Allianz Australia Insurance Limited v Davies

[2023] NSWPIC 634

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Allianz Australia Insurance Limited v Davies [2023] NSWPIC 634

CLAIMANT:

Anthony Davies

INSURER:

Allianz Australia Insurance Limited

MEMBER:

David Ford

DATE OF DECISION:

28 November 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 46 year old motorist involved in a collision at an intersection controlled by traffic lights with insured vehicle; sustained an undisplaced sternum fracture; claimant had conservative management of the fracture; claimant is a self-employed bricklayer; unable to work for a closed period then, ultimately, returning to work on full duties; occasional difficulties with chest aches and pains at the end of a working day; insurer conceded claimant has sustained a non-threshold injury; liability admitted; no entitlement to non-economic loss; claim for past and future economic loss; 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

1. On 26 September 2020, Anthony Davies, (the claimant), was driving his motor vehicle in a northerly direction along the Hume Highway towards the intersection with Ingham Drive at Casula pursuant to a green traffic light signal, when the motor vehicle being driven by the insured driver, travelling in a southbound direction, failed to give way and made a right hand turn across the path of the claimant’s vehicle, where upon, a collision occurred.

2. As a consequence of the collision, the claimant sustained an undisplaced sternum fracture. He subsequently consulted his general practitioner on 11 October 2020, and it was recommended he have conservative management of the fracture.

3. He was born in 1977 and is presently 46 years of age. At the time of the accident, he was and still is, a self-employed bricklayer. He provided the insurer with a 12-month earnings summary which is set out in detail in the submissions lodged by the insurer. After the accident, he had a period when he was unable to work and then, returned to work on a trial basis. Eventually was able to work normal work hours by late November 2020. The insurer calculated his average net weekly earnings at the time to be $552.96. The insurer made statutory payments to the claimant totalling $3,399.30.

4. The insurer did not arrange for a medico legal examination of the claimant. At the preliminary conference, I questioned him in relation to his post-accident work capacity and he advised he is capable of carrying out all of the duties required of him as a self-employed bricklayer, but on occasions, he does struggle with chest aches and pains at the end of a working day.

5. In respect of past economic loss, the insurer proposed a sum of $5,000 less statutory payments made to date. The insurer had proposed a sum of $5,000 by way of a buffer for future economic loss, however, after hearing from the claimant, I advised the parties I did not consider this amount to be reasonable in the circumstances. The insurer then requested an indication from me as to an amount which I would consider to be a reasonable sum to compensate the claimant for loss of future earning capacity. I indicated to both parties an appropriate amount in my view, would be the sum of $15,000.

6. At the request of the insurer, I allowed a further short period during the preliminary conference for both parties to enter further settlement negotiations and after a short period
   I recommenced the preliminary conference and was advised the parties had agreed to resolve the matter for the sum of $20,000 less statutory benefits This results in a net settlement to the claimant in the sum of $16,600.70.

7. The claimant advised me he 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.

8. 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

1. 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.

2. 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.

3. 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.

4. The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.

5. 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

1. 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.

2. I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.

3. I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.

4. I am satisfied the claimant is willing to accept the proposed settlement.

5. 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

1. 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.

2. 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 24 NOVEMBER 2023

1. The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 24 November 2023. The claimant participated in person and the insurer was represented by Aimee Walsh.

SHOULD I APPROVE THE SETTLEMENT

1. I am satisfied it is appropriate in this matter to assess damages for past economic loss in the sum of $5,000. Damages for future economic loss in the sum of $15,000. The net amount of settlement monies payable to the claimant is $16,600.70.

2. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.