AAMI v Banh
[2022] NSWPIC 68
•8 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | AAMI v Banh [2022] NSWPIC 68 |
| CLAIMANT: | Tang Banh |
| INSURER: | AAMI |
| MEMBER: | David Ford |
| DATE OF DECISION: | 8 February 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 81-year-old female; husband of the claimant fatally injured in a motor vehicle accident; claimant lodged an application for Compensation toRelatives Act 1897; no allegation of contributory negligence made; claim for funeral expenses; past and future loss of services, installation of home security system; Held- proposed settlement is just, fair, and reasonable; the proposed settlement is approved under section 6.23 (2)(b) of the Motor Accident Injuries Act 2017. |
| 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 (the Act). 3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
Amended Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017
Determinations made:
The proposed settlement is approved under section 6.23 (2)(b) of the Motor Accidents Injuries Act 2017 (the MAI Act).
The proposed settlement complies with clause 7.38 of the Motor Accident Guidelines 2017 (the Guidelines).
Introduction
The claimant has made a claim for damages pursuant to the Compensation to Relatives Act 1897 following the death of her husband, the Late Tang Banh who was fatally injured in a motor vehicle accident on 23 October 2019. The late Tang Banh was a pedestrian and was walking along the driveway of premises at 53 Hill Street Cabramatta when he was struck by a motor vehicle being driven by the insured’s driver. The late Tang Banh, as a consequence of the collision, fell to the ground and suffered serious head injuries which subsequently resulted in his death.
The Late Tang Banh was born in 1934. The claimant was born in 1940 and is now 81 years of age. At the date of the accident the claimant and the late Tang Banh were married and residing together at Cabramatta.
On 15 December 2019 the claimant lodged an application for compensation to relatives. The insurer accepted liability by correspondence dated 5 May 2020 and there was no allegation of contributory negligence made.
The insurer made an offer to settle the claimant’s claim for damages on 4 March 2021. The insurer submitted a compensation to relatives agreement which was signed by both the claimant and the insurer and dated 7 November 2021. The settlement proposes the insurer will pay to the claimant the sum of $116,007.27. The agreement further states the insurer is entitled to deduct the sum of $85,141.77 previously paid to the claimant or on her behalf by AAMI.
The total amount of the settlement is $116,007.27 which comprises the following heads of damage:
(a) Past loss of financial dependency $Nil
(b) Future loss of financial dependency $Nil
(c) Funeral expenses $79,588.01
(d) Past loss of services $22,948.76
(e) Future loss of services $12,470.50
(f) Installation of home security system $1,000
The insurer also confirms they will be entitled to deduct the following amounts which have been paid to date:
(a) Funeral expenses $79,588.01
(b) Past commercial Services $5,553.76
Total $85,141.77
The insurer confirms it will not deduct any amount for Centrelink or Medicare Australia from the agreed settlement.
The balance of the settlement is $30,865.50 and it is agreed this amount will be paid in full to the claimant.
The claimant is not represented by any lawyer. She instructed her son, Viquang Banh to represent her at the various teleconferences.
I have decided to approve the proposed settlement as submitted in this application.
Jurisdiction of the Personal Injury Commission
The Personal Injury Commission (the Commission) was established on 1 March 2021 and the dispute resolution service was abolished by clause 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 clause 14 (D) empowers me to determine those proceedings.
Because the date of the accident clause 14D(3)(b) provides the MAI Act and the Guidelines continue to apply.
The 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 certifies the timing requirements in section 6.23 (1) of the 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 claims assessor, taking into the account the nature and extent of the claim made pursuant to the provisions of the Compensation to Relatives Act 1987 and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) I accept from my discussions with the son of the claimant, the claimant understands the nature and the affect of the proposed settlement and was willing to accept the proposed settlement.
Teleconference 4 November 2021
I refer to my first teleconference report dated 4 November 2021. I refer to the following paragraphs from my report:
“h) I advised the solicitor for the insurer I was concerned with the terms of the said agreement of release dated 8 September 2021 which stated, inter alia the following
In consideration of the payment you agree.
i.Not to commence or continue with any legal action in relation to the injuries you received in the accident.
ii.To release from any further legal responsibility of the owner or driver and AAMI for common law damages. This includes any other person, or any other organisation associated with the owner or driver.
i) I immediately raised a concern this agreement for release would bar the claimant from bringing an application for common law damages, if so entitled, in respect of a mental harm claim.
J) The claimant’s representative, Mr Banh, who is the son of the claimant advised me they had considered making such a claim on behalf of the claimant and this had been discussed amongst his siblings and he was not aware of the fact the proposed agreement for release meant any proposed application for common law damages would not entitle the claimant to make such a claim.
k) Therefore, in view of this response, I recommended to the son of the claimant to forthwith seek independent legal advice as to whether or not such a claim could be made on behalf of the claimant and also, perhaps, on behalf of himself and his siblings. Mr Banh confirmed he would now seek such independent legal advice.
l) The solicitor for the insurer advised me he would now seek to have the agreement for release re-drafted to ensure the agreement only resolved the compensation to relatives claim and not any other application for common law damages which may be brought by the claimant.
m) Mr Banh also expressed some concern the amount proposed by the insurer in respect of future loss of services was inadequate and this had been discussed amongst his siblings. I then again advised Mr Banh to seek independent legal advice on behalf of the claimant with regard to whether the amount proposed by the insurer is adequate. Mr Banh confirmed he would also seek such advice.
n) In the circumstances I consider it appropriate to have the matter postponed to a further teleconference. I advised Mr Banh I would email him my first teleconference report as it may be difficult for him to access such a report on the portal.”
Teleconference 30 November 2021
I refer to my teleconference report dated 30 November 2021 and the following paragraphs:
“a) The claimant’s representative, Mr Banh, who is the son of the claimant advised me initially he was instructed by his mother to resolve the compensation to relatives claim for the said sum proposed in the amount of $116,007.27.
b) I then asked Mr Banh was he content to accept the sum of $12,470.50 for future loss of services as specified in the insurer’s submissions (document A1) dated 5 October 2021.
c) Mr Banh advised me he thought if his mother brought a separate claim for mental harm then she could make a further claim for future loss of services. I advised Mr Banh this agreement ensured she could not claim any further monies for future loss of services.
d) Mr Banh has made an attempt to instruct a solicitor to advise him in relation to whether or not his mother can make a separate claim for mental harm. In my first teleconference report I had advised Mr Banh to seek independent legal advice on behalf of the claimant with regard to whether the amount proposed by the insurer is adequate. Mr Banh advised me he had contacted a solicitor in Fairfield but was not able to make an appointment to see that solicitor until March 2022.
e) I then advised Mr Banh to contact the Law Society of NSW and obtain details of Personal Injury Specialist Lawyers whom he could contact and seek independent legal advice and also make the appropriate inquiry on the internet. Mr Banh again confirmed he would seek such advice.
f) In the circumstances, I again consider it appropriate to have the matter postponed to a further teleconference. I advised Mr Banh I would again email him this second teleconference report as it may be difficult for him to access such a report on the portal.”
Email Correspondence from Viquang Banh dated 8 December 2021
On 8 December 2021 I received an email from Viquang Banh in which he stated the following:
“Hi David and Ian,
After our family meeting we decided not to pursue family shock and trauma with the lawyer. Could you please arrange the next step for us to accept the agreement.”
Teleconference 13 December 2021
I refer to my third teleconference report dated 13 December 2021. I was advised by the claimant’s representative Mr Banh he confirmed the advice provided to me by email dated 8 December 2021 and in the circumstances, he had been instructed by the claimant, after consultation with the rest of his siblings, the claimant did not wish to pursue a separate claim for mental harm and furthermore, the claimant wished to accept the proposed settlement made by the insurer.
Should I approve the settlement
I am satisfied it is appropriate in this matter to approve the damages proposed in the sum of $116,007.27 in respect of the compensation to relatives claim made by the claimant and I consider this amount to be acceptable and within the range likely to be awarded.
I confirm the insurer has stated it will not deduct any amount for Centrelink or Medicare Australia from the agreed settlement.
CONCLUSION
I find the timing requirements of section 6.23 (1) of the MAI Act satisfied.
I am satisfied the proposed settlement is just, fair and reasonable and 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.
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 pursuant to the provisions of the Compensation to Relatives Act 1897.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23 (2)(b) of the MAI Act, I approve the settlement of the claimant’s claim pursuant to the provisions of the Compensation to Relatives Act 1897.
David Ford
Member (Motor Accidents Division)
Personal Injury Commission
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