AAL Limited t/as Suncorp (QLD) v Dowdle
[2024] NSWPIC 193
•9 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAL Limited t/as Suncorp (QLD) v Dowdle [2024] NSWPIC 193 |
| CLAIMANT: | Douglas Raymond Dowdle |
| INSURER: | AAI Limited t/as Suncorp (QLD) |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 9 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages; liability wholly admitted; claimant sustained multiple fractures; claimant a professional truck driver having worked in this field for more than 30 years; attempted to return to work for two months after which he was certified to have no earning capacity; insurer conceded claimant entitled to damages for non-economic loss, past and future economic loss; claimant entitled to reasonable and necessary treatment for accident related injuries; Held – settlement within the range of likely potential damages assessment if claim was to proceed to assessment; settlement just, fair, and reasonable; settlement approved for non-economic loss damages in the sum of $471,062.66 in accordance with section 6.23. |
| DETERMINATIONS MADE: | CERTIFICATE 1. Settlement approved in accordance with s 6.23 of the Motor Accident Injuries Act 2017 in the sum of $471,062.66. 2. The insurer is to receive a credit for statutory benefits paid ($120,265.15). |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Mr Douglas Raymond Dowdle was involved in a motor bike crash on
18 September 2021. He was riding his motor bike in Gunnedah and on his approach to the corner of Conadilly and Carroll Streets, the insured driver failed to give way and collided with the bike.
Mr Dowdle was conveyed by ambulance to Tamworth Hospital where he remained for seven days.
Mr Dowdle has made a claim against IGA limited t/as NRMA Insurance (the insurer) the insurer of the at fault vehicle, for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted that Mr Dowdle is entitled to damages for non-economic loss and that he is entitled to payment of reasonable treatment and care for the rest of his life for accident caused injuries pursuant to the Motor Accident Injuries Act 2017 (the Act).
Mr Dowdle and the insurer have reached agreement as to settlement of the claim for damages.
Because Mr Dowdle is not represented by a lawyer, his settlement must be approved in accordance with the Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration.
The claim is for damages for non-economic loss, and past and future economic loss.
THE RELEVANT LAW
Section 6.23(2) and (3) of the Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any requirements of the Act or the Motor Accident Guidelines (Guidelines).
Clause 7.37 of the Guidelines states I must be satisfied the proposed settlement is just, fair and reasonable. The proposed settlement must be within the likely potential damages assessment for the claim were the matter to be assessed by a Member of the Personal Injury Commission (Commission). The matters to be taken into account include the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by
Mr Dowdle. I also must take into account any proposed reductions or deductions in the proposed settlement.
Mr Dowdle also must understand the nature and effect of the proposed settlement and be willing to accept the amount.
DOCUMENTS CONSIDERED
I have considered the documents provided by the insurer in their application, including but not limited to submissions, claim form and application for common law damages, correspondence between the claimant and insurer, reports by Dr Nair, Dr Rouse, Dr Meads, clinical notes, radiology, rehabilitation reports, OT driving assessment report, financial material, statement and particulars, and settlement documents.
REVIEW OF THE EVIDENCE
At the time of the accident, Mr Dowdle was 63 years old. He was working as a full-time truck driver. He also carried out part-time work in the Gunnedah region offering lawn care for members of that community. He was the primary carer for his wife. She had retired a few years prior as she was diagnosed with Emphysema, poor mobility, and leg circulation.
He considered himself to be in good health and was fit.
Consultant surgeon Dr Frank Sardelic cared for Mr Dowdle at Tamworth Hospital. His report dated 24 September 2021 describes Mr Dowdle’s injuries as an intramuscular haematoma of his left upper trapezius, a haematoma of the spleen, but he was haemodynamically stable and was treated conservatively. He had a mildly displaced avulsion fracture of the posterior tibial plateau and a fracture of the fibular head. He had injuries to his right forearm.
The doctor reported by mid-October 2021, Mr Dowdle was doing well after discharge from hospital with no report of abdominal pain. He continued having symptoms in his forearm and right knee. His spleen was well healed.
The insurer arranged for Mr Dowdle to be examined by Dr Nair orthopaedic surgeon on
9 November 2023. Dr Nair noted Mr Dowdle reported ongoing pain and discomfort in his right knee and wrist. Dr Nair assessed whole person impairment combined percentage of 18%.
Mr Dowdle commenced working for JR Richardson & Sons on 5 July 2021, two months pre-accident. Records showed Mr Dowdle had worked in the field of transport for over 30 years.
The role included heavy physical activities such as mechanical repairs and maintenance, man-handling bins loading and unloading goods.
Records demonstrate his weekly earning were $991.15 net per week. Mr Dowdle agrees this record is correct.
He briefly returned to work after the accident from June to August 2022. Due to ongoing restrictions and symptoms in his right wrist, he ceased work in September 2022 and has not worked since.
The insurer has calculated past loss of earnings from the date of the accident until
12 March 2024 less the 14 weeks the claimant returned to work. During these 14 weeks, the insurer conceded a 50% loss of earning capacity. The total allowance was rounded up to $150,000.
Dr Nair accepts Mr Dowdle was totally and permanently disabled and unlikely, in the future, to have any earning capacity considering his age.
THE PROPOSED SETTLEMENT
The insurer calculated the offer of settlement in the sum of $471,062.66 (amended).
I held a preliminary conference on 4 April 2024. Mr Dowdle and his daughter participated in the conference. He told me the accident had completely changed his life. He has lost mobility, and he finds it difficult to accept he could no longer work. He said he was very keen to settle his claim.
The proposed settlement amount is for non-economic loss, past and future economic loss, Fox v Wood and past superannuation. The insurer is to receive a credit for paid statutory weekly payments.
The insurer has conceded Mr Dowdle is entitled to damages for non-economic loss. Non-economic loss is defined in the Act to mean pain and suffering, loss of amenities of life, loss of enjoyment of life and disfigurement/scarring. The amount proposed for this head of damage is $220,000.
At the preliminary conference, the insurer’s representative advised that the amounts proposed for past economic loss and statutory benefits set out in their submission had changed and consequently, I have been provided with the following update.
The paid weekly benefit has increased from $115,933.15 to $120,265.15.
The list of past weeklies in the amount of $118,532.35, including Fox v Wood figure of $12,599 (remain the same amount); email from the Statutory benefits claims team advising of pending payments; screenshot evidencing the pending/scheduled payment of $866.40 (for the period 7 to 13 April 2024) with a schedule send date of 11 April 2024.
The insurer submits past economic loss ought to be calculated as follows: loss of $991.15 net per week from the date of the motor accident to 13 April 2024, aside from the 14 weeks the claimant returned to work for which it has made allowance for 50%, totalling $125,876.05; plus superannuation of 10% totalling $12,587.61; plus Fox v Wood of $12,599; totalling $151,062.66.
The insurer says it is content to forward the further Deed of Release with the amended figure of $471,062.66 to account for the increased payback.
The amended Deed of Release has been executed by both parties and provided to me.
The total amount of the proposed settlement sum is $471,062.66, which includes the amount for non-economic loss of $220,000 plus $100,000 for future economic loss. After the statutory benefits paid to Mr Dowdle are deducted, the net sum Mr Dowdle will receive is $350,797.51. In a message from the insurer, these figures have been confirmed to be correct.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied Mr Dowdle is aware the settlement finalises his entitlements to further common law damages under the Act.
I am satisfied that Mr Dowdle is aware of his rights to have his reasonable treatment expenses paid for the remainder of his life.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Mr Dowdle.
I am satisfied Mr Dowdle is aware he can seek legal advice but does not wish to do so.
I am satisfied Mr Dowdle understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising from the accident. I am satisfied Mr Dowdle is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of Mr Dowdle’s claim for damages in the sum of $471,062.66.
0
0
0