Allianz Australia Insurance Limited v Jenkins
[2023] NSWPIC 129
•8 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Jenkins [2023] NSWPIC 129 |
| Claimant: | Andrew Jenkins |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Elyse White |
| DATE OF DECISION: | 8 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages claim; settlement approval under section 6.23; claimant self-represented; claimant was riding his motor bike when the insured driver turned across his path; left ankle fracture requiring surgery; initial six weeks off work returning to work with reduced capacity until resuming full time within 8-9 months; settlement offer included a $20,000 buffer for past loss of earnings and a buffer of $20,000 for 'flare ups' for future loss of earnings; Held - settlement approved, parties reminded of claimant's entitlement under sections 3.24 and 3.26. |
| determinations made: | CERTIFICATE OF DETERMINATION 1. Settlement approved in the sum of $40,000. 2. The insurer is to receive a credit for $130.49 for statutory benefits paid. |
STATEMENT OF REASONS
INTRODUCTION
Mr Andrew Jenkins, the claimant, was involved in a motor vehicle accident on 3 May 2019 (“the accident”). At the time, he was riding his motor bike along Blaxland Road, Ryde, approaching the Tucker Street intersection.
The insured driver was travelling towards the claimant in the opposite direction and made a right hand turn across the path of Mr Jenkins causing his bike to collide with the rear left of the insured’s vehicle.
He was conveyed by ambulance to Royal North Shore Hospital where surgery was performed on his left fractured ankle. He was discharged the day after the accident on crutches.
The insurer, Allianz Australia Insurance Limited has wholly admitted liability for the accident.
COMPLAINT BY THE CLAIMANT
The claimant has made a number of complaints concerning the conduct of Associate Professor Michael Shatwell, during a consultation and his subsequent assessment. The consultation took place on 23 May 2022 which was arranged by the insurer and involved an assessment of Mr Jenkins’ whole person impairment and histories, Mr Jenkins says he provided to the professor.
These concerns have been the subject of a complaint to the Health Complaints Commission ("HCC"). Mr Jenkins has provided to the Personal Injury Commission (“the Commission”) a copy of the compliant and various emails between an officer of the insurer and himself,
The Commission is an independent body. Any complaints regarding the conduct of any doctor can only be received by the HCC. The Commission has no power to accept or comment on Mr Jenkins complaints.
At a preliminary conference, I advised Mr Jenkins he was entitled to make an application to the Commission to have his medical dispute about whole person impairment, independently assessed. Although he was offered assistance by the insurer’s representative to lodge an application for a medical dispute, he has declined to do so. He has confirmed he has no further documents or material to support his claim for assessment and approval. He is willing for the decision to proceed with the material lodged on the portal. I confirm have read all this material.
LEGISTATIVE FRAMEWORK/SETTLEMENT APPROVAL
Common law damages are awarded on a once and for all basis. An injured person cannot usually make a claim for further damages once a claim has been settled.
10.Section 6.23 of the MAI Act says:
“(1) repealed
(2) A claim for damages cannot be settled unless-
(a) the claimant is represented …… 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 of the Motor Accident Guidelines”.
11.Section 6.23(2)(b) is an important safety net for persons settling a damages claim without legal advice.
12.Clause 7.37 of the Motor Accident Guidelines, says that in considering the settlement the Commission must consider whether:
“(a) repealed
(b) 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 (member of the Commission), 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”.
Claims for damages
13.The MAI Act limits the types of damages that can be awarded to any injured person and the amounts of those damages. The available heads of damage are set out below.
Damages for non-economic loss
14.Damages are available for non-economic if the person has a whole person impairment (WPI) of greater than 10%. Whole person impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines which are largely based on the American Medical Association’s guides to The Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
15.The insurer obtained a report from a medico-legal expert that the claimant had a WPI of 0% and therefore did not include any award for non-economic loss in its offer.
Damages for Economic losses
16.Section 4.5 of the MAI Act limits the types of damages that can be awarded for economic losses:-
(a) Damages for past or future economic loss of earnings or the deprivation of earning capacity, and
(b) Damages for costs relating to accommodation or travel (not being the cost of treatment and care) of a kind prescribed by the regulations, and
(c) Damages for the cost of the financial management of damages that are awarded, and
(d) Damages by way of reimbursement for income tax paid or payable on statutory benefits arising from the injury that are required to be repaid on an award of damages to which this Part applies.
17.The insurer’s offer did not include the cost of financial management which is usually awarded to persons who have limited capacity and cannot make financial decisions on their own. This is no such case.
18.The insurer has made allowances for past and future loss of earnings including superannuation. There is re-imbursement to the insurer for statutory benefits paid.
19.No allowance has been made for accommodation or travel.
REVIEW OF THE EVIDENCE
20.The claimant’s application for personal benefits stated that he was employed as an accountant with Meriton.
21.The ambulance report notes on arrival at the scene, Mr Jenkins had mobilised to the side of the road after the accident. There were minor scratches to his helmet but there was no history of a head injury. His Glasgow Coma Score of 15 out of 15 which is normal. His left ankle was painful and the report notes the level of pain on the outer side was rated 8 out of 10.
22.X-rays at the hospital revealed an oblique fracture through the lateral malleolus extending toward the level of the talar dome consistent with a Weber B type fracture. Mr Jenkins underwent open reduction and internal fixation of the fibular fracture with a plate and screws on the following day under general anaesthetic.
23.Mr Jenkins was followed up by orthopaedic surgeon Dr Papadimitriou. The plate and screws were removed in July 2021 under a general anaesthesia as a day patient.
24.Foot Right Podiatry began treating Mr Jenkins around 22 November 2021. At that time, Mr Jenkins complained of lateral ankle pain. He noticed he was unable to walk as much as he did prior to the injury. His gait had changed which created a limp. After a thorough examination, orthoses were fitted on 23 December 2021.
25.He was further reviewed on 20 October 2022. Mr Jenkins reported he was able to walk further with the orthoses, and the pain had reduced. However, a further examination of his feet revealed a variation between the right and injured left foot and ankle area.
26.After the accident, Mr Jenkins reported an aggravation of a previous wrist injury. He fractured his left scaphoid many years ago which resulted in an internal fixation. Mr Jenkins’ general practitioner, Dr David Carpenter, referred him to the Sydney Hand Surgery Associates. Dr Anthony Beard consulted with the claimant when he told the doctor he injured his wrist in the accident. The doctor suggested a number of options but felt, because the symptoms were relatively mild, it may be reasonable to continue managing him non-operatively.
27.Assoc Prof Shatwell reviewed all the medical records provided to him. He says he explained to Mr Jenkins the purposes of an independent medico-legal examination. He took a history from Mr Jenkins and commented on the medical records. He asked Mr Jenkins about his present situation. He records Mr Jenkins told him he had reduced walking distances and that he experienced intermittent sharp pain around the anterolateral aspect of the ankle on occasions which requires the use of Panadol. The Assoc Prof mentioned continuing problems with his left wrist.
28.The professor examined Mr Jenkins and reported on all activities, movements circulation, posture, contours and scarring. At paragraph 11 of the professor’s report, he does acknowledge that Mr Jenkins has a minor deformity and musculoskeletal abnormalities which predispose him to develop callosities beneath the metatarsal heads on both of his feet. He opines this condition was pre-existing and not related to the accident. He did not consider that Mr Jenkins has any incapacity relating to the accident.
29.The insurer asked the professor to assess whole person impairment. The assessment reads “Using the SIRA Guidelines which are underpinned by the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition) Mr Jenkins’ whole person impairment relating to his ankle and hind foot ranges of movement is a 0% Whole Person Impairment using Tables 42 and 43 on page 3/78 of the AMA4 Guides”. He did not consider the scarring over the outer side of the left ankle represented a WPI rating.
CONSIDERATION OF THE SETTLEMENT
The offer of settlement
30.The insurer’s offer of settlement is $40,000 made up of:
a) Past economic loss - $20,000
b) Future economic loss - $20,000
31.The insurer indicated it would deduct $130.49 in wage payments of which $27 is income tax which is included in the deductable amount.
32.The past loss of earnings is calculated based on 6 weeks off work, thereafter Mr Jenkins returned to work with reduced capacity of 4 hours per day. He resumed to full earning capacity by the end of 2019.
33.Future loss of earnings has been allowed by the insurer for ‘flare ups’ by way of a buffer of $20,000.
The requirements of the legislation
34.When considering the provisions of s 6.23 of the MAI Act and cl 7.37 of the Guidelines along with the rules and practice directions of the Commission in determining whether to approve Mr Jenkins’ settlement, I must consider:
a) Appropriateness – whether the amount of the settlement is just, fair and reasonable, and
b) Understanding- whether Mr Jenkins understands the settlement and its terms and the effect of the settlement in ending his claim for damages.
35.I am satisfied that Mr Jenkins understands that he is entitled to reasonable and necessary, accident-related treatment and care for the reminder of his life. The settlement of this damages claim does not affect that claim and Mr Jenkins can continue to ask and receive assistance and treatment from the insurer.
36.Mr Jenkins accepts that the settlement of his damages claim is binding upon him and that he cannot make a further claim for damages in the future. He understands while he will receive treatment and care if he asks for it, the settlement of this claim will end as will the insurer’s liability to pay him weekly benefits for any loss of earnings.
37.Mr Jenkins confirmed he did not wish to engage legal representation and in fact, indicated during the telephone conference, he had approached a solicitor at some stage and decided not to engage him/her.
38.I am satisfied that the allowance for past and future economic loss is fair and reasonable. Both heads of damage have been calculated as a lump sum which is an appropriate approach where earning capacity has been reduced but its extent is difficult to assess, see Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13. Mr Jenkins has returned to full time work and his duties at work do not appear to be impacted by any incapacity. However, the insurer as made an allowance for periods of incapacity in the past and possible incapacity in the future.
39.I am therefore satisfied that the total amount for damages offered to Mr Jenkins by the insurer is appropriate and within the range that I would assess.
CONCLUSION
40.I am therefore satisfied that the proposed settlement figure of $40,000 is an appropriate one and that it complies with the requirements of cl 7.37 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 the Commission, taking into account the nature and extent of the claim and injuries, disabilities, impairments and losses sustained, and taking into account any proposed reductions or deductions in the proposed settlement”.
41.Accordingly, pursuant to s 6.23 of the MAI Act the proposed settlement of Mr Jenkins’ claim for damages is approved.
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