AAI Limited trading as GIO v Robertson - [2022] NSWPIC 347

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited trading as GIO v Robertson [2022] NSWPIC 347
CLAIMANT:	Dane Robertson
INSURER:	AAI Limited trading as GIO
MEMBER:	Susan McTegg
DATE OF DECISION:	24 June 2022
CATCHWORDS:	MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; injury occurred when lower leg pinned between gutter and motor vehicle; liability admitted; ruptured calf muscle; forklift driver; three months absence from work and further three weeks working 4 hours a day; returned to full time work as forklift driver; past and future economic loss only; Held – impairment of earning capacity; settlement approved in the sum of $123,000 including past economic loss of $23,000; buffer for future economic loss of $100,000; settlement just fair and reasonable and within the range of likely damages if claim proceeded to assessment; settlement approved.
DETERMINATIONS MADE:	Settlement Approval Issued under section 6.23 of the Motor Accident Injuries Act 2017 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* (the MAI Act). 3. The proposed settlement complies with s 7.37 of the Motor Accident Guidelines.

INTRODUCTION

On 17 February 2020 Mr Dane Robertson (the claimant) was struck by a motor vehicle when he was standing on the driveway of 76 Alderson Avenue, Liverpool (the accident). As a result of the accident the claimant’s right lower leg was pinned between the gutter and the motor vehicle. Mr Robertson suffered a ruptured lateral calf muscle that required surgical repair. He also suffered an injury to his right forearm as a result of an assault by the at fault driver.
The claimant has made a common law claim against AAI Limited trading as GIO (the insurer), the insurer of the at fault vehicle, for lump sum damages.
The insurer has accepted liability for the claimant’s common law claim for damages in respect of the injury to the right lower leg. The insurer has accepted that the claimant had non-minor injuries.
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $123,000. The insurer is entitled to receive a credit for weekly statutory payments made to the claimant in the sum of $7,937.37. The sum payable to the claimant after that deduction is the sum of $115,062.63.
The offer is calculated as follows:
· Past economic loss $23,000
· Future economic loss $100,000.
Because the claimant is not represented by a lawyer, his settlement must be approved in accordance with the MAI Act.
There is no entitlement to damages for non-economic loss because Mr Robertson has not been able to establish he has sustained a permanent impairment greater than 10%.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 7 June 2022. Mr Robertson participated in person and the insurer was represented by Mr Ian Izzard.

JURISDICTION

The Personal Injury Commission…

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: [2022] NSWPIC 347
Decision Date: 24 June 2022

CaseChat Overview and Summary

AAI Limited, trading as GIO, sought approval of a settlement with Mr Robertson, who sustained injuries in a motor accident. The injury occurred when his lower leg was pinned between a gutter and a motor vehicle, leading to a ruptured calf muscle. Liability had been admitted by the defendant. Robertson experienced a three-month absence from work followed by an additional three weeks working four hours a day before returning to full-time work as a forklift driver. The settlement sought approval for past and future economic loss only. The court was required to determine whether the proposed settlement was fair and reasonable under section 6.23 of the Motor Accident Injuries Act 2017.

The court assessed whether the settlement adequately reflected Robertson’s injury and potential future economic loss. Given the nature of the injury and the extent of the time off work, the court considered the impairment of earning capacity. The settlement included $23,000 for past economic loss and a buffer of $100,000 for future economic loss. The court concluded that the settlement was just, fair, and reasonable, falling within the likely range of damages if the claim had proceeded to assessment.

In approving the settlement, the court acknowledged the specific circumstances of Robertson’s injury and recovery, as well as the pragmatic approach of settling for an amount deemed fair and reasonable under the statutory framework. The settlement was approved in the sum of $123,000, which included the $23,000 for past economic loss and a provision for future economic loss of $100,000.

Orders