AAI Limited trading as GIO v Martin
[2021] NSWPIC 418
•18 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | AAI Limited trading as GIO v Martin [2021] NSWPIC 418 |
| CLAIMANT: | Andrew Martin |
| INSURER: | AAI Limited trading as GIO |
| MEMBER: | Alexander Bolton |
| DATE OF DECISION: | 18 October 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; section 6.23 of Motor Accident Injuries Act 2017; claimant injured in head-on collision; injuries including fracture to left fourth finger (right hand dominant) soft tissue injuries to neck, post-traumatic stress disorder (PTSD); claimant only had limited time off work; PTSD in remission; finger injury resolved well and surgery unlikely to improve already satisfactory range of movement; settlement for $43,439.77 including statutory benefits of $9,439.77 and balance for past and future economic loss; Held - claimant recovered; settlement approved. |
| DETERMINATIONS MADE: | 1. This proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 3. The proposed settlement complies with clause 7.392 to clause 7.411 of the Motor Accident Guidelines 2017. |
Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017
Introduction
The motor accident the subject of this claim occurred on 6 September 2018, and it is now more than two years after the date of the accident.
The Claimant is not represented by an Australian legal practitioner.
GIO, the insurer, made an offer of settlement to the Claimant on 29 July 2021. The Claimant has said that he proposes to accept the settlement and confirmed this during the course of a preliminary conference on 11 October 2021.
The Claimant requests that the Personal Injury Commission (the Commission) approve the proposed settlement.
The Commission was established on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by clause 3 of Part 2, Schedule 1 to the Personal Injury Commission Act 2020. I am a Member of the Motor Accidents Division of the Commission and clause 148(1) of the Personal Injury Commission Regulations 2020 delegates GIO’s application ‘pending proceedings’ and clause 14B(3) empowers me to determine those proceedings.
Because of the date of the accident, clause 14B(4)(c) provides that the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
Legislative Framework
Section 6.23 of the MAI Act says;
“(1) A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(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 or of or made under this Act or the Motor Accident Guidelines”
Clause 7.38 of the Guidelines says that in considering the settlement I must consider whether:
(a) the proposed settlement satisfies 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 (member of the Commission), taking into account any proposed reductions or deductions in the proposed settlement, and
(c) the Claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Clause 11 of the Commission’s Procedural Direction MA3 provides that the Application must include:
(a) the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage;
(b) the amount of any reductions in the proposed settlement;
(c) the amount of any advance payments made, and
(d) the evidence, documents and materials relevant to the assessment of the proposed settlement figure.
Clause 7.294 of the Guidelines requires GIO to include in its Application details of:
(a) the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage, and
(b) the insurer has provided me with a copy of a letter sent to the Claimant on 29 July 2021 which provides a breakdown of the offer and an explanation of the various components of the offer which the Claimant has accepted.
Clause 7.294.2 of the Guidelines requires the amount of any reductions in the proposed settlement:
(a)GIO has confirmed that an amount will be deducted for past statutory benefits paid of $9,439.77;
(b)GIO has confirmed that there is no payback to Medicare, and
(c)GIO has been put on notice that there might be a payback by way of a statutory charge to Centrelink. Mr Martin has said that this might involve some Jobkeeper payments or family tax benefits. GIO has not been able to obtain a payout figure from Centrelink with respect to any charge, if any, on the settlement monies. GIO has however, calculated a potential payback, in the amount of $8,380.80. This amount is not likely to be relevant or payable because Mr Martin has not been in receipt of unemployment benefits as a result of the accident and wage losses have been paid by GIO. Mr Martin has been in receipt of Jobkeeper payments arising out of COVID-19 issues but not any other payments, I am informed.
Of the offer made by GIO of $43,439.77, GIO will deduct $9,439.77 leaving a balance clear to Mr Martin of $34,000. This figure consists of an allowance made by GIO for past economic loss of $5,000 which represents loss of overtime, and $29,000 for future economic loss.
If Centrelink was to deduct a charge of $8,380.80 from the sum of $34,000 this would leave a balance of $25,619.20. I am satisfied though from the information provided to me by Mr Martin during a teleconference that any payments which he might have received from Centrelink since the accident do not arise directly out of the accident.
Claimant’s injuries and medical evidence
As a result of the accident the Claimant had a fracture of his left fourth finger, together with a soft tissue injury to his neck and post-traumatic stress.
Concerning the Claimant’s finger, Dr Beard in his report of 20 March 2019 noted that an x-ray showed a dorsal fracture subluxation of the PIP joint with a large volar fragment which was impacted. Dr Beard said that the Claimant had a remarkable range of movement of his finger despite the x-ray appearance. He contemplated surgery to move the volar fragment to a better position but concluded that with such a good range of motion already, and only mild discomfort, the concern would be that any form of surgical intervention may not regain the function that he currently had.
In clinical notes of Dr Bailey there is a record on 31 January 2019 that “things going well at work-coping well with managerial side, driving set back psychologically- overcorrecting-hugging the gutter”.
Dr Meakin provided a report for the insurer on 9 June 2020.
It was noted that the Claimant was off work for six weeks before returning to lighter duties but at the time of this examination by Dr Meakin, he was working full time. The Claimant complained of continuing discomfort and a slight loss of range of movement of his injured finger.
Dr Meakin was of the opinion that the Claimant would develop some long term secondary degenerative change in his injured finger. With respect to the Claimant’s finger, Dr Meakin assessed a 1% whole person impairment.
With respect to his psychiatric injuries, the Claimant was assessed by Dr Samuell. He provided a report of 17 July 2020. Mr Martin reported that he had seen a psychologist but had not done so for some time before this examination. Mr Martin reported that his psychologist did not think that he needed more treatment.
Dr Samuell said that Mr Martin had described a significant accident that satisfied the first criterion of a post traumatic disorder. Subsequently, the Claimant experienced
re-experiencing phenomena, an altered mood and avoidance. Dr Samuell said that at the time of examination, the Claimant’s post traumatic disorder was in remission. This was said to be consistent with his injuries and disabilities. Dr Samuell said that at the time of examination, the Claimant had no current disability. He was mentally well and required no steps to improve his condition.At the preliminary conference on 11 October 2021, I discussed with Mr Martin about his post-traumatic stress disorder and that it was diagnosed as being in remission. He understood that this was the case but did have some hesitation about the settlement being once and for all and final. However, as the condition is not bothering him and there is no indication of it returning, he had considered all of his options and was prepared to continue with the settlement.
Should I approve the settlement?
When considering the provisions of s 6.23 of the MAI Act and cl 7.38 of the Guidelines along with the rules and practice directions of the Commission, in deciding whether or not to approve or not approve Mr Martin’s settlement, I need to consider:
a) timing- whether the date of the settlement is more than two years after the accident;
b) appropriateness- whether the amount of the settlement is just, fair and reasonable, and
c) understanding- whether Mr Martin understands the settlement and its terms and the effect of the settlement in ending his claim for damages.
Timing
I am satisfied that the timing requirements of the MAI Act have been met. It is more than two years since Mr Martin’s motor accident, and noting that there is no allowance for non-economic loss.
Appropriateness
The amount of the settlement I am asked to approve comprises the following:
Non- economic loss $nil
Past economic loss $14,429.77 (past payments made under statutory benefits and loss of overtime)
Future economic loss $29,000
Subtotal $43,439.77
Deductions $9,439.77
Total $34,000 inclusive of costs and disbursements.
There is no entitlement to non-economic loss. Dr Meakin assessed the Claimant’s whole person impairment at 1% for physical disabilities. Dr Samuell made no allowance for a whole person impairment of the Claimant’s psychiatric disabilities on the basis that his post-traumatic stress disorder was in remission.
Mr Martin only had a limited time off work and for which he received statutory benefits of $9,439.77. The insurer is to have a credit for the sum of $9,439.77 paid in weekly statutory payments. Mr Martin is entitled to have his reasonable treatment expenses arising from the accident to be paid for the remainder of his life. The insurer is only liable to pay statutory benefits including treatment expenses for five years. Thereafter, the claim may be transferred to Lifetime Care and Support which will be liable for ongoing reasonable treatment expenses.
If a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the accident and injury, Mr Martin should request the insurer to pay that charge as part of its obligation to pay reasonable treatment costs.
I am satisfied that the sum of $5,000 adequately represents any past economic loss since Mr Martin has returned to work full time but may have occasionally not been able to perform overtime.
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states that no allowance may be made for future loss of earning capacity unless Mr Martin establishes that the accident has caused a change in his most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR 1 and Husher v Husher (1999) CLR 138 the High Court confirmed that the fundamental questions to be determined in a case such as this is whether Mr Martin has sustained a loss or diminution in his earning capacity and, if so, whether that loss or diminution will result in economic loss.
Having considered the reports of Dr Meakin and Dr Samuell and noting that the Claimant has made a good recovery from his injuries and has also returned successfully to full time work, I am satisfied that the allowance of $34,000 for future economic loss is an appropriate allowance taking into account the nature of Mr Martin’s injuries, his limited ongoing disabilities and his age. It is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine – see Penrith City Council v Parks [2004] NSWCA 201.
Understanding
Having spoken to Mr Martin, I am satisfied that he:
a) accepts the insurer’s offer and wishes to finalise his claim now;
b) is aware that he can seek legal advice but does not wish to do so, and
c) understands the binding nature of the settlement and this approval and that he may not be able to make a further for damages in the future.
Conclusion
I am satisfied that the proposed settlement figure of $43,439.77 less deductions is appropriate and that it complies with the requirements of clause 7.38 of the Guidelines in that it is;
“…just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a [member], 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.”
Pursuant to s 6.23 of the MAI Act, I approve the proposed settlement of the Claimants claim for damages.
Legislation
In making my decision I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017, and
· the Guidelines.
Alexander Bolton
Member (Motor Accidents Division)
Personal Injury Commission
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