Allianz Australia Insurance Limited v Feore
[2023] NSWPIC 154
•4 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Feore [2023] NSWPIC 154 |
| Claimant: | Peter Feore |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Hugh Macken |
| DATE OF DECISION: | 4 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval issued under section 6.23; contributory negligence; failure to keep a proper lookout; pre-existing conditions; non-economic loss; voluminous supporting evidence; factual issues somewhat clouded by slightly differing statements and investigations; the claimant was injured in a motor vehicle accident when crossing the road and struck by the insured’s vehicle; claimant a 90-year-old man; reduction 30%; Held – the amount of the claim for damages is approved in the total amount of $160,000. |
| determinations made: | 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 $160,000. |
STATEMENT OF REASONS
INTRODUCTION
The claimant was injured in a motor vehicle accident which occurred on 18 July 2019. He was crossing the road when he was struck by the insured’s vehicle which was making a right hand turn. The insurer has admitted breach of duty of care and originally allege contributory negligence of 80%. This was then reduced to 50% and ultimately, in an attempt to resolve the matter, was reduced to 30%.
The materials comprise of over 2,800 pages worth of materials primarily being medical material. The factual issues are somewhat clouded by slightly differing statements and investigations.
Documents considered
I have considered all the documents together with the offer of settlement, Deed of Release and the schedule of damages.
Reasons
As near as can be ascertained as the insured driver turned right the claimant was crossing the road and was struck by the insured driver at the intersection.
What is clear is that the insured driver had been waiting at the top of the T-intersection to turn right for a considerable period of time. As the claimant commenced to cross the road he ought to have been in a position to see the insured driver but did not do so.
I agree with the insurer that there was a likelihood that the claimant did not keep a proper lookout thereby put himself in a position of danger whilst crossing the road.
This allegation of contributory negligence is one which could be refuted. Indeed, the claimant had some difficulty in agreeing that there ought to be a finding of contributory negligence. After lengthy discussions, the claimant agreed that there was a distinct possibility of contributory negligence and that some allowance ought to be made for this.
The total figure agreed for non-economic loss is in fact some $233,500 which, after a deduction of 30%, gives a precise figure of $160,000.
The material certainly to me suggests that there is likelihood of a finding of contributory negligence. It is not certain, as these things never are, but it is a real likelihood.
10. The material also suggests to me that the allowance made by the insurer for non-economic loss is higher than would likely be awarded in this matter. Additionally, should contributory negligence be found on the part of the claimant, there is some prospect that such a finding would be greater than 30%.
11. The claimant has had the assistance of his daughter, Carol Feore, who was also in attendance at the teleconference. After consideration of all the material and lengthy discussions, the claimant requested that I approve the settlement and did ultimately agree that there could well be a finding of contributory negligence and this ought to be factored into the overall settlement of this matter.
12. For the reasons I have outlined above I have no hesitation in approving the settlement of $160,000 noting that this is a very high assessment of non-economic loss for a 90-year-old man and also noting a consent finding of contributory negligence of 30%.
Legislation
13. In making my decision I have considered the following legislation and guidelines:
· Motor Accident Injuries Act2017, Section 6.23 (3)
· Motor Accident Injuries Regulation 2017, Section 7.37
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