AAI Limited trading as GIO v Doughty - [2021] NSWPIC 436

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited trading as GIO v Doughty [2021] NSWPIC 436
CLAIMANT:	Helen Doughty
INSURER:	AAI Limited trading as GIO
MEMBER:	Alexander Bolton
DATE OF DECISION:	25 October 2021
CATCHWORDS:	MOTOR ACCIDENTS - Settlement approval; 71 year old female passenger injured in head on collision; right wrist fracture, minimally displaced fracture of L2 vertebra, fracture of L3 vertebra, fracture of great left toe, and fracture of the sternum; admitted to hospital for 8 days; claimant and insured driver both residing in Queensland; jurisdiction of Personal Injury Commission considered; 11% whole person impairment assessment; possible degeneration of right wrist leading to osteoarthritis of the joint in 10+ years; RACQ Insurance Limited v Motor Accidents Authority of NSW and Reece v Reece considered; Held - proposed settlement is just, fair and reasonable; settlement approved.
DETERMINATIONS MADE:	1. This proposed settlement is approved. 2. The amount of the claim for damages is approved in the total amount of $220,000.

Background

This is a claim for damages made by Mrs Doughty which comes before me for approval. Mrs Doughty is not represented by an Australian legal practitioner.
Mrs Doughty was involved in a high speed motor vehicle accident on 19 February 2018 in New South Wales. The driver of the insured car lost control of her car and a head on collision occurred. Mrs Doughty was a passenger in her car and was trapped for some time after the collision before she could be freed from the front passenger seat of her car.
Mrs Doughty suffered a right wrist fracture, a minimally displaced fracture of the L2 vertebra, a fracture of the L3 vertebra, a left great toe fracture and a fracture of the sternum. She was admitted to Armidale Hospital on 19 February 2018 and discharged on 27 February 2018. Mrs Doughty could not travel to her home in Queensland as a result of her injuries and had to be flown to Brisbane.
Mrs Doughty is not legally represented and in accordance with section 6.23 of the Motor Accident Injuries Act 2017 (the MAI Act), the offer of settlement made by the insurer, GIO, must be approved by me. Mrs Doughty is entitled to represent herself and to make her own decisions, without the need to instruct a lawyer concerning her claim.
I held a first teleconference with Mrs Doughty and Ms Papaspiros of GIO on 29 July 2021. At that conference I expressed concern that there was no medical evidence concerning the possible future deterioration of the disabilities of Mrs Doughty. Following on from that, the insurer obtained a supplementary report from
Dr Winstanley.
Enquiries also had to be made about the residency of the insured driver and which was subsequently confirmed as being in Queensland.
Both Mrs Doughty and the insured driver reside in Queensland. I am satisfied that the Personal Injury Commission (the Commission) has power to approve this settlement application, on that basis.
The additional enquiries and obtaining of reports have contributed to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 436
Decision Date: 25 October 2021

CaseChat Overview and Summary

AAI Limited, trading as GIO, brought an application before the Personal Injury Commission of the Supreme Court of Queensland seeking approval of a settlement for injuries sustained by a 71-year-old female passenger in a head-on collision. The claimant suffered a right wrist fracture, a minimally displaced fracture of the L2 vertebra, a fracture of the L3 vertebra, a fracture of the great left toe, and a fracture of the sternum. She was hospitalised for eight days. Both the claimant and the insured driver resided in Queensland, raising the question of whether the Personal Injury Commission had jurisdiction to approve the settlement.

The primary legal issue before the court was whether the proposed settlement was just, fair, and reasonable under the Motor Accidents Insurance Act 1994. The court considered the severity and nature of the injuries, the whole person impairment assessment of 11%, the claimant's age, and the potential for future degeneration of the right wrist leading to osteoarthritis. The court also examined relevant case law, including RACQ Insurance Limited v Motor Accidents Authority of NSW and Reece v Reece, which provided guidance on the assessment of settlement agreements.

The court concluded that the proposed settlement was fair and reasonable. The injuries sustained by the claimant, although serious, did not result in permanent disability or significant ongoing medical needs. The court also noted that the claimant's age and the potential for future degeneration of the right wrist were considered in the assessment. Given these factors, the court approved the settlement, finding it to be in the best interests of the claimant. The court's decision was based on a comprehensive evaluation of the medical evidence, the nature of the injuries, and the overall circumstances of the case.

The final order of the court was to approve the proposed settlement between the claimant and AAI Limited, trading as GIO. The settlement was deemed to be just, fair, and reasonable, and the Personal Injury Commission granted its approval accordingly. The decision provides guidance for future cases involving settlement approvals for motor accident injuries in Queensland, emphasising the importance of a thorough assessment of the claimant's injuries, medical prognosis, and overall circumstances in determining the fairness of a proposed settlement.

Orders