AAI Limited t/as GIO v Styles
[2024] NSWPIC 154
•26 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Styles [2024] NSWPIC 154 |
| CLAIMANT: | Peter Styles |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 26 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; rear-end collision involving the claimant as a driver; proposed settlement for non-economic loss and no allowance for economic loss; claimant retired from workforce; injuries included a C3/4 disc herniation, left shoulder and back injuries; claimant underwent a C3/4 laminectomy which did not produce a good result, and claimant experienced anaesthetic awareness during surgery; accidental dental damage during operation; activities of daily living, including playing golf, were worsened after the surgery; Held – proposed settlement approved as being just, fair and reasonable, and within the range of likely potential damages assessment for a claim had it been assessed by the Commission. |
| DETERMINATIONS MADE: | Certificate Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of claim for damages made in accordance with s 7.36 of the Act 1. The claimant and the insurer have agreed to settle the damages claim in the amount of $280,000. 2. The proposed settlement is approved for the purposes of s 6.23 of the Motor Accident Injuries Act 2017. 3. Attached to this certificate are reasons for my assessment. |
Reasons
BACKGROUND
Mr Ghazala Sultana (the claimant) is a 75-year-old male who suffered injuries as a result of a motor vehicle accident which occurred on 14 June 2019.
The claimant was the driver of a stationary vehicle stopped at an intersection in Port Macquarie NSW. The claimant’s vehicle was struck by a vehicle travelling behind. This caused the claimant’s vehicle to move forward and collide with the vehicle in front.
The claimant subsequently lodged an application for personal injury benefits with the insurer. I understand that liability was admitted and the claimant has been in receipt of statutory benefits. Those statutory benefits continued beyond 26 weeks with the insurer accepting that the claimant had suffered a non-threshold injury and the claimant was not at fault for the accident.
On or about 6 November 2023, the claimant lodged an application for common law damages with the insurer. I understand that liability was subsequently admitted by the insurer.
The claimant is self-represented.
The insurer made an offer of settlement via letter dated 9 January 2024 in the amount of $280,000 for non-economic loss. No allowance has been made for either past or future economic loss.
The claimant accepted the offer. Before me is an executed “agreement of release” on
12 January 2024.The insurer subsequently lodged an application with the Personal Injury Commission (Commission) seeking approval of the settlement.
The matter has been allocated to me as a Member of the Commission.
I held a preliminary conference with the claimant and the insurer on 9 February 2024.
At that preliminary conference the claimant confirmed that he was aware of his right to obtain legal representation, however, does not wish to engage a lawyer.
He also indicated that he was aware that the settlement does not affect his entitlement to ongoing statutory benefits for treatment and care.
The claimant confirmed that he understood the terms of the settlement and felt that the proposed settlement was fair and reasonable.
I raised with the parties that I considered the evidence was lacking. In this regard, a central issue in the claim is the claimant undergoing surgery by way of a laminectomy, however, no evidence from the treating surgeon or hospital was available.
Accordingly, I directed that the insurer obtain a copy of the file of John Hunter Hospital. That file was subsequently obtained and made available to me on 25 March 2024.
LEGISLATIVE FRAMEWORK
Section 6.23 of the Motor Accident Injuries Act 2017 (MAI Act) provides:
“(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.”
Clause 7.37 of the Motor Accident Guidelines (the Guidelines) provides:
“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 satisfied the timing requirements in section 6.23(1) of the 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 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.
(d)the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and documents received from John Hunter Hospital. No reply has been received. I am satisfied that there is now sufficient information for me to proceed with the settlement approval.
SUMMARY OF EVIDENCE
At the time of the motor accident the claimant was not working, having retired from the workforce.
Following the accident the claimant was transported to Port Macquarie Base Hospital via ambulance. He was discharged the following day.
The claimant was referred to neurosurgeon, Dr Spittaler who diagnosed the claimant as suffering from a C3/4 disc herniation, increased left shoulder and back pain.
The claimant underwent treatment by way of physiotherapy, and the clinical notes of the general practitioner (GP), Dr Hiles, suggest ongoing issues with the claimant’s neck and left shoulder. However, the claimant is reported to have continued with activities such as golf. However, issues are noted with left arm issues such as him dropping things out of his left hand.
Before me is a report dated 8 February 2021 of Dr Taylor, who assessed the claimant on behalf of Dr Spittaler. Dr Taylor referred to the subject motor accident and noted the claimant had multiple MRI scans over “the last few years”, and had been “completely asymptomatic with no evidence of myelopathy” until that point. It was noted that the claimant was still playing golf and enjoying his normal activities and he had not noticed a difference in his function. However, to me this seems inconsistent with the reports of left arm issues as noted in the GP clinical notes.
Dr Taylor noted he had reviewed the most recent MRI which demonstrated a progression of the canal stenosis at C3/4. Noting the signs of cervical myelopathy and worsening radiological findings, Dr Taylor states that he discussed the case with Dr Spittaler who was happy to offer the claimant a C3/4 laminectomy.
The material from the John Hunter Hospital confirms the claimant underwent a C3/4 laminectomy on 17 May 2021.
The clinical notes from the hospital reveal the claimant unfortunately had an experience of anaesthetic awareness during the surgery. The claimant found this distressing. It was noted that there was a potential for ongoing anxiety from the event and psychological assistance was recommended. It is apparent that the claimant has not sort psychological treatment since the accident.
The claimant also suffered accidental dental damage during the operation during the anaesthetic administration.
The discharge referral from the hospital reveals the claimant was discharged on
20 May 2021.Dr Hiles, GP, has provided a general report dated 3 June 2022 which states the claimant was suffering from very limited mobility in the cervical spine, ongoing severe pain and poor exercise tolerance. He also is reported to suffer from left hand weakness and has further deterioration of adjacent vertebral segments due to immobility. It was noted that the claimant requires assistance with daily tasks and requires weekly physiotherapy treatments.
Unfortunately, the medical evidence suggests the claimant did not have a good result from the surgery, with reported symptoms deteriorating. I asked the claimant directly at the preliminary conference whether he felt that his symptoms and difficulties are worse since his surgery, and he confirmed that this was definitely the case.
The claimant reported to me that he can’t walk distances and has to utilise a walking cane, sometimes two. He reported that simple tasks like shaving is difficult. He noted that he had previously played golf once or twice a week, however, the activity is now too painful.
The claimant also explained he has difficulty with driving and his ability to interact with his grandchildren had been adversely affected by his accident related injury.
OTHER CONSIDERATIONS
At the preliminary conference, I raised with the claimant the fact that he was not represented by a legal practitioner. I made it clear to the claimant that he was entitled to engage a suitably qualified legal practitioner to represent him in his claim. However, he confirmed that he did not wish to engage a lawyer, that he was satisfied with the settlement and that he understood his rights. I formed the impression that the claimant was cognisant of the issues in his case.
I have been provided with a copy of the settlement agreement in respect of the proposed settlement. I find it appropriately protects the rights of the claimant.
REASONS
I find the settlement amount to be 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.
It is appropriate that no allowance is made for economic loss given the claimant’s non-engagement in employment at the time of the accident.
I find the allowance for non-economic loss of $280,000 is appropriate taking into account the claimant’s age, difficulties experienced to date, the surgery, and the ongoing symptoms that adversely affect his enjoyment of life.
I am satisfied that the claimant was aware of his rights, is satisfied with the settlement, and the fact that this settlement would represent a finalisation of his claim for damages.
On the basis of the above, I approve the proposed settlement in the amount of $280,000 pursuant to s 6.23(3) of the MAI Act.
OutcomeDocumentSignee
OutcomeDocumentSignature
0
0
0