Allianz Australia Insurance Limited v McEvoy

[2022] NSWPIC 60

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Allianz Australia Insurance Limited v McEvoy [2022] NSWPIC 60

CLAIMANT:

Mary McEvoy

INSURER:

Allianz Australia Insurance Limited

MEMBER:

David Ford

DATE OF DECISION:

31 January 2022

CATCHWORDS:

MOTOR ACCIDENTS – Settlement approval; 98-year-old female; pedestrian struck by a motor vehicle; sustained a severe injury to her left leg which resulted in the claimant undergoing a below knee amputation of the left leg due to an open fracture of the distal tibia with the excessive soft tissue loss; no allegation of contributory negligence; agreed the claimant’s injuries exceeded the 10% threshold and further conceded her entitlement to non-economic loss; no claim for past or future economic loss; Held- her proposed settlement is just, fair, and reasonable; settlement approved.  

DETERMINATIONS MADE:

1.        The proposed settlement is approved under section 6.23 (2)(b) of the Motor Accidents Injuries Act 2017 (the MAI Act).

2.        The proposed settlement complies with clause 7.38 of the Motor Accident Guidelines 2017 (the Guidelines).

Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017

1.    This proposed settlement is approved.

2. 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 Guidelines 2017.

Background

Determinations Made

1.     The proposed settlement is approved under section 6.23 (2)(b) of the Motor Accidents Injuries Act 2017 (the MAI Act).

2.     The proposed settlement complies with clause 7.38 of the Motor Accident Guidelines 2017 (the Guidelines).

Introduction

3.     On 1 October 2020, in the driveway of premises at Umina Beach, the claimant was a pedestrian and was struck by a motor vehicle which caused her to be thrown to the ground whereupon the said motor vehicle reversed over her legs.

4.     As a consequence of the accident, the claimant was admitted to Royal North Shore Hospital on the same day where she underwent a below knee amputation of the left leg due to an open fracture of the distal tibia with excessive soft tissue loss.

5.     Following her discharge from the hospital, the claimant was re-located to an aged care facility as it was determined she could no longer reside on her own.

6.     The insurer having regard to the severity of the claimant’s injuries conceded the claimant was entitled to damages for non-economic loss.

7.     The claimant was born in 1923 and is presently 98 years of age. The claimant has only served damages for non-economic loss and has not served damages for either past or future economic loss. The claimant is not represented by a lawyer and accordingly, her settlement must be approved in accordance with the MAI Act.

8.     I have decided to approve the proposed settlement as submitted in this application.

Jurisdiction of the Personal Injury Commission

9. The Personal Injury Commission (the Commission) was established on 1 March 2021 and the dispute resolution service was abolished by clause 3 of part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.

10. I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14 (D) empowers me to determine those proceedings.

11.    Because the date of the accident clause 14 D (3) (b) provides the MAI Act and the Guidelines continue to apply.

The relevant law

12.    Section 6.23 (1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.

13.    Section 6.23 (2) (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.

14.    Clause 7.38 of the Guidelines states I must be satisfied as to the following:

(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 for the claim were the matter to be assessed by a claims assessor, taking into the 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 proposed settlement and was willing to accept the proposed settlement. 

Teleconference 20 January 2022

15.    The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a first teleconference on 20 January 2022.

16.    Mr Desmond McEvoy, son of the claimant, participated in person and the insurer was represented by Hannah Williams.

17.    I advised Ms Williams the proposed Agreement for Release and Indemnity was not included in the documents lodged in the portal. I then arranged for Ms Williams to lodged the proposed Agreement for Release and Indemnity on the portal and also for the said Agreement to be emailed to Mr Desmond McEvoy.

18.    On 24 January 2022, I uploaded a copy of the Agreement for Release and Indemnity from the portal.

19.    I have read the Agreement for Release and Indemnity and I approve the terms and conditions dated therein and I confirm the claimant will be paid the sum of $250,000 by the insurer and there are no deductions to be made from the said sum. 

Should I approve the settlement

20.    I am satisfied it is appropriate in this matter to assess the damages for non-economic loss in the sum of $250,000 and I consider this amount to be acceptable and within the range likely to be awarded.

21.    I am satisfied the claimant is aware of her right to have her reasonable treatment expenses and nursing home expenses paid for the remainder of her life.

22.    Ms Williams advised the insurer will not deduct and pay monies to Medicare from the settlement sum. If any charge is raised, the insurer will pay the charge as a treatment expense in addition to the settlement sum. 

CONCLUSION

1. I find the timing requirements of section 6.23 (1) of the MAI Act satisfied where it is conceded the claimant is entitled to damages for non-economic loss having been determined she is in excess of the 10% threshold.

2. 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 and impairments sustained by Ms McEvoy.

3. I am satisfied Ms McEvoy is aware she can seek legal advice but does not wish to do so.

4. I am satisfied Ms McEvoy understands the binding nature of the settlement and she will be precluded from making a further claim for damages arising out of the accident.

5. I am satisfied Ms McEvoy is willing to accept the proposed settlement.

6. Accordingly, pursuant to section 6.23 (2)(b) of the MAI Act, I approve the settlement of Ms McEvoy’s claim for damages.

David Ford

Member (Motor Accidents Division)

Personal Injury Commission