Allianz Australia Insurance Limited v Giuriato
[2023] NSWPIC 240
•22 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Giuriato [2023] NSWPIC 240 |
| Claimant: | Nives Giuriato |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Hugh Macken |
| DATE OF DECISION: | 22 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); claimant was injured whilst getting up from her seat to alight from a bus; fracture to her thoracic spine; lacerations to head and back; contributory negligence; non-economic loss; parties desire to facilitate a quick settlement to avoid uncertainty and matter proceeding to an assessment; Held – proposed settlement is just, fair and reasonable; settlement approved for $160,000.00. |
| 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 whilst getting up from her seat to alight from a bus on 4 June 2021. She sustained a fracture to her thoracic spine and was taken to hospital. Additionally, she suffered some lacerations to her head and back. She had a prolonged period of rehabilitation in hospital prior to being discharged. She continues to suffer significant and ongoing back pain which adversely affects all aspects of her day to day activities.
The figure of $160,000 is, according to the insurer’s submissions, an assessment of non-economic loss of $200,000 and a finding of contributory negligence on the basis that the claimant allegedly failed to remain seated until the bus came to a stationary position and the bus doors opened, of 20%.
I have no hesitation in approving the settlement of this matter.
Reasons
There are two significant uncertainties which need to be considered in this matter.
Firstly, the issue of contributory negligence is a live issue. Whilst the claimant has a different version of events the documents do support that the claimant was standing whilst the bus was moving. It may be that the bus had stopped and then moved further forward but it does not alter the fact that the claimant had got up from her seat prior to the bus being stationary at the bus stop. It may be that the insurer may fail in its finding of contributory negligence but there is a very significant risk that a finding of contributory negligence could be made and such a finding may well be significantly in excess of 20% deduction proposed by the insurer in the settlement of this matter.
Secondly, and noting the age and injuries sustained by the claimant, there is some reasonable likelihood that the damages assessed in respect to the awarding of compensation for non-economic loss could reasonably be between $120,000 and $250,000. Indeed, were the damages to be so assessed, and some small amount deducted for contributory negligence, the claimant would be far worse off than the proposed settlement. It must be said that any such determination would be uncertain and may well result in the claimant being awarded less than the offer which is being made by the insurer.
Finally, both the claimant and her daughter have indicated that they wish this matter resolved in the short term. They do not wish to take the matter to an assessment with the risks that such an assessment would involve. I have been asked, emphatically, by both parties to approve the settlement.
For the above reasons I have no hesitation in approving the settlement proposed in the documents signed by the parties.
Legislation
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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