further $107.87 to enable the final sum of damages to equate whole figures.
The claimant confirmed during the preliminary conference he had not required any further time off to date since October 2023.
Noting the claimant’s full recovery the insurer and claimant advised they are both confident that the impact on future economic loss is likely to be very minimal at best.
Dr Mitchell opined “Mr Roach has..a current capacity for any form of work consistent with his education, training and experience, including his current motor mechanic on a full time basis.”
Impact of injuries upon the claimant
The claimant provided information during the preliminary conference, that he was fine now with no ongoing problems. He had not seen any doctors apart from the insurer’s in November 2024. He was back working as a mechanic with not problems. There was no ongoing impact upon him.
REVIEW OF THE EVIDENCE
Clinical records of John Hunter Hospital provided treatment details and wound management. He was provided with bed rest for two days and not requiring strong analgesic medication at the time of discharge. The investigations undertaken revealed:
“…grade II liver injury with subcapcular haematoma and capsular laceration Grade II splenic injury”.
He was discharged with simple analgesia a script for Endone if pain persisted and to avoid heavy lifting (in excess of 5kg) or strenuous exercise for six weeks (page 140 of bundle).
The clinical records of Muswellbrook Doctors revealed no related attendances for accident related injuries.
The records of Scone Medical Centre and Dr Wong revealed for the period 9 November 2000 to 18 November 2024 reported one accident related treatment on 24 October 2024 where he sought clearance to return to work reporting:
“…documentation provided JHH Discharge summary patient was in an MVA 6 weeks ago and resulted in a liver laceration and haematoma as well as splenic injury need clearance to go back to work as a mechanic
patient states no more pain
Eating and drinking normally
Urine and stool reported normal as well”.
This is the only reference in the medical records of both general practitioners produced in the application.
The payslips of his employer provided me with the claimants pre and post injury earning capacity. The losses claimed accord with the primary evidence contained in the payslips.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) the settlement must be approved by the Commission and I am not to approve the settlement unless I am satisfied there is compliance with any of the requirements of the MAI Act and the Motor Accident Guidelines.
I am satisfied that there has been compliance with the MAI Act and the Motor Accident Guidelines as amended.
(b) The insurer to include in its application details of the following:
(i)the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount for past economic loss is $12,164.23, and the amount for future economic loss is $22,835,77.
(ii)The amount of any deductions in the proposed settlement.
The insurer has paid to the claimant statutory payments in the sum of $11,813.58 which it seeks credit. The claimant will receive net proceeds of $24,265.47.
(iii)The amount of any advanced payments made be specified. There had not been any advanced payments made apart from known statutory benefits.
Medical expenses have been met by the insurer and these do not form part of the settlement. Noting no further ongoing treatment there is likely to be no further required.
(iv)The evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have reviewed the clinical and medical records effectively covering the period of injury and the relevant period to date. I note the medical records accord with the claimant’s reported symptoms and periods of incapacity. The financial records provided accord with the claimant’s history of earning capacity and time off work taken due to his injuries.. The information produced by the insurer has given me a good indication of the injuries, treatment and prognosis.
(c) Clause 7.37 Guidelines, requires me to consider the following:
(a)Now obsolete
(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 injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the medical evidence produced in this matter, I am satisfied that the claimant has made good recovery and has returned to work with little ongoing restriction. The amounts allowed for past and future economic loss accords with the facts and likely circumstances but for the accident. I find the sum agreed upon is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission.
(c)The claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner,
(d)the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
The claimant was made aware in the teleconference that in the event he accepted the settlement and it was approved by me, he could not seek any further damages. He was advised that the insurer would still provide ongoing medical treatment and care needs, if required and approved by the insurer based upon medical need. Noting the recovery it was unlikerly any further treatment would be required.
The claimant was also made aware that the insurer would continue to meet any charge issued by Medicare and that the insurer has agreed to reimburse Health Insurance Commission separately, if appropriate.
I am satisfied that the claimant was aware of his rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
CONCLUSION
I am satisfied the proposed settlement of $35,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by the Commission taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant and the recovery.
I am satisfied the claimant was aware he could seek legal advice and but chose not to retain 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 subject 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 $10,734.53 will be deducted from the proceeds of settlement and that he will receive $24,265.47 net.
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 sum of $35,000.
The proposed settlement complies with cl 7.37 of the Motor Accident Injuries Guidelines version 9.3.
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 version 9.3 / Personal Injury Commission Rules 2021.
0
0
0