Allianz Australia Insurance Limited v McEvoy
[2024] NSWPIC 239
•2 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v McEvoy [2024] NSWPIC 239 |
| CLAIMANT: | Margaret McEvoy |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 2 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; proposed settlement approval; elderly claimant knocked to the pavement when insured driver backed out of driveway; liability wholly admitted; insurer’s medicolegal assessed whole person impairment of 14%; entitled to damages for non-economic loss only; having regard to the age of the claimant and the impact the injuries have had to her quality of life and ongoing pain and suffering; proposed amount reasonable and within the range of likely potential damages; Held – settlement approved in the sum of $336,000 pursuant to section 6.23(2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE 1. Proposed settlement approved pursuant to s 6.23 of the Motor Accident Injuries Act 2017 in the sum of $180,000. |
STATEMENT OF REASONS
INTRODUCTION
The claimant Mrs Margaret McEvoy was involved in a motor vehicle crash on
17 October 2022. She sustained fracture injuries to her knee which has impacted upon her mobility.
Mrs McEvoy has made a claim against Allianz Australia Insurance Limited (insurer) the insurer of the at fault vehicle for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted that Mrs McEvoy is entitled to damages pursuant to the Motor Accident Injuries Act 2017 (the Act) for non-economic loss and that she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
Mrs McEvoy and the insurer have reached agreement as to the settlement of the claim for damages.
Because Mrs McEvoy is not represented by a lawyer, her settlement must be approved in accordance with the Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration.
Mrs McEvoy was 86 years old at the date of the crash. She is currently 87 years old with her 88th birthday in November this year. At the time of the accident, she had been retired for many years. It is agreed, she is not entitled to damages for economic loss.
THE RELEVANT LAW
Section 6.23(2) and (3) of the Act requires that the proposed settlement must be approved and, I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and/or the Motor Accident Guidelines (Guidelines).
Clause 7.37 of the Guidelines states I must be satisfied the proposed settlement is just, fair and reasonable. The proposed settlement must be within the likely potential damages assessment for the claim were the matter to be assessed by a Member of the Personal Injury Commission (Commission). The matters to be taken into account include the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by
Mrs McEvoy. I also must take into account any proposed reductions or deductions in the proposed settlement.
Mrs McEvoy also must understand the nature and effect of the proposed settlement and is willing to accept the amount.
DOCUMENTS CONSIDERED
I have considered the documents provided by the insurer including but not limited to submissions, claim form, police, factual, and ambulance report, correspondence between the claimant and insurer, two reports by Dr Andrew Leicester and a report by Dr Hamish Rae, clinical notes, imaging, and hospital records.
REVIEW OF THE EVIDENCE
Mrs McEvoy was a pedestrian on the footpath in Goulburn. As she crossed a driveway, the insured driver reversed out onto the roadway and collided with Mr McEvoy knocking her to the ground.
She was conveyed by ambulance to Goulburn Base Hospital where she was diagnosed with a right tibial fracture. She underwent surgery and remained in hospital for seven weeks undergoing rehabilitation until she was capable of weight bearing on her right leg.
She came under the care of Dr Rae in hospital. His report dated 7 December 2023 notes at the time of his report it had been 14 months since the accident. He notes she has underlying mild valgus and moderately severe patellofemoral arthritis.
He says she is experiencing difficulties with daily living, and she told me she could not understand why she now had to pay for taxies to take her to appointments and shopping. She also told me she was having trouble with her housework.
She clearly did not understand her entitlement to transportation and access to domestic assistance.
The insurer’s agent gave me an undertaking, along with the insurer’s rehabilitation officer and claims officer that a very clear and concise letter would be drafted and sent to
Mrs McEvoy advising her of her rights and to encourage her to access the treatment and care she needs which have been caused by accident.
Dr Rae discussed with Mrs McEvoy further surgery to remove screws. However, she has decided to wait and see, as she is concerned about having further surgery with the risk of complications considering her age.
If she decides in the future to undergo surgery on her knee, she must understand this is covered by the insurer and after five years, Lifetime Care and Support take over the treatment obligations.
Dr Leicester was asked by the insurer to examine Mrs McEvoy and assess WPI. His report dated 18 October 2023 reveals the same diagnosis as Dr Rae. The doctor agrees, although Mrs McEvoy had pre-existing arthritis, her accident-related injuries have caused her current functional impairment and agrees she will need assistance with her cleaning. Dr Leicester assessed her WPI as 14%.
SHOULD I APPROVE THE PROPOSED SETTLEMENT
The proposed settlement offered by the insurer for non-economic loss is $180,000.
The insurer has conceded considering Dr Leicester’s assessment that Mrs McEvoy has a greater than 10% WPI, she is entitled to damages for non-economic loss.
By virtue of s 4.11 of the Act the claimant is entitled to damages for non-economic loss and
s 4.13(1) of the Act prescribes a maximum that I may award for this head of damage. Section 1.2 of the Act relevantly defines non-economic loss to mean:
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of expectation of life, and
(d) disfigurement.
Having regard to Mrs McEvoy’s age, the proposed sum for non-economic loss is within the range of likely potential damages a member of the Commission would assess for non-economic loss.
I am satisfied Mrs McEvoy will be aware of her rights, once she receives the letter of advice from the insurer, to have her reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay treatment expenses for five years, thereafter the claim is transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses and care.
The insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge in addition to the settlement sum.
I am satisfied the proposed settlement is just, fair, and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments, and losses sustained by Mrs McEvoy.
I am satisfied the amount of $180,000 is fair and just amount and reflects the pain and suffering, loss of amenities of life, loss of expectation of Mrs McEvoy’s life and disfigurement.
I am satisfied Mrs McEvoy is aware she can seek legal advice but does not wish to do so.
I am satisfied Mrs McEvoy understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied Mrs McEvoy is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the Act I approve the settlement of Mrs McEvoy’s claim for damages in the sum of $336,000.
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