Allianz Australia Insurance Limited v Acevedo
[2023] NSWPIC 69
•22 February 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Acevedo [2023] NSWPIC 69 |
| Claimant: | Italia Acevedo |
| insurer: | Allianz Australia Insurance Limited |
| Member: | David Ford |
| DATE OF DECISION: | 22 February 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 46-year-old female passenger in a stationary vehicle struck from the rear by the insured vehicle at an intersection controlled by traffic lights; injuries were a chipped tooth and soft tissue injury to cervical spine entitled to damages for past economic loss only; Held – the proposed settlement is just, fair and reasonable; settlement approved under Section 6.23 (2)(b). |
| determinations made: | CERTIFICATE OF DETERMINATION 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. |
STATEMENT OF REASONS
INTRODUCTION
On 4 October 2020 the claimant was a front seat passenger in a motor vehicle which was stationary at traffic lights at the intersection of Princes Highway and Box Road Sylvania.
It then transpired the motor vehicle being driven by the insured driver collided with the rear of the claimant’s vehicle and because of the collision, the claimant sustained a chipped tooth and a soft tissue whiplash injury of her cervical spine.
The claimant lodged an application for personal injury benefits on 10 October 2020. Subsequently the claimant lodged a common law claim form on 7 July 2022. Liability was admitted by the insurer by letter dated 5 October 2020.
After the accident, the claimant consulted her general practitioner (GP) at the Shire medical practice who referred her to a dentist for her chipped left upper incisor tooth and also to a physiotherapist for her soft tissue whiplash injury.
The claimant underwent dental treatment on 10 November 2020 in which her incisal corner was replaced, and the tooth was filled. She then underwent courses of physiotherapy and began a self-managed gym program.
The claimant is presently 44 years of age. At the time of the accident and up until the present time, she is employed as a legal secretary with a law firm. The claimant took a short period of leave after the accident because of her injuries. The leave was taken as annual leave, however the insurer has agreed to reimburse the claimant such leave and the amount totals $1,570.24 which includes an allowance for superannuation payment.
At the teleconference the claimant advised me she is satisfied with the dental treatment provided to her which involved the repair of her tooth. She has no problems carrying out the duties required of her as a legal secretary and is continuing recommended exercises both at home and at the gym. She wants to resolve her case for the amount proposed.
The insurer conceded the claimant is entitled to damages. The claimant only has a claim for past economic loss including an allowance for superannuation.
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 (the 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 she can carry out the day-to-day tasks required of her by her employer.
The claimant confirmed she 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 (Cth) 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
Sections 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 s 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 , 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
(c) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
TELECONFERENCE 13 FEBRUARY 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. The claimant participated in person and the insurer was represented by Amie Walsh.
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 past economic loss including superannuation in the sum of $1,570.24.
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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