Allianz Australia Insurance Limited v Iatrou-Kosterman
[2022] NSWPIC 621
•8 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Iatrou-Kosterman [2022] NSWPIC 621 |
| Claimant: | Thibault Iatrou-Kosterman |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Terence Stern |
| DATE OF DECISION: | 8 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Damages claim; settlement approval under section 6.23 of the Motor Accident Injuries Act 2017; car vs pushbike; driver did not see pushbike and clipped the rear of the bike; fractured scaphoid; short time in hospital; full recovery; past economic loss only; Held - settlement of $4,114.73 approved as just, fair and reasonable, and within the range of likely outcomes. |
| determinations made: | 1. The proposed settlement is appropriate and complies with clause 7.04.2 of the Guidelines 2. I approve the proposed settlement of $4,114.73. |
BACKGROUND AND THE ACCIDENT
The Claimant who was born in May 2004 was injured in a motor vehicle accident on 31 August 2018 while he was riding a push bike.
The Claimant was cycling across a zebra crossing when a motor vehicle clipped the back wheel of his bike (the driver had not seen him allegedly due to sun in his eyes).
The Claimant sustained a graze to his left knee and landed heavily on his right wrist. He was subsequently diagnosed with a fracture of his right scaphoid bone.
The Claimant was discharged from hospital on 31 August 2018 to the care of his general practitioner Dr Susan Reid.
The Insurer has offered to pay the Claimant an amount of $4,114.73 in full and final settlement of the damages claim.
Preliminary Conference
I held a Preliminary Conference on 27 September 2022. Participating were the Claimant, unrepresented and for the Insurer, Amie Walsh.
I recorded [4] in the Case Review that the Claimant had told the Insurer that he had made a full recovery.
There was no independent medico-legal report supporting the Insurer’s application for approval and given the possibility of late developments, I did not consider it reasonable to go any further without an independent expert opinion.
The medical evidence
Subsequent to the Preliminary Conference and on 7 October 2022, the Claimant was assessed at the request of the Insurer and in accordance with my request by Dr Graham Hall, Occupational Health Physician.
10. Dr Hall’s diagnosis [page 4] was a healed right scaphoid fracture without sequelae, that the Claimant had made a full recovery from the injuries caused by the accident and there was no treatment current or proposed, no diminution in work capacity, and no ongoing incapacity.
The accepted offer
11. The Claimant has accepted an offer, subject to approval, of $4,114.73 made up as follows:
Past Economic Loss
Full Loss
- $180.05 for 11 weeks from 31/08/2018-19/11/2018
- $180.05 for 3 weeks from 24/12/2018-13/01/2019
Partial Loss
- Difference between $180.05 per week and the earnings reflected in Table 2 of the Insurer’s Submission.
12. No amount has been allowed for future economic loss. The Claimant has no ongoing symptoms and had according to himself returned to work and study with no concerns.
The legislation and legal principles
13. In making my decision I have considered the following legislation and Guidelines:
(a) the Personal Injury Commission Act 2020;
(b) the Personal Injury Commission Regulation 2020;
(c) the MAI Act, and
(d) the Guidelines.
14. Section 6.23 of the MAI Act provides:
“6.23 Restrictions on settlement of claim for damages
(1) A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle is greater than 10%.
(2) A claim for damages cannot be settled unless –
(a) the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b) the proposed settlement is approved by the Commission.
(3) The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
15. Clause 7.37 of the Guidelines states: “Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act;
(b) the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim were the matter to be assessed by the Commission, and 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;
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
16. I am satisfied that all these requirements have been met.
Determination
17. I am satisfied that the Claimant understands the binding nature and effect of the proposed settlement and that he will be precluded from making a further claim for damages arising out of the motor accident but is entitled to ongoing treatment and care needs. I am satisfied he knew he was entitled to legal representation.
18. The proposed settlement is appropriate and complies with clause 7.04.2 of the Guidelines in that it is “just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a member of the PIC, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”
19. Notwithstanding the trivial nature of the settlement, the fact is that it is the extent of the Claimant’s loss. The Claimant wants me to approve the settlement and there is no reason notwithstanding the amount that it should not be approved. He is recovering the full amount of his loss.
20. Accordingly, I approve the proposed settlement of $4,114.73.
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