Allianz Australia Insurance Limited v Godbold
[2023] NSWPIC 253
•29 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Godbold [2023] NSWPIC 253 |
| Claimant: | Harry Godbold |
| insurer: | Allianz Australia Insurance Limited |
| Member: | David Ford |
| DATE OF DECISION: | 29 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 29-year-old rider of a bicycle involved in a collision with the insured motor vehicle; insurer wholly admitted liability; sustained injuries to left hand being avulsion fracture of left little finger and comminuted fracture of left middle finger; no entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable; the proposed settlement is approved under section 6.23 (2)(b). |
| determinations made: | 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
On the 19th of August 2020, the claimant was riding his bicycle along Ramsey Street in Haberfield towards Wattle Street when the driver’s front door of the parked insured vehicle swung out and collided with him as he was cycling past. The claimant was thrown from his bicycle and was injured. He was transported by ambulance to Royal Prince Alfred hospital, where he was admitted.
At the hospital, he underwent X rays to his left hand and was diagnosed with a comminuted P1 fracture of the left ring finger and a FDP avulsion fracture. He underwent surgery resulting in an internal fixation with K wire. He was discharged from the hospital and commenced hand therapy, which was finally completed on the 9th of February 2021
He was born in 1994 and is presently 29 years of age. he is a bicycle mechanic and the manager of a bicycle retail business. He also has university degrees in Arts and Political Studies. He was absent from work for approximately 3 months after the accident, and during this time, had a gradual return to work. He is now working on a full-time basis. He advised me on occasions he does suffer from restrictions in the use of his left hand, however overall, he can carry out the day-to-day tasks required of him by his employer.
The insurer arranged for him to be examined on a medico legal basis by Dr Michael McGlynn, hand and plastic surgeon, and I refer to his report dated 21st of January 2022. Dr McGlynn has provided a comprehensive report. He carried out a physical examination of the claimant and viewed imaging reports. He confirmed the claimant suffered the following injuries.
1. Left little finger fracture avulsion of flexor digitorum profundus [ FTP] tendon insertion at base of distal phalanx.
2. Left middle comminuted fracture of proximal phalanx.
5. Doctor McGlynn stated no further treatment, including surgery is necessary. His condition is stable and unlikely to change substantially with or without further treatment. He noted the claimant has returned to his pre injury occupation and is working with no specific restrictions. Left hand grip strength is reduced, however, more likely than not, this will steadily improve with normal manual activities. He is not likely to experience permanent restriction or reduction of earning capacity in the future because of his injuries. He assessed the claimant as having a whole person impairment of 5%. Accordingly the claimant is not entitled to damages for non-economic loss,,,
6.The claimant is entitled to damages for past and future economic loss. The insurer has wholly admitted liability. The claimant advised me except that he wishes to accept the proposed settlement.
7. I consider the settlement is appropriate in all the circumstances of this case.
The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act). I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (the 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.
I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14 (D) empowers me to determine those proceedings.
Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
I am satisfied the claimant is aware of his right to have reasonable treatment expenses paid for the remainder of his life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter, the claimant may be transferred to ICARE who will be liable for ongoing reasonable treatment expenses.
The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, taking into account the nature and extent of the claim, the injuries, disabilities and impairments sustained by the claimant.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
Section 6.23 (2) (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) 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 , taking into the 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
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
TELECONFERENCE 26TH MAY 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 26th May 2023. The claimant participated in person and the insurer was represented by Aimee Walsh.
The proposed deed of release was lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for past economic including superannuation in the sum of $10,000 less statutory benefits of $5,623.03. Damages for future economic loss by wat of a buffer of $10,000. The nett amount of settlement monies payable to the claimant is $14,376.97.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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