Allianz Australia Insurance Limited v Gibson

[2023] NSWPIC 249

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Allianz Australia Insurance Limited v Gibson [2023] NSWPIC 249

Claimant:

Theodore Gibson

insurer:

Allianz Australia Insurance Limited

Member:

Hugh Macken

DATE OF DECISION:

22 May 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; $7,000; future economic loss only; left hand fracture; fractures to two fingers; claimant was travelling between the parked cars and the first lane of traffic on his motorcycle and the insured driver opened the driver’s side door which struck the claimant’s left hand; that the only ongoing impact of the injury he sustained is occasional swelling of the left fifth finger (pinky); minimally displaced avulsion fracture of the left middle finger and middle flank; no permanent impairment; little potential impact on any future earning capacity or future economic loss; contributory negligence; section 6.23; Held – the proposed settlement is just, fair and reasonable; settlement approved.

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 $7,000

STATEMENT OF REASONS

INTRODUCTION

1. The claimant was injured on 10 February 2020 on Pittwater Road at Dee Why when he was travelling between the parked cars and the first lane of traffic on his motorcycle and the insured driver opened the driver’s side door which struck the claimant’s left hand. The claimant was left with fractures to two fingers of his left hand and noted that the only ongoing impact of the injury he sustained is occasional swelling of the left fifth finger (pinky) particularly when he is pursuing his interest in weightlifting and cross-fit training.

2. The medical material supports no permanent impairment consequent on his injury finger and, accordingly, none or very little potential impact on any future earning capacity.

3. At the assessment conference the claimant agreed that he has very few ongoing problems with it and stated he would like to settle the claim for the proposed offer of $7,000.

Reasons

1. The proposed settlement figure represents simply a buffer for any future economic loss of $10,000 and notes a contributory negligence finding of 30% giving rise to a figure of $7,000.

2. I agree with the insurer that there is a very strong likelihood that at an assessment conference contributory negligence would be found. Whilst I do not consider it would be 50% and I do consider that it is more likely than not that any reduction on damages would be reduced due to the claimant riding a motorcycle between two rows of cars, in proximity to parked cars and thereby putting himself in a position where an inattentive driver could open her door, as happened in this case, and struck the claimant.

3. The secondary issue is whether or not a figure of $10,000 as a buffer for future economic loss is appropriate in the circumstances. The medical material notes include x-ray results which show a minimally displaced avulsion fracture of the left middle finger and middle flank. He underwent hand therapy sessions over a 6 month period and all treatment has now ceased. The report of Dr Keller dated 10/02/2023 states the finger injury has healed without restriction of motion.

4. Noting these matters and noting the expressed intention of the claimant that the matter be resolved for the proposed settlement figure of $7,000, I approve the settlement.

5. The claimant is unlikely to suffer any ongoing adverse impact consequent on the damage to his left hand. He is a man of strength and stoicism who confirms he is not greatly troubled by it. In these circumstances the proposed settlement figure, modest though it could considered to be, ought to be approved.

Legislation

1. 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