Allianz Australia Insurance Limited v Johnson

[2023] NSWPIC 401

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Allianz Australia Insurance Limited v Johnson [2023] NSWPIC 401

CLAIMANT:

Maureen Johnson

INSURER:

Allianz

MEMBER:

Hugh Macken

DATE OF DECISION:

3 August 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 6.23; fractured right lower leg requiring surgery; vehicle caught fire; psychological trauma following accident; loss of mobility consequent on injuries sustained in the accident; subsequent fall with fracture to the neck of right femur; rehabilitation treatment; self-funded retiree; woman of great strength and resilience; assessment of non-economic loss; pre-existing difficulties exacerbated by the motor accident; significant effect on her capacity to engage in pre-accident day to day activities; Motor Accident Injuries Regulation 2017 section 7.37; Held – settlement approved.

DETERMINATIONS MADE:

CERTIFICATE

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 $200,000.

STATEMENT OF REASONS

INTRODUCTION

1. Maureen Johnson (the claimant) is an 83-year-old woman who was seriously injured in a motor vehicle accident on 8 January 2021 when the vehicle when she was driving was hit by the insured’s vehicle which had crossed on to the wrong side of the road and collided with her vehicle. Breach of duty of care has been admitted on the part of the insurer without any allegation of contributory negligence.

2. She suffered a fracture of her right lower leg which required surgical management at John Hunter Hospital. She then underwent a considerable period of rehabilitation at Foster Private Hospital.

3. The vehicle in which she was travelling had caught fire and, she additionally suffers ongoing psychological trauma following the accident.

4. Following the accident, in September 2022, and as a result of her loss of mobility consequent on the injury sustained in the accident, she suffered a fall at home which resulted in a fracture to the neck and her right femur. She again required significant rehabilitation treatment for this. She continues to receive treatment for this.

5. A figure of $200,000 is the proposed settlement figure in this matter. This is compensation for non-economic loss only.

6. I have no hesitation in approving settlement of this matter.

Reasons

1. The claimant had long since retired from her employment with Armaguard. She is a self-funded retiree living with her husband and has family support around her.

2. She has made a good recovery and is a woman of great strength and resilience who seemingly maintains a very positive outlook notwithstanding the injuries she suffered in the accident.

3. In my view, and noting the most inexact science associated with the assessment of non-economic loss, she would reasonably expect an assessment of non-economic loss to be between $150,000 and $200,000.

4. The proposed settlement figure is at the higher end of the scale and, in my view, more than adequately compensates her for the physical and psychological sequalae of the accident.

5. Whilst the claimant can be fairly described as a strong and resilient individual she is 83 years of age and did suffer from some pre-existing difficulties which, in all likelihood, have been somewhat exacerbated by the motor accident.

6. Notwithstanding any pre-existing injuries there is no doubt that the injuries she sustained in the accident have had, and continue to have, a significant effect on her capacity to engage in her pre-accident day to day activities.

7. For the above reasons I have no hesitation in approving the settlement proposed in the documents signed by the parties.

Legislation

1. In making my decision I have considered the following legislation and guidelines:

   ·        Motor Accident Injuries Act2017, s 6.23 (3), and

   ·        Motor Accident Injuries Regulation 2017, section 7.37.