Allianz Australia Insurance Limited v Daries
[2024] NSWPIC 558
•9 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Daries [2024] NSWPIC 558 |
| CLAIMANT: | Che Daries |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 9 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval under section 6.23; shoulder injury requiring surgery; labral tear; articular cartilage injury; biceps injury evulsion; surgical procedure; excellent recovery; post-accident promotions; pay rises; past economic loss; assumptions as to most likely future circumstances; future economic loss; no entitlement to non-economic loss; Held – settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE SETTLEMENT APPROVAL Issued under section 6.23 of the Motor Accident Injuries Act 2017 The amount of the claim for damages is approved in the total amount of $45,000. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 41-year-old man who was injured in a motor vehicle accident which occurred on 7 August 2018. He was struck by the insured driver and thrown from his motorcycle and suffered a right shoulder dislocation. This included a large bony bankart lesion, extensive labral tear, Hills-Sachs lesion. The insurer has admitted duty of care on the part of its insured with no allegation of contributory negligence. The proposed settlement figure of $45,000 is made up of the calculation for past economic loss in the sum of $17,000 and an allowance for future economic loss of $28,000. There is no allowance in the settlement figure for compensation for non-economic loss as the material does not support any prospect of the claimant establishing that he has sustained a greater than 10% whole person impairment consequent on the motor vehicle accident.
Documents considered
The material included some 310 pages of documentation. These included extensive physiotherapy notes, reports of the surgery to the shoulder which the claimant underwent on3 March 2023, GP clinical notes and reports from his treating surgeon as well as a medico-legal report from Dr Gothelf dated 14 June 2024. The material was consistent in the specific diagnoses and prognosis for the claimant’s injury.
Injury sustained
The claimant, somewhat fortuitously, sustained only a dislocation to his right shoulder after being flung from his motorcycle after the insured driver crossed into his lane and collided with him. He landed on the right shoulder and sustained a dislocation. I say fortunately because he did not suffer any more injuries. The circumstances of the accident was such that it could have been catastrophic but it was not.
After treatment on the day of the injury he was off work for a few days and thereafter attended physiotherapy to assist in the rehabilitation of his right shoulder and arm.
He continued with this rehabilitation and, in 2022, attended Dr S. Tan who, after viewing updated scans, diagnosed a labral tear, articular cartilage injury, biceps injury avulsion and upper subscapular tear. Conservative treatment did not assist in this and accordingly he underwent surgery at the hands of Dr Tan on 3 March 2023 being an arthroscopic labral repair and biceps tenodesis.
Since this time the observations of Dr Tan are that he has made an excellent recovery, his strength has improved, his range of motion has significantly improved and, as Dr Tan stated on 5 September 2023:
“he has made a great recovery.”
At the assessment conference the claimant confirmed that his right shoulder is performing very well with no setback. He has almost full function although he is still somewhat cautious with it. Whilst it was a serious injury and did require surgical attention the claimant has made a good recovery.
It ought to be said that the claimant is a remarkably stoic individual who has shown a very positive attitude notwithstanding this injury. He has applied himself diligently to rehabilitation and recovery procedures and taken steps to minimise its impact on his working and day to day activities.
Reasons
The documents provided confirm that the calculation for past economic loss of $17,000 is based on the provision of material provided by the claimant which outlines all time he has taken off work both in the immediate post-accident period, for physiotherapy and associated treatment following surgical procedures he had underwent. This includes the period in which he was working in a reduced capacity and reduced hours between August 2018 and April 2019 and makes an allowance for the loss of employer superannuation contributions. At the conference the claimant confirmed that these calculations accurately reflect the past wage loss.
It should also be noted that the claimant has since been promoted to the position of Construction Manager with him employer, MAWD Pty Ltd, which is the company he has worked for since prior to the accident and is involved with the installation of aluminium windows and doors. He has similarly received pay rises in addition to the promotions he has had at work.
In respect to the future economic loss the sum of $28,000, as a buffer for any possible future economic loss is, in my view, appropriate in the circumstances of the claimant. It may be that the claimant will make a very good recovery and suffer no further impairment. That said, as the insurer has stated, whilst the claimant has returned to full time work and had a good recovery from his injury, there may be time off needed into the future due to flareups or deterioration. In my view a buffer of $28,000 more than adequately covers any possible contingency or need for further treatment which the claimant may require in the future.
Noting that claimant has only one single body part injured, that being the right upper extremity, and further noting that the claimant has made a very good recovery with almost complete range of motion and only some minor ongoing pain, weakness or discomfort to the shoulder it follows that I cannot see any prospect in which the claimant would be able to establish that he has suffered a whole person impairment of greater than 10%. I note the report of Dr Gothelf dated 14 June 2024, consequent on the measured active range of motion identifies a whole person impairment of 2%. I am satisfied that the only matters for which the claimant is to be compensated for are limited to past and future economic loss.
Conclusion
In light of the above and noting that the claimant only has an entitlement to economic loss I have no hesitation in approving the proposed settlement figure of $45,000. I note there have been no payments made by the insurer to be deducted from this figure. I note both parties are emphatic that they wish the matter to be resolved on this basis and I can see absolutely no reason why such approval ought not to be allowed.
LEGISLATION
In making this decision I have considered the following legislation and guidelines:
· Motor Injuries Act 2017, and
· Motor Accident Injuries Regulation 2017.
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