AAI Ltd t/as GIO v Axiotis
[2023] NSWPIC 223
•12 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Ltd t/as GIO v Axiotis [2023] NSWPIC 223 |
| CLAIMANT: | Helen Axiotis |
| INSURER: | AAI Ltd t/as GIO |
MEMBER: | David Ford |
| DATE OF DECISION: | 12 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 85-year-old female pedestrian struck by motor vehicle in the driveway of her home; sustained serious to left tibia and left ankle; complications after surgery which also caused gradual progression of pre-existing dementia; whole person impairment assessed at 37%; claimant is a pensioner entitled to damages for non-economic loss only; Held – the proposed settlement is just ,fair and reasonable; settlement approved under section 6.23 (2)(b). |
| DETERMINATIONS MADE: | 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 18 February 2020 the claimant was injured in an accident when the claimant's late husband attempted to reverse his motor vehicle out of the garage at the family home, when he misjudged the acceleration, and struck the claimant as well as the garage structure.
Police and ambulance attended the scene of the accident, and the claimant was transported to St George Hospital. At the hospital, she was diagnosed with the following injuries:
(a) open bi-malleolar left ankle fracture managed with a fibular nail, K-wire fixation, and an external fixator.
(b) left tibial plateau Shatzker 2 fracture managed in an external fixator.
(c) vascular injury to anterior tibial artery with repair by vascular surgery as a complication of initial operation, and
(d) split skin graft to left lower leg.
Upon her admission to the hospital, she experienced further medical complications which included anaemia with iron deficiency, multifactorial delirium, recurrent fevers, liver function derangement, UTI, malnutrition, severe electrolyte disturbance, labile BP and severe deconditioning.
She was subsequently discharged from St George Hospital on 15 May 2020 and admitted to a nursing home for respite care, where she remained for three months. She now resides in her home and is receiving care and assistance from her children as well as commercial care provided for by the insurer.
The claimant was born in 1938 and is presently 85 years of age. The insurer arranged for her to be examined on a medico legal basis by Professor Cameron and I refer to his report dated 10 November 2021. In addition to the injuries referred to above, he diagnosed the claimant suffers from additional cognitive disabilities, following the severe delirium suffered whilst in hospital. Professor Cameron assessed her whole person impairment at 37%, and accordingly she is entitled to damages for non-economic loss.
I also note from his report he states she was independent in self-care and household tasks prior to her accident, and he considers there will be a gradual progression of the pre-existing dementia which will increase her support requirements in the future.
At the preliminary teleconference, the claimant was represented by her two children, Sam Axiotis and Zoe Axiotis. They both advised me their mother wishes to accept the proposed settlement.
The insurer conceded the claimant is entitled to damages. The claimant has a claim for non-economic loss only.
I consider the settlement is appropriate in all the circumstances of this case.
The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act). I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.
I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14 (D) empowers me to determine those proceedings.
Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
I am satisfied the claimant is aware of her right to have reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter, the claimant may be transferred to ICARE who will be liable for ongoing reasonable treatment expenses.
The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, taking into account the nature and extent of the claim, the injuries, disabilities and impairments sustained by the claimant.
I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and she will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
Section 6.23 (2) (3) of the MAI Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) 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, taking into the 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, and
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
PRELIMINARY TELECONFERENCE 1 MAY 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 8 May 2023. The claimant participated in person and the insurer was represented by Adriana Pasaspiros.
The proposed deed of release was lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for non-economic in the sum of $240,000.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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