Allianz Australia Insurance Limited v Davison
[2023] NSWPIC 269
•5 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Davison [2023] NSWPIC 269 |
| Claimant: | Andrew Davison |
| insurer: | Allianz Australia Insurance Limited |
Member: | Shana Radnan |
| DATE OF DECISION: | 5 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 6.23; settlement approval; $32,000; pedestrian 60% contributory negligence; 58-year-old male; left hip labral tear, whole person impairment 3%; past and future economic losses only; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
The claimant was involved in an accident on 7 January 2020. He was a pedestrian who stepped from the kerb, the insured sounded the horn which startled him causing him to fall into the side of the insured’s vehicle.
Ambulance was not required and there was no need for hospitalisation. The claimant attended upon his general practitioner at Kingscliff doctors a few weeks later.
The claimant sustained injury in the motor vehicle accident. He sustained a suspected labral tear in his left hip and worsening depression against a background of pre-existing anxiety.
At the time of the accident, he was working as an Uber driver taking a break from his trade as a construction electrician. He is now aged 58 years.
A claim for common law damages was lodged by the claimant on 21 January 2022.
Allianz (the insurer) admitted liability with an allegation of contributory negligence at 75% on the part of the claimant.
The claimant was assessed on 5 May 2022 by Nicholas Burke who opined whole person impairment of 3% for physical injuries. Dr Vickery assessed psychological injuries on 24 October 2022 and found there were no injuries. The insurer by letter of
6 December 2022 was unable to concede entitlement to non-economic loss.Liability for Statutory Benefits was determined on 1 September 2021 and was admitted with 75% contributory negligence. Liability for common law was determined on
16 February 2022 and was admitted with 75% contributory negligence.The insurer made an amended offer of settlement on 30 March 2023 reducing the contributory negligence to 60% and the claimant accepted the offer on 1 June 2023.
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $32,000 for past and future economic losses only after a deduction of 60% for the claimant’s negligence.
Before deduction for contributory negligence past economic losses amounted to $2,900 and future economic losses in the sum of $ 75,500 representing an ongoing loss of $215 per week. The sum total of $78,400 was rounded up to $79,000.
There were no damages for non-economic loss as whole person impairment did not exceed the statutory threshold of 10% whole person impairment.
Because the claimant is not represented by a lawyer, his 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 (the 2020 Act).
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14D empowers me to determine those proceedings.
Because of the date of the accident cl 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
THE RELEVANT LAW
Sections 6.23(2) and (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) I note the repeal of s 6.23(1) of the Act; the timing is no longer an issue to be taken into consideration;
(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 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 the proposed settlement and is willing to accept the proposed settlement.
A preliminary conference on 9 May 2023
I held a preliminary conference on 9 May 2023 with the claimant and a representative of the insurer, Ms Walsh.
An overview of the history of the matter was provided on this occasion with an explanation to the claimant as to what I required to ascertain that the claimant understood the nature and effect of the proposed settlement.
I asked the claimant questions as to his ongoing symptoms and considered that the claimant should be given a further opportunity to seek medical advice from his general practitioner and specialist as to the likelihood of any ongoing medical problems impacting on his future earning capacity.
The claimant was advised should he wish to retain legal representation he was able to consider this option in the interim. The finality of the nature of a settlement was discussed and a further opportunity for the claimant to double check if there were ongoing issues that needed to be addressed with the insurer.
Having an extensive discussion with the parties in relation to liability, the insurer was requested to seek instructions on their initial assessment of 75% contributory negligence.
A discussion also took place as to any ongoing impact on his earning capacity. The claimant confirmed he has capacity to work and there is the occasional flare up of hip symptoms. The aches and pains from his left hip down to his foot requires the use of deep heat, physio from time to time and he takes on jobs as he feels accords with his headspace. If the right job comes along he can do it, it just depends on how he feels at the time.
The matter was adjourned to enable further investigations to be undertaken by the parties.
Preliminary conference held on 1 June 2023
The claimant was present as well as Ms Walsh and Mr Entwistle for the insurer.
The claimant confirmed that whilst he had been given an opportunity to address any ongoing concerns, he had reviewed his position and as the insurer had increased their offer as well as reducing the amount for contributory negligence from 75% to 60% he was happy to have the matter resolved as soon as possible. He confirmed he had no other issues and understood the nature and effect of the settlement. He requested that I proceed to approve the settlement stating, “it was three years since the accident and he wished for all this to be over and to get on with his life”.
I clarified the nature of the settlement and the finality of the proceedings, should the application be approved. The claimant confirmed he understood the nature of the settlement and was aware that the settlement sum was for past and future economic loss only as any permanent impairment from his injuries did not entitle him to damages for pain and suffering.
Noting s 4.11 of the MAI Act provides that no damages may be awarded for
non-economic loss in respect of an injury unless the degree of permanent impairment is greater than 10%. The report of Dr Burke qualified by the insurer, opined whole person impairment at 3% for his left hip injury.I went through the information as to his injuries and the medical information before me and agree that the injuries sustained do not qualify the claimant for this head of damage. His psychological injuries were pre-existing.
The preliminary conference concluded with me advising I would make my decision and reduce it to writing.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in a bundle of documents of some 228 pages annexed to the application:
(a) Liability and quantum:
(i)A4 Application for Personal Injury Benefits dated 29 June 2020;
(ii)A5 Application for Common Law Damages dated 31 August 2022;
(iii)A6 Factual Investigation Report – Lee Kelly Investigation 9 July 2021;
(iv)A7 email no police action 29 July 2021;
(v)A5 Statutory Benefits Claim Form, and
(vi)A9 post 26 weeks liability decision dated 1 September 2021.
(b) The insurer relied upon the following medical records uploaded to the Commission’s portal:
(i)A8 Kingscliff Medical Records;
(ii)A2 Certificate of fitness dated 11 June 2021;
(iii)A3 imaging left hip and shoulder dated 5 February 2020;
(iv)A15 furth clinical records;
(v)A16 report Dr Nicholas Burke Occupational Physician dated 5 May 2022, and
(vi)A17 report Dr Graham Vickery Psychiatrist dated 14 November 2022.
(c) Economic loss material:
(i)Uber payslips – various;
(ii)A13 response to particulars dated 25 February 2022, and
(iii)A14 further particulars and financial records 13 March 2022.
(d) Settlement documents:
(i)A19 Settlement offer 14 March 2023 and 26 April 2023;
(ii)A20 Deed of Release 1 June 2023, and
(iii)A21 signed agreement for release dated 1 June 2023.
REVIEW OF THE EVIDENCE
Liability
The claimant reported in his statutory benefits claim form that he was attempting to cross Kennedy Drive in Tweed Heads, when the insured driver appeared to come out of nowhere. He alleges the insured used their horn which startled the claimant, causing him to turn and fall, hitting the side of the insured vehicle.
In his statement to investigators, the claimant confirmed he was attempting to cross Kennedy Drive to return to his parked vehicle. He confirmed the weather was fine and visibility was good. He reports immediately before the accident he may have been talking to someone, and that even though he checked for traffic he did not see the vehicle. He reported that he remembers stepping away from the kerb, hearing a loud horn, turning to take cover and hitting the front left panel of the car.
The insured driver also provided a statement to investigators. He confirmed the weather was fine and visibility was good. The insured driver reports seeing the claimant walking towards the roadway on a grass verge while he was about 25m away. The driver covered his brake and reduced his speed. At about 5-10m from the accident site. The driver noticed the man not looking towards oncoming traffic and continuing to the roadway. The man looked left and stepped from the gutter, the driver swerved to avoid him, however was restricted in how far he could swerve as traffic was coming in the other direction. The driver reports the claimant stumbled forward onto the roadway colliding with the insured vehicle near his front wheel arch.
Investigators attempted to contact the investigating officer. They were informed that police did not attend the scene.
The grounds of contributory negligence were:
(a) failure to keep a proper lookout when entering a roadway;
(b) failure to heed the presence of oncoming vehicle;
(c) failed to take care of own safety, and
(d) reference to T and X Company Pty Ltd v Chivas [2014]NSWCA 235.
Medical
The claimant moved to his car and drove himself home after the accident. He consulted his general practitioner Dr Guertin on 28 January 2020. He referred to a minor car accident that was causing hip pain – he was referred for an injection and encouraged to continue physio. The imaging revealed a small labral tear and bursitis in the left hip. The claimant returned to Dr Guertin on 21 July 2020, for review of his depression for which he was on ongoing medication. He reported ceasing work as an Uber driver due to COVID-19 and had only just restarted. He expressed relationship stress, home sickness and increased alcohol use.
The claimant returned to Dr Guertin on 17 December 2020 after injuring his shoulder playing football – he reported he sustained a supraspinatus tear and had bursitis. He was referred for a guided injection. Then returned to Dr Guertin on 11 January 2021 for a mental health plan noting his ongoing low mood. He saw Dr Donaldson on
18 March 2021 for his ongoing shoulder pain and was encouraged to continue physiotherapy. He returned again and saw Dr Miller on 4 May 2021 for ongoing rotator cuff syndrome and depression. He was referred to Dr Graze for his shoulder and was encouraged to continue psychology and perhaps change medications for his depression.On 17 June 2021 the claimant saw Dr Donaldson regarding ongoing issues from the motor vehicle accident, linking his left hip and ongoing left shoulder issues to the accident. He reported increased anxiety as well. He was referred for psychology and physiotherapy. The claimant returned to Dr Donaldson on 13 August 2021 and noted ongoing psychology and physiotherapy was underway. He visited Dr Donaldson again on 2 February 2022 reporting he had ceased his antidepressant medication and was having ongoing depressive symptoms. He returned again on 9 March 2022 for a new mental health plan.
The claimant was examined by Dr Burke, occupation physician on 5 May 2022 for the insurer. He reported to Dr Burke that his last construction work ceased in the beginning of 2017, and after travelling had been Uber driving 3-4 days per week. He reported ongoing pain in the left hip and occasional symptoms in the right hip. He reported tingling affecting his left foot. He also indicated ongoing shoulder pain. Upon examination, Dr Burke found some restriction in the shoulder range of motion, and in the hip, though it was noted that a full squat with flexion above 90 degrees was demonstrated. Dr Burke opined that the shoulder injury was not related to the accident, noting the first mention of it in the general practitioner notes was in relation to a football injury. Dr Burke assessed the claimant as having a whole person impairment of 3%.
The claimant was examined by Dr Vickery on 24 October 2022. Dr Vickery provided a report dated 14 November 2022. The claimant reported to Dr Vickery that he was put back on his antidepressant due to difficulty sleeping, and that he had separated with his wife. He reported he is withdrawn socially. Dr Vickery opined that there was a clear history of depression pre-dating the accident. Dr Vickery opined there was no restriction in earning capacity and no psychological injury in relation to the subject accident. He noted the ongoing depressive disorder was pre-existing and due to personal stressors.
The medical records provided the claimant’s initial injuries as:
(a) injury to left shoulder - rotator cuff tear, bursitis, this was later determined to be related to pre-existing sport injury;
(b) labral tear left hip, and
(c) worsening depression later determined to be pre-existing.
I was able to ascertain the extent of injuries relevant to the claim as contained in the various records pertaining to the treatment of the claimant that he has the following ongoing issues:
(a) he has ongoing intermittent pain radiating down his left leg. He now reports that the hip pain “is not too bad”;
(b) the shoulder symptoms only appear when placed in certain positions, this was related to a previous sporting injury;
(c) he has returned to working in renovating his own home;
(d) he suffered pre-existing left and right hip pain related to degenerative changes and the accident exacerbated the left hip symptoms (Dr Guertin 28 January 2020);
(e) he suffered mixed anxiety and depression on a background of chronic pain since 2011 as noted by Dr Theodore on 4 December 2017;
(f) Dr Vickery opined there were no psychological injuries attributable to the accident;
(g) he is able to undertake general daily tasks, and
(h) there is minimal ongoing problems associated with his physical injuries sustained.
Economic loss
The claimant was working part-time as an Uber driver at the date of the accident. He had previously worked as an electrician on large projects. Due to COVID-19, he ceased work in construction in 2018 and had maintained his 3-4 day work as an Uber driver.
The past loss amounted to a period of four weeks off with a loss of $554.68 net per week. Then a further $7.60 weekly for a period of 101 weeks being the difference in his actual earnings and his pre-injury earning capacity.
As the claimant was self-employed there was no allowance for loss of superannuation. He had reported he stopped work as a construction electrician in 2018.
A buffer was allowed for future economic loss in the sum of $75,500. This was based upon a likely weekly reduction to his earning capacity estimated at approximately $215 net weekly.
The primary records revealed the claimant’s earning capacity as follows:
(a) Notice of Assessment 2018 financial year – gross earnings $109,563;
(b) Notice of Assessment 2017 financial year – gross earnings $146,363;
(c) Notice of Assessment 2016 financial year – gross earnings $99,028;
(d) 2020 gross earnings $46,738.66 less Uber commissions $11,328.28, and
(e) 2021 gross earnings $44,092.89 less commissions $10,352.80.
The claimant was in receipt of income protection prior to the accident post 2018.
Statement of the claimant
The claimant confirmed his ongoing treatment is intermittent physiotherapy. He is capable of his normal activities and there is no further treatment being undertaken specifically for accident related injuries.
He continues with his psychological treatment and this was pre-existing. The regime varies depending on his stressors and are unrelated to the accident.
NON-ECONOMIC LOSS
There is no award for non-economic loss as injuries were assessed at 3% whole person impairment for his left hip labral tear.
There is no rateable impairment for psychological injuries as Dr Vickery determined no psychological injuries were attributable to the accident.
I am satisfied that the information before me supports the position that the claimant is not entitled to this head of damage.
THE SETTLEMENT
The amount of damages agreed for economic losses both past and future is $32,000 after a 60% reduction for contributory negligence.
As the claimant took approximately four weeks off work, the parties agreed that past loss amounted to the sum of $2,900 before deduction for contributory negligence.
The insurer made an allowance for occasional time off work over the remaining nine years of the claimant’s working life. A buffer of $75,500 was conceded before deduction for contributory negligence.
The insurer also relied upon the opinion of Drs Burke and Vickery that there was no restrictions to the claimant’s work capacity in his role as an Uber driver.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) The settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is complaince with any of the requirements of the MAI Act or the MA Guideline.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:-
(i)sub-clause 7.389.1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount for past economic loss is $1,160 and the amount for future economic loss is $30,840;
(ii)sub clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The offer made excluded any Medicare reimbursement or other payments made on behalf of the claimant by the insurer. There are no deductions. The amount in hand to the claimant is $32,000. This was confirmed in the teleconference;
(iii)sub clause 7.389.3 requires the amount of any advanced payments made.
There have been no advanced payments in this matter apart from medical expenses and these do not form part of the settlement, and
(iv)sub clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received clinical and medical records effectively convering the period of injury and the relevant period to date.I note the medico-legal opinions and those of the claimant’s general practitioner and psychologist. I have also received a written statement of the claimant as well as oral information directly from the claimant.
(c) Clause 7.399 of the Guidelines, requires me to consider the following:
(i)sub-clause 7.399.2: Appropriateness – 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 account the nature and extent of the claim and injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the medical evidence produced in this matter, I am satified that the nature of the ongoing injuries have been identified and that the sum agreed and the deduction for contrbutory negligence is is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission, and
(ii)sub-clause 7.399.3: Understanding – the claimant understands the nature and effect of the proposed settlement is the finality of his claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconference that in the event he took the settlement, he could not seek any further damages for non-economic losses and economic losses. He was advised that the insurer would still provide ongoing medical treatment, if required and approved by the insurer.
The claimant was also made aware that the insurer would continue to meet any charge issued by Medicare and that the insurer has agreed to reimburse Health Insurance Commission separately.
I am satisfied that the claimant was aware of his rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
Determination
This settlement is approved.
The proposed settlement is approved under s 6.23(2)(b) of the MAI Act.
The proposed settlement complies with cl 7.392 to cl 7.411 of the Guidelines.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017;
· Personal Injury Commission Regulation 2020;
· Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020;
· the Guidelines, and
· Personal Injury Commission Rules 2021.
0
0
0