Allianz Australia Insurance Limited v Beamsley
[2024] NSWPIC 141
•22 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Beamsley [2024] NSWPIC 141 |
| CLAIMANT: | Riripeti Beamsley |
| INSURER: | Allianz |
| MEMBER: | David Ford |
| DATE OF DECISION: | 22 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 30-year-old passenger in a motor vehicle which lost control and veered off the roadway onto a grass median strip; sustained a superior endplate compression fracture of T12 with loss of interior vertebral body height of 25%; no surgical intervention; prior to the accident had been working in harvesting and cleaning jobs; not working at the time of the accident; subsequently commenced work as a stable hand but found this work to be too onerous; thereafter obtained part time employment as a food delivery driver; still experiences intermittent lower back pain on a regular basis; pain is aggravated by lumbar extension; insurer conceded claimant had sustained a non-threshold injury; liability admitted; entitlement to non-economic loss; claim for non-economic loss and future economic loss; total settlement $345,000; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE 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 31 July 2022 Riripeti Beamsley (the claimant) was a passenger in a motor vehicle being driven by her partner along the Pacific highway at Halfcreek Creek. Suddenly, without warning, the vehicle veered to the left, and drove onto a grass median strip, out of control, before coming to a stop.
As a consequence of the accident, she sustained an injury to her lower back and bruising to the left lower limb. She was taken by ambulance to Coffs Harbour Hospital, where she was diagnosed with a superior endplate compression fracture of T12 with the loss of interior vertebral body height of 25%. She was discharged from hospital and returned home. She subsequently consulted her general practitioner and underwent eight sessions of physiotherapy over a period of eight weeks. She has had no surgical intervention.
The insurer wholly admitted liability on 15 August 2023. The insurer has conceded she sustained a non-threshold injury.
The claimant was born in 1994 and is presently 30 years of age. At the time of the accident, she was not working. Prior to the accident, she had been working in harvesting and cleaning. Details of her pre accident weekly earnings are set out in paragraph 6 of the insurer’s submissions. In December 2022, she commenced working as a stable hand with Ciaron Maher Racing. She was working part time, four hours per day, seven days per week for a period of three months, cleaning stables and walking horses. She was required to lift objects over 20kg in weight. She found this work was too difficult for her to undertake adequately. She resigned from this employment, and from November 2023 up until the present time, she works as a delivery driver for Door Dash on a casual basis three hours per day, three days per week. Her average weekly earnings are presently $300 net.
The insurer arranged for her to be seen on a medico legal basis by Dr Andrew Keller, occupational physician, and I refer to his report dated 19 December 2023. He carried out a physical examination of her and noted her present complaints. On page 3 of his report, he noted she experiences intermittent lower back pain, which is present three days a week and lasts up to 60 minutes. She rates the pain up to 7/10 on an intensity scale where 10 is most severe. The pain is aggravated by lumbar extension. She reports no other pain or disabilities.
He records she is independent in self-care tasks. She can do cooking, cleaning and yard work and has no paid cleaner or gardener. She spends her days doing Door Dash, driving up to nine hours per week. She goes for a morning walk each day and does home exercise with weights over 10kg. Each day she can attend the shops, four times per week and she likes to do canvas painting as a hobby. She informed Dr Keller she rests in bed up to four times a week, for 30 to 60 minutes. Dr Keller was of the opinion she had recovered the full capacity for work full time, without restrictions.
I refer to my preliminary conference report dated 6 March 2024 wherein I advised both parties, I was not prepared to recommend the settlement proposed by the insurer, as I was not prepared to recommend to the claimant, she accept the sum of $25,000 in resolution of her future economic loss claim. The sum of $25,000 was proposed in the form of a buffer for her future economic loss. There was no allowance for past economic loss, which in the circumstances, I considered to be appropriate.
I considered the amount proposed for future economic loss was not appropriate having regard to her complaints as recorded in the report of Dr Keller, which I have referred to above in paragraph 5. The parties then advised me they wish to continue settlement negotiations in relation to damages for future economic loss and, I therefore arranged the matter to be postponed to a further preliminary teleconference on 20 March 2024, I advised the parties I considered the amount proposed for resolution of the claim for non-economic loss was appropriate and well within the range of damages she could expect to be awarded, if the matter did proceed to a general assessment conference.
On 20 March 2024, I was advised both parties had agreed to settle the matter.
The insurer has proposed to resolve the claim for non-economic loss in the sum of $220,000. In regard to the claim for future economic loss, it has proposed an amount of $125,000 by way of a buffer. There are no deductions to be made from the agreed silent monies. This results in a net sum to the claimant of $345,000.
The calculation of the proposed settlement is as follows:
· non-economic loss $220,000
· past economic loss (Inc. Super) nil
· future economic loss $125,000
Total $ 345,000.
The claimant advised me she wishes to accept the proposed settlement. I consider the settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
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).
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 had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
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, considering 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 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 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 CONFERENCE ON 20 MARCH 2024
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 20 March 2024. The claimant participated in person and the insurer was represented by Aimee Walsh.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for non-economic loss in the sum of $225,000 and damages for future economic loss in the sum of $125,000. The net amount of settlement monies payable to the claimant is $345,000.
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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