AAI Limited t/as GIO v Solis
[2022] NSWPIC 472
•23 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | AAI Limited t/as GIO v Solis [2022] NSWPIC 472 |
| Claimant: | Elisa Solis |
| insurer: | AAI Limited t/as GIO |
| Member: | David Ford |
| DATE OF DECISION: | 23 August 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 76-year-old female; passenger in an Urban Transit bus; driver of bus braked heavily causing the claimant to fall to the floor of the bus; sustaining acute L1 anterior wedge fracture of the lumbar spine and bilateral rib fractures; no allegation of contributory negligence; insurer conceded claimant entitled to damages for non-economic loss; no claim for past or future economic loss; her proposed settlement is just, fair and reasonable; Held — the proposed settlement is approved under section 6.23(2)(b) of the Motor Accidents Injuries Act 2017. |
| determinations made: | 1. The proposed settlement is approved under section 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
introduction
On the 21 November 2018 the claimant was a passenger on a state transit bus serial number M40 travelling from Lane Park to Town Hall (Park Street). The claimant was standing on the bus when suddenly the bus driver braked suddenly to avoid colliding with another motor vehicle and as a consequence, the claimant was thrown backwards, falling to the floor of the bus and suffered an acute L1 anterior wedge fracture and bilateral rib fractures. She was taken by Ambulance to Sydney Hospital where she was admitted.
The insurer accepted liability for statutory benefits after the 26-week period. The insurer arranged for Dr Ian Barrett, orthopaedic surgeon to assess the claimant’s whole person impairment and I refer to his two reports dated 24 March 2020. In summary,
Dr Barrett assessed the claimant’s whole person impairment at 20% based upon DRE lumbosacral category 1(v) impairment on the basis of greater than 50% compression of one vertebral body without residual neurologic compromise.The insurer therefore conceded the claimant is entitled to damages for non-economic loss.
The claimant was born in November 1945 and is currently 76 years of age. The claimant has only sought damages for non-economic loss and has not sought damages for either past or future non-economic loss.
The claimant is not represented by a lawyer and accordingly, her settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the MAI Act).
I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (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.
I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14 (D) empowers me to determine those proceedings.
Because the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
RELEVANT LAW
Section 6.23 (1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
Section 6.23 (2) (3) of the 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 or the Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement certifies the timing requirements in section 6.23 (1) of the MAI Act;
(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 a claims assessor, taking into the 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, and
(c) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
TELECONFERENCE 4 AUGUST 2022
The insurer lodged the application for approval of the settlement and was referred to me for consideration. I held a teleconference on 4 August 2022.
The claimant participated in person and the insurer was represented by Matthew Seisun.
I advised Mr Seisun the proposed Deed of Release was not included in the documents lodged in the portal. I then arranged for Mr Seisun to lodge the proposed agreement of release in the portal and also forward the Deed of Release by email to the claimant. The claimant subsequently confirmed by email she had read, approved and signed the Deed of Release and hand delivered the Deed of Release to the offices of the solicitor for the insurer.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for non-economic loss in the sum of $150,000 and I consider this amount to be acceptable and within the range likely to be awarded.
I am satisfied the claimant is aware of her right to have reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claimant may be transferred to ICARE who will be liable for ongoing reasonable treatment expense.
Mr Seisun advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges raised, the insurer would pay the charge as a treatment expense in addition to the settlement sum.
CONCLUSION
I find the timing requirements of section 6.23(1) of the MAI Act satisfied where it is now two years since the date of the accident. I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, taking into account the nature and extent of the claim, the injuries, disabilities and impairments sustained by the claimant.
I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and she will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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