Allianz Australia Insurance Limited v Dizon
[2024] NSWPIC 561
•10 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Dizon [2024] NSWPIC 561 |
| CLAIMANT: | William Dizon |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 10 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval under section 6.23 in the sum of $271,467.21; 78-year-old male; compensation to relatives claim; past financial dependency $70,607.21; future financial dependency $65,702; past and future loss of services 10 hours weekly; vicissitudes 30%; other medical conditions impacting on life expectancy; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $271,467.21 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
William Dizon (the claimant) is the husband of the late Lilia Dizon who was killed in an accident which occurred on 11 November 2022 outside their home. As she entered a car driven by her long-time colleague, it unexpectedly went into reverse causing her foot to be trapped under the front wheel and her to fall striking her head. She passed away as a result of the fall.
Lilia was aged 69 years at the time and was still working as a process worker earning approximately $945 net weekly. She also was the primary carer for her husband, the claimant.
The claimant is now aged 78 years of age and suffers from a number of medical conditions such as chronic kidney disease, cardiac conditions, diabetes and prostate cancer.
Lilia remained employed and according to a letter of Tridon Australia Pty Limited her employer, in communication dated 14 arch 2024, confirmed it had a number of employees over retirement age working with them, with four non-executive staff over 70 years of age, with the oldest staff member 78 years old.
The claimant was retired at the time of her death and his main carer was his late wife Lilia. A compensation to relatives claim has been made with the parties reaching an amended agreement on 9 September 2024 that the claimant receive the sum of $271,467.21, increased from $237,667.
The amended settlement sum represented the following components:
· Past financial dependency: $669.58 for 95 weeks amounting to $70,607.21 inclusive of superannuation.
· Future financial dependency: $669.58 for a further two years plus superannuation losses in the sum of $65,702.
· Past loss of services: 10 hours weekly for 95 weeks at $35 per hour = $33,250.
· Future loss of services: 10 hours weekly for current life expectancy of 10 years = $141,050 less vicissitudes of 30% due to pre-existing medical conditions including terminal cancer currently treated with medication.
The application before me is for the approval of the settlement.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (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 Personal Injury Commission 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 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.
Preliminary conference on 11 March 2024
The conference was conducted via video-link. On this occasion the nature of the settlement was discussed. The claimant was assisted by his son John, when I questioned the claimant as to the nature of the settlement and his understanding of the terms of settlement.
I confirmed with the parties that I required additional information from them before I would be in a position to determine the current application.
Noting the age of the claimant, I considered it appropriate that the insurer obtain an occupational therapist report addressing the care needs of the claimant as he is currently aged 79 years old and his wife (now deceased) provided considerable assistance to him prior to her death.
The insurer agreed to obtain a report in this regard and a further preliminary conference was scheduled for 2 July 2024 and 6 August 2024 but rescheduled as the report had not arrived.
Due to the delay in receiving the required report, the further preliminary conference was rescheduled to a time after receipt of the report obtained from Dawn Piebenga. Her assessment took place on 6 May 2024 and the report dated 2 August 2024.
Preliminary conference on 11 September 2024
The insurer relied upon the information contained in the Activities of Daily living (ADL) Assessment of some 46 pages. The report was detailed in both the details of services provided to the claimant before and after the passing of Lilia.
Noting its contents the insurer increased its offer to reflect the period of past losses to the date of assessment and whilst Ms Piebenga opined 6.8 hours weekly for future care, it honoured the earlier losses calculated at future care of 10 hours weekly.
The sum agreed to increased from $237,667 to $271,467.21. The insurer confirmed that there were no amounts to be deducted from the settlement sum and the claimant was informed he would receive total settlement proceeds of $271,467.21.
The claimant was asked about his understanding of the settlement, his willingness to enter into the settlement and the knowledge that he could seek legal advice, if he wished to even at this stage.
The claimant confirmed his understanding of the terms of settlement with his son assisting in interpreting to Tagalog and the claimant responded in both Tagalog and English.
The parties were informed at the conclusion of the video-link conference that a determination would issue following the receipt of executed terms and deed of release. I received the additional material on 19 September 2024 which included executed terms of settlement.
The claimant and the insurer requested the settlement be approved and confirmed there was no additional material required.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle of 110 pages:
Liability:
(a)police report dated 2 April 2023;
(b)application for statutory benefits dated 8 March 2023;
(c)application for common law damages dated 27 February 2024;
(d)liability notice dated 22 April 2024;
(e)Deed of release dated 12 July 2024, and
(f)submissions of the insurer dated 24 July 2024.
Medical records:
(a) ADL report, and
(b) report Dawn Piebenga dated 4 August 2024.
Financial records:
(a)employers letter dated 18 April 2024.
Settlement documents:
(a)Deed of Release dated 11 September 2024.
Claim
The claimant’s application for compensation to relatives involved financial losses both past and future as well as loss of services provided by his late wife for the remainder of his life.
The claimant suffers from a number of unrelated health issues which is taken into consideration when ascertaining life expectancy.
The claimant reported to Ms Piebenga he has “multiple chronic conditions, including advanced prostrate cancer, diabetes mellitus, cardiac issues and renal impairment. His prostrate cancer has metastisised to his bones and he is currently on systemic medical therapy which includes chemotherapy and radiation. He has recently undergone cataract surgeries in both eyes and manages his osteoarthritis and recurrent urinary tract infections.”
His physical mobility is largely limited by bilateral osteoarthritis in both knees and hands. Although he has reported grief symptoms he has not accessed psychological support even though a referral to general practitioner Mental Health Plan was issued.
The claimant’s son John has taken over as full-time carer. He is in receipt of a carer’s pension.
Personal care activities have not been impacted by the loss of his wife, he reported he manages this by himself.
Ms Piebenga accepted that had Lilia not passed away the claimant would due to his health, aging and diagnosis of metastatic cancer engaged in services through Commonwealth Home Support Program (CHSP), a Home Care package (HCP) or Palliative Care Services through My Aged Care. He would most likely have accessed the mainstream health supports.
The report also specified equipment and home modifications required and this is separate to the settlement terms. (p8 of 46).
At pages 26 – 35 the activities were broken down into types of activities the extent of assistance performed and whether any changes took place after the passing of Lilia. Whilst care of grandchildren was referred to at “D” on page 35, this was not a component of the claimant’s claim.
I am satisfied the extent of services allowed for under the following categories of personal care and domestic tasks accords with the factual basis provided by both the claimant and his son John. There is no need for me to go into the intricate detail of each activity as listed in the report, suffice it to say that the allowed time for tasks did not exceed the 10 hours allowed by the insurer.
The insurer to its credit did not reduce the hours previously agreed to at 10 hours weekly even with the opinion of Ms Piebenga amounting to an average of 6.8 hours weekly.
Past financial dependency
Lilia’s weekly net earning capacity amounted to $669.58. The insurer has allowed 95 weeks since the date of the accident and superannuation on this sum in total of $70,6507.21.
The weekly sum accords with the pay slips of Lilia.
I am satisfied that the amount allowed accords with the records produced.
Future financial dependency
The claimant relied upon the employer’s letter that his wife would have remained working for a further few years but for the accident. I accept the evidence of Marcus Rome, the financial director at Tridon Australia, who provided a statement on 14 March 2024 that the company employed a number of staff who were over 70 years of age and that Lilia had given no indication to her employers or other staff as to when she intended to retire.
The parties have allowed a further two years loss from now noting the claimant’s failing health and but for the accident it considered it likely that Lilia would retire to care for the claimant.
Future financial dependency was allowed at $669.58 plus 11% superannuation amounting to $65,702.
Past loss of services
The insurer allowed 10 hours weekly at the rate of $35 per hour for 95 weeks amounting to $33,250.
The calculations are an accurate assessment of losses.
Future loss of services
The insurer allowed 10 hours weekly for the next 10 years with an increased deduction for vicissitudes from the usual 15% to 30% noting the claimant’s other medical conditions which includes prostrate cancer which has metastasised.
This was calculated as 10 hours x $35 x 413 = $101,908.
The calculated damages accords with the life expectancy table and increased deductible. I am satisfied that had the matter been assessed by a Member of the Commission that the increased deductions for vicissitudes of life would align with a just fair and reasonable range of likely potential damages.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of cl 7.37 of the Guidelines, in that it is:
“…just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”
Accordingly, the insurer recommended the proposed settlement figure of $271,467.21 be approved.
The claimant also confirmed his desire that the settlement be approved by me.
Review of the evidence
I am satisfied the claimant received financial assistance from the deceased as well as care reported in the information which supports this application. The information contained in the assessment of Dawn Piebenga assisted me in consideration of the claimant’s past and future care needs.
The medical information provided in the clinical notes of Drs Amor and Patel as well as the clinical records of Plumpton Medical Centre and Westmead Hospital accord with the medical histories provided by the claimant from time to time.
I am satisfied the claimant’s needs have been assessed appropriately and the estimate of losses accords with the facts.
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 Motor Accident Guidelines.
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 financial dependency amounted to $70,607.221. Future financial dependency $65,702. Past loss of services $10 hours weekly $33,250 and future loss of services $101,908 with increased vicissitudes due to pre-existing conditions of 30%;
(ii)sub-clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The insurer has not made any payments. The claimant will receive net proceeds of $271,467.21;
(iii)sub-clause 7.389.3 requires the amount of any advanced payments made be specified. There had not been any advanced payments made apart from known statutory benefits, and
(iv)sub-clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have reviewed the evidence relied uponas contained in the application which included medical records, care assessments, occupational therapist report and financial records. The report of Dr Piebanga dated 2 August 2024 provided significant details of care needs as well as clinical records for pre-existing conditions. The information produced by the insurer has given me a good indication of the loss of financial assistance and need for replacement care.
(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 evidence produced in this matter, I am satisfied that the amounts allowed for past and future financial dependency accords with the facts. I find the sum agreed upon 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 video preliminary conferences that in the event he took the settlement, he could not seek any further damages.
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.
CONCLUSION
I am satisfied the proposed settlement of $271,467.21 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of the claim and losses sustained by the claimant.
I am satisfied the claimant was aware he could seek legal advice and chose not to retain legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and his decision to accept it was of his own volition.
I am satisfied the claimant is aware that $0 will be deducted from the proceeds of settlement and that he will receive $271,467.21.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages in the sum of $271,467.21.
The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries 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;
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021, and
· Compensation to Relatives Act 1897.
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