Allianz Australia Insurance Limited v Godfrey
[2023] NSWPIC 386
•25 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Godfrey [2023] NSWPIC 386 |
| Claimant: | Reuben Godfrey |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Shana Radnan |
| DATE OF DECISION: | 25 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval $17,000; 35-year-old male; past and future economic only; nine weeks past losses; small buffer for future loss.; minimally displaced right ankle avulsion fracture now healed section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | CERTIFICATE Settlement approval 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 2 March 2021, Reuben William Godrey (the claimant) aged 34 years, was riding his motorcycle in the left kerbside lane at the corner of Military Road and Hampden Avenue at Cremorne and was injured when the insured’s vehicle attempting to make a turn left from the middle traffic lane and colliding with him.
The collision pinned him for a moment between the bike and the car and then he dropped the motorcycle falling onto roadway.
Police and ambulance were called.
The claimant sustained injury in the accident to the following areas of his body:
(a) right ankle fracture – minimally displaced transverse fracture of medial malleolus;
(b) right shin wound;
(c) right shoulder pain, and
(d) right knee pain.
The claimant was then conveyed by ambulance to Royal North Shore Hospital (document A12) where he was assessed by orthopaedic surgeon Dr Moopanar and was reviewed again on 16 April 2021.
A number of investigations were undertaken in emergency including X-rays of the right elbow, right knee and right ankle.
Ambulance records (document A4) confirmed the claimant’s initial injuries as pain to right elbow, hip and knee.
Police attended the scene and event report E78459114 was created (document A5).
The claimant was non weight bearing for six weeks after the motor vehicle accident and remained in the care of his general practitioner Dr Hams Ramlochun at Darlinghurst thereafter for review and management.
The claimant has made a claim against ALLIANZ (the insurer) of the at fault vehicle, for lump sum damages in an application for common law damages dated 14 October 2021 (document A13). By liability Notice (document A14) dated 2 February 2023, the insurer wholly admitted liability for the common law damages claim.
The insurer has accepted that the claimant had sustained non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) he is entitled to payment of reasonable treatment if required.
The insurer relied upon Dr Cachia and Dr Ramlochun (A6, A10 and A11) Certificates of Capacity dated 26 March 2021 and 2 June 2021 to assess impairment to earning capacity. I note that the rehabilitation records referred to left ankle, and when checked with hospital records and the claimant it was confirmed that the injury was to the right ankle.
The claimant had commenced employment with the State Transit Authority as a bus driver on 10 January 2021. His payslips (document A3) confirmed his net earnings of $ 1,682.42 in the fortnight ending 23 January 2021, $1,878.26 in the fortnight ending 6 February 2021 and $1,941 nett for the fortnight ending 20 February 2021.
He was certified fit to return to his pre-injury hours of eight hours five days per week on 19 April 2021 and return to work the next day.
By letter dated 23 May 2023 (document A15) the insurer advised the claimant that it had formed the view his injuries did not exceed 10% whole person impairment. The claimant did not challenge this finding and conceded most of the injuries sustained had resolved.
The claimant and the insurer have agreed to settle the claim for lump sum damages in the sum of $17,000. The initial application referred to a settlement offer made by the insurer on 23 May 2023 in the sum of $12,000. The insurer increased its offer to $17,000 after further negotiations between the parties during preliminary conference held with me on 12 July 2023. The basis of this latter offer was as follows:
(a) past economic loss for 9 weeks $9,000
(b) tax $1,754
(c) past superannuation $990.00
total past losses $11,654 rounded up to $12,000.
(d) future economic loss $5,000 a buffer
(e) it was confirmed that statutory weekly payments already paid were to be deducted from the settlement sum – $9,161.04 had been paid.
The insurer amended offer in letter dated 12 July 2023 and an amended deed was executed by the claimant on 16 July 2023. It is this amended offer that the parties seek approval.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the MAI Act.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (the Commission) was established on 1 March 2021 and the matter is subject to the jurisdiction of the Commission.
The accident took place on 2 March 2021. The claim is subject to the rules and regulations of the Commission.
THE RELEVANT LAW
Sections 6.23(2) and (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 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 12 July 2023
Initially the settlement was $12,000 for past economic losses only. The claimant did not qualify for non-economic loss as his injuries had resolved and whole person impairment did not exceed the statutory threshold.
During the teleconference, I questioned the claimant as to any ongoing problems and clarified the injuries including fracture to right ankle as the medical records appeared to be in error referencing the left ankle.
This was corrected by the claimant and he confirmed the injuries related to his right leg had resolved.
He was questioned as to the extent of his recovery and he confirmed he has returned to his pre-injury employment as a bus driver. He did not currently attend for any medical treatment.
During discussions between the parties, it became apparent that the settlement had not addressed future economic losses as the claimant had not provided any details of ongoing concerns. Upon discussions, the insurer considered a small buffer was appropriate for intermittent periods where the claimant was unable to work, albeit that on the evidence to date, his recovery was complete. The insurer sought instructions to increase the offer by $5,000 as a buffer inclusive of superannuation for the likely losses where the claimant required time off work due to a very occasional flare up of symptoms to his right ankle.
It was confirmed that the claimant had not taken any further time off work since the initial nine weeks immediately post motor vehicle accident.
The claimant accepted this additional sum and wished to proceed with the settlement. He advised he had no ongoing concerns and wished for the application to be approved as he considered it covered both past and future economic losses.
He provided an update to his injuries and their recovery and the parties agreed to amend the settlement documents to reflect the new settlement sum and would attend to uploading copies of amended offer and deed within seven days.
A review of the medical material contained in the application was confirmed and details of deductions relating to statutory payments made to date were confirmed in the sum of $9,161.04. The claimant confirmed he understood this sum would be deducted.
Amended terms of settlement dated 16 July 2023
The claimant by email confirmed he and the insurer had come to an agreement included the additional sum for future economic loss.
The parties confirmed that no further teleconference was required and I was requested to approve the amended terms of settlement.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle of 565 pages:
· Liability:
Application for Statutory Benefits dated 3 March 2021;
Application for Common Law Damages dated 14 October 2021;
liability notice dated 2 February 2023;
police report dated 23 March 2021, and
whole person impairment letter dated 23 May 2023.
· Treating medical records:
clinical records of Royal North Shore Hospital (document A12);
certificates of fitness (documents A6, A9,and A11), and
rehabilitation records Pinnacle Rehab (documents A7, A8 and A11).
· Economic loss material:
claimant’s payslips (document A3).
· Settlement documents:
Initial settlement agreement dated 23 May 2023 and executed on 6 June 2023, and further amended documents dated 16 July 2023.
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant confirmed during the first teleconference his injuries sustained has resolved with very occasional pain in his right ankle the site of the fracture.
He confirmed he no longer required treatment for any injuries sustained.
He confirmed he was working full-time as a bus driver and apart from the period after the accident where he was unable to weight bear, he had no further time off.
He remains with the same employer to date, the State Transit Authority.
Treatment had concluded. There were no ongoing treatment needs except when an occasional flare up required over the counter pain relief and this was a rare event.
The ongoing disabilities included very intermittent right ankle pain.
Pre-existing injuries and unrelated conditions
The claimant reported no prior conditions impacting upon him at the date of the motor vehicle accident.
INJURIES
The claimant attended Royal North Shore Hospital and investigations were undertaken to his right ankle, elbow and knee.
The medical records reviewed also confirm that the claimant was eager to return to work. The clinical records contained in the Pinnacle rehabilitation notes (documents A7, A8 and A10) confirm the nature of the injury, the extent of physiotherapy undertaken, the period he was non weight bearing and the return to pre-injury functioning.
Reports from treating physiotherapist confirmed the return to pre-injury activities of daily living took place in April 2021. The claimant returned to full duties on 20 April 2021.
Having reviewed the medical evidence contained in clinical records, and noting the lack of treatment and reporting of ongoing symptoms, I am satisfied that the claimant’s injuries would not exceed the statutory threshold of 10% whole person impairment and that non-economic loss would not have been available to the claimant.
I accept that the claimant is mildly symptomatic from time to time as it relates to occasional right ankle pain. There are no ongoing attendances with medical practitioners or physiotherapist for any accident-related complaints. Dr Moopanar, orthopaedic specialist confirmed his right ankle injury has healed. The claimant has not attended upon his general practitioner or specialist for any accident-related complaints since June 2021.
There are no other reported injuries or disabilities at the present time and the claimant reports his injuries have resolved completely.
ECONOMIC LOSS
Past economic loss
The claimant was unfit to work for nine weeks. He then returned to his pre-injury role on 20 April 2021.
His past economic losses were calculated and confirmed in paragraph 16. above.
The losses claimed are supported by the payslips provided and the additional information provided by the claimant during the first preliminary teleconference as to the time off work taken and confirmation by the claimant of no further time off to date.
Future economic loss
The claimant advised he continued to work and remains in full-time duties as a bus driver. He confirmed he had not taken time off for any accident-related reasons since his return to work on 20 April 2021. He would have a very occasional symptom of right ankle pain but due to his role being sedentary he found little impact on his earning capacity. He has been able to return to pre-injury sporting activities as well.
After review of the most likely future circumstances but for the accident, the parties agreed a small allowance should be made for the occasional day off where symptoms flared up and the claimant unable to work on such limited occasions. This was likely to result in future economic losses.
A buffer of $5,000 inclusive of future superannuation losses was agreed for the possible periods the claimant required time off in the future, noting that it was unlikely due to the acknowledged resolution of his symptoms.
The claimant is currently aged 35 and has a further 32 years of working life to retirement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past and future economic losses accord with the evidence provided by the claimant and the insurer in this matter and are within the range of likely potential damages assessments for the claim were the matter to be assessed by a Member of the Personal Injury Commission, taking into account the nature and extent of the injuries initially sustained, the resolution of the injuries and the reported return to pre-injury activities both recreational and at work, confirmed by the claimant.
The claimant was working as a bus driver the time of the accident and has returned to his pre-injury employment. The impact of the injuries sustained in the subject accident have healed and ongoing symptoms are minimal. The claimant has no ongoing treatment needs and in majority he has recovered fully from the injuries sustained. The only ongoing symptom reported is very occasional right ankle pain.
The past economic losses were supported by medical certificates and payslips provided. The claimant received statutory benefits. Future losses by way of a buffer are supported where there is no distinct ongoing weekly loss. I am satisfied that the past and future losses accord with the claimant most likely circumstances but for the accident.
The claimant is aware that from his settlement the insurer will deduct the already paid statutory benefits in the sum of $9,161.04 and that he will receive the balance in sum of $7,838.96.
In assessing future economic loss, I had regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher (1999) 197 CLR 138, the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in his earning capacity and, if so, whether that loss or diminution will result in economic loss. The basis of the settlement accord with the most likely circumstances but for the accident.
Further, it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine, as per Penrith City Council v Parks [2004] NSWCA 201. I agree that this is an appropriate matter for the award of a small buffer as the claimant’s impairment to future earning capacity is unlikely to be significant.
I advised the claimant if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, he should refer the matter to the insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
CONCLUSION
I am satisfied the proposed settlement of $17,000 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, the injuries, disabilities, impairments and losses sustained by the claimant.
I am satisfied the claimant was aware he could seek legal advice but chose not to avail himself of 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 from the proceeds a sum of $9,161.04 will be deducted as prepaid statutory benefits.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of the claimant’s claim for damages.
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, and
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
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