AAI Limited t/as GIO v Vidler
[2024] NSWPIC 430
•12 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Vidler [2024] NSWPIC 430 |
| CLAIMANT: | Raymond Vidler |
| INSURER: | AAI Limited trading as GIO |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 12 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; claimant self-represented retired male injured in a motorbike accident; claimant suffered significant laceration injuries to the lower limbs; claimant underwent left knee reconstruction surgery as a result of injuries; claimant suffered scarring; insurer conceded non-economic loss threshold; claimant can no longer maintain his lawns, cannot drive motorbikes due to fear avoidance and pain; pain with exercise; Held – settlement approved. |
| 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 $240,000. 2. The proposed settlement is approved for the purposes of s 6.23 of the Motor Accident Injuries Act 2017. |
Reasons for Decision
BACKGROUND
Mr Raymond Vidler (the claimant) suffered injuries as a result of a motor vehicle accident which occurred on 1 December 2021.
He was the rider of a motorcycle in Seaforth, New South Wales, when a utility vehicle rear-ended his motorcycle. The claimant suffered significant leg injuries.
A claim for statutory benefits was lodged by the claimant on or about 14 December 2021, with AAI Limited trading as GIO (the insurer), the compulsory third party insurer of the vehicle considered at fault.
The claim was accepted, and the claimant has been receiving statutory benefits for treatment and care expenses. As I understand it, no payments of weekly statutory benefits have been made.
The claimant subsequently lodged a claim for damages on or about 22 January 2024. The insurer accepted liability for the damages claim on 20 February 2024.
The claimant is self-represented.
After gathering evidence, including requesting particulars from the claimant, the insurer made an offer of settlement via email, and telephone, on 2 July 2024 in the amount of $240,000 for non-economic loss. No allowance for economic loss was made.
The claimant accepted the offer via return email on the same day.
An “agreement of release” was signed by the parties which formalised the proposed settlement.
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 5 August 2024.
The content of that discussion is relevantly referred to below.
I indicated to the insurer’s representative that I was concerned that a term in the agreement of release technically misrepresented the claimant’s rights. In this regard, the document stated that in consideration of the settlement amount the claimant agrees not to commence legal proceedings in respect of the injuries sustained in the subject accident. I noted that the claimant has an ongoing entitlement to treatment and care, and that involves a right to lodge an application with the Commission in the event of a dispute relating to same.
I made directions regarding the provision of an amended agreement. An amended agreement of release was provided to me via the Commission’s digital portal on 8 August 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. No reply has been received. I have formed the opinion that the application includes sufficient information for me to proceed with the settlement approval.
SUMMARY OF EVIDENCE
An NSW Ambulance crew attended the scene. The relevant report details the claimant suffering significant injuries to his lower limbs, with severe lacerations exposing ligament/muscle/tissue.
He was transported to Royal North Shore Hospital where he was admitted and discharged on 3 December 2021. He was noted to have a left calf laceration and right posterior thigh laceration that was treatment with debridement and repair of the structures.
The discharge summary plan includes an instruction to follow up with the treating orthopaedic surgeon, Dr Dimitri Papadimitriou in the clinic in two weeks for review.
The claimant, however, presented to the emergency department on 7 December 2021 with a concern that his wounds were infected. The discharge summary confirms that he was discharged on the same day with a plan for wound care.
Also before me is a discharge summary that details the claimant having undergone an operation on 23 December 2021 described as a left knee multiligament reconstruction. The summary documents the claimant due to be discharged on 4 January 2022 with instructions to be non-weight bearing in a brace for six weeks. Also recommended was simple analgesia with follow up with the claimant’s GP and Dr Papadimitriou in 2-3 weeks time.
The claimant’s general practitioner (GP) file of NewHealth Medical Centre, Gladesville has been provided. The consultations commence in November 2019, with a note that the claimant’s previous GP had retired.
The file notes a history of major depression.
The claimant fractured his left ring finger in October 2021 following a fall. The treating surgeon, Dr Stewart noted that the claimant would likely have ongoing issues, including arthritic changes.
In addition, the claimant reported knee pain going down stairs and pain lunging over the knee in November 2021 (the month prior to the subject motor accident). He was referred to orthopaedic surgeon, Dr Chia.
An MRI of the right knee of 6 April 2020 is referred to as demonstrating a lateral meniscal tear and mild chondral wearing of the patellofemoral compartment.
Following the accident the claimant attended upon his GP for wound management.
He was seen by orthopaedic surgeon, Dr Papadimitriou, for treatment who recommended surgery. The claimant underwent surgery by way of a left knee reconstruction on
23 December 2021.
Medico-legal evidence
The insurer has obtained a report dated 7 May 2024 of Gothelf, following an examination occurring on 30 April 2024.
The claimant gave a history of previous motorbike accidents, that resulted in injuries such as a fractured left clavicle and fractured right ankle. He also reported previous left knee arthroscopies for meniscal tears.
The claimant denied any real symptoms with his knees prior to the accident – this appears inconsistent with the GP notes that reveal the claimant complaining of knee symptoms the month prior to the accident. Dr Gothelf has not mentioned this inconsistency in his report.
Dr Gothelf diagnosed the following injuries caused by the motor accident:
(a) right leg posterior knee laceration and left leg calf laceration;
(b) right knee strain, multi ligament injury of the ACL, PCL and MCL – however, noted this is likely a typographical error given the site is the left knee, and
(c) right ankle strain, soft tissue injury.
The claimant is recorded as rating his pain as a 1 out of 10, and up to a 6 out of 10 with exercise. He explained that his left knee feels unstable and it feels like it may give way. It was also noted that the left knee swells.
The claimant stated that his right knee was not painful, however, he was bothered by the scarring on the right knee caused by the injuries sustained as a result of the motor accident.
In addition, the claimant complained of ongoing left ankle pain (which is consistent with the GP notes) especially when walking up a ramp.
Dr Gothelf provided an assessment of whole person impairment of 12%. This included a 10% whole person impairment in respect of the left knee injury, with a deduction of 1% for pre-existing impairment. In addition, a 3% whole person impairment was assessed for scarring utilising the TEMSKI scale.
DAMAGES
Non-economic loss
The claimant is a 68 year old male (66 at the time of the motor accident) who lives alone. Prior to the accident he was able to care for himself and maintain his home and lawns. Since the accident he is not able to undertake the mowing of his lawns. Initially, the claimant had a friend visit to help him with his activities of daily living. It appears that the insurer has paid for ongoing lawn maintenance.
It is evident that prior to the accident the claimant very much enjoyed riding motorbikes, with indication that he has previously raced same. The claimant no longer rides motorbikes which appears to be due to a combination of pain and fear avoidance behaviour. The claimant has indicated in his answer to particulars that he fears getting on a motorbike again, and he also fears buses when driving.
It is clear that the claimant is suffering from some psychological symptoms of at least a mild degree, however, on a background of pre-existing major depression.
In terms of physical injuries the claimant suffered significant lacerations that have resulted in bothersome and noticeable scarring.
He has undergone a significant operation by way of knee reconstruction, and is left with ongoing pain in his knee of variable intensity, in addition to ongoing left ankle pain.
Economic loss
No claim for economic loss is made. In the statutory benefits claim form the claimant indicated that he had not lost time from work as a result of the accident and also ticked “retired”.
The report of Dr Gothelf records a history that the claimant was not working at the time of the accident and had sold his company the year prior to the motor accident.
However, the material provided to me includes a file note and email correspondence where the claimant raises his employment situation. A file note of the insurer dated 2 July 2024 records the claimant explaining that he was working with the Navy reserve as at July 2023 but finished up due to his knee issues. It is recorded the claimant stated that “someone new came in” and did not want to award him any new contracts noting that he requested to work from home a lot. The insurer’s representative is recorded to have explained that the offer of settlement does not include an allowance for economic loss, and they were happy to consider a claim if the claimant provided the relevant information.
However, via email the claimant confirmed that he wished to accept the offer made despite the insurer’s representative making it abundantly clear that the insurer would consider a claim for economic loss. The claimant again confirmed that he wished to accept the offer without any allowance for economic loss. The claimant also noted in writing that he had an ongoing entitlement to treatment and care expenses.
I raised the issue of economic loss with the claimant at the preliminary conference. The claimant and myself appeared via video link. The claimant was somewhat vague about his employment situation, and gave indication that he may have suffered economic loss. However, despite repeated explanation from me that he could pursue a claim for economic loss, he very clearly communicated to me that he did not wish to pursue such a claim and instead wished to proceed with the settlement as agreed to.
OTHER CONSIDERATIONS
At the preliminary conferences, I raised with the claimant 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.
The claimant clearly communicated to me that he was aware that he had the right to legal representation and did not wish to engage a lawyer. He indicated that he was happy with his dealings with the insurer and found that they had acted in a transparent and helpful way.
I find that the amended and signed settlement agreement in respect of the proposed settlement appropriately protects the rights of the claimant.
REASONS
I find the settlement amount to be fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission.
There is some doubt as to whether the claimant has suffered economic loss. Noting that the claimant was adamant when he told me that he did not wish to pursue a claim for economic loss, on a background of the claimant declaring that he was retired and had not lost time off work as a result of the accident, and given the history given to Dr Gothelf, I am satisfied the terms of the settlement are fair and reasonable.
On the basis of the above, I approve the proposed settlement in the amount of $240,000 pursuant to s 6.23(3) of the MAI Act.
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