Allianz Australia Insurance Limited v Nakhle
[2022] NSWPIC 522
•21 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Nakhle [2022] NSWPIC 522 |
| Claimant: | Gabriel Nakhle |
| insurer: | Allianz Australia Insurance Limited |
| Member: | David Ford |
| DATE OF DECISION: | 21 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 46-year old male; rider of motorcycle involved in a collision with a motor vehicle driven by the insured driver; sustained fractured scaphoid bone in left wrist, bruising and abrasions to left shoulder, road rash and swelling to right knee, swelling and bruising to right foot and ankle; no allegation of contributory negligence; insurer conceded claimant entitled to damages for past and future economic loss but no entitlement to damages for non-economic loss; Held –proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b) of the Motor Accidents Injuries Act 2017. |
| determinations made: | 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
introduction
On 15 June 2018 Gabriel Nakhle (the claimant) was riding his motorcycle along New South Head Road at Rose Bay at the intersection with Caledonian Road when he was struck by the motor vehicle being driven by the insured driver, causing him to fall to the roadway and sustaining injuries.
The claimant was taken by ambulance to the Prince of Wales Hospital where he was admitted and discharged after several hours. He returned home, where he took bed rest and subsequently consulted his general practitioner.
The claimant sustained the following injuries:
(a) Fracture scaphoid bone in left wrist.
(b) Contusion and bruising to left shoulder.
(c) Road rash and swelling to right knee.
(d) Swelling and bruising to right foot and ankle.
The insurer conceded the claimant is entitled to damages however, the claimant does not have a claim for non-economic loss as the injuries sustained by him in the subject accident do not surpass the threshold to entitle him to such damages.
The claimant was born in March 1976 and is presently 46 years of age. The claimant has only claimed damages for past and future economic loss.
The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act) I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (the Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.
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 cl 14 (D) empowers me to determine those proceedings.
Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
RELEVANT LAW
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%.
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.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement certifies the timing requirements in s 6.23 (1) of the MAI 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 2 SEPTEMBER 2022
The insurer lodged an application for approval of the settlement and was referred to me for consideration. I held a teleconference on 2 September 2022. The claimant participated in person and the insurer was represented by Aimee Walsh.
I refer to my first preliminary conference report dated 7 September 2022 and confirmed during the teleconference, after further discussions with the claimant and the insurer, the claimant advised if the insurer was prepared to increase their offer in respect of past economic loss to a sum of $171,483.91, then the claimant was content to resolve his claim for that sum and also for the amount of $155,000 proposed in respect of future economic loss.
Subsequently Ms Walsh advised me the insurer was prepared to increase their offer of settlement to the amount proposed by the claimant and now, the matter is proposed to be resolved for a sum of $172,000 in respect of past economic loss less deductions and $155,000 in respect of future economic loss.
I refer to the medico-legal report of Dr Murray Hyde Page dated 28 August 2020. Dr Hyde Page is an orthopaedic surgeon and was requested by the insurer to carry out an examination of the claimant which took place on 21 August 2020. Dr Hyde Page has provided a comprehensive report and I refer to the opinion expressed by him on page 9 of his report which is as follows:
“I have concluded that he can return to his pre-accident role as a self-employed software developer and do 90% of his work as I have already noted. 10% of his work, however, may involve heavy bending and lifting and putting in computers and hardware. He may need some assistance with this physical part of his job.”
At the initial teleconference on 2 September 2020, the claimant stated he now has arranged for other persons to carry out this physical work on his behalf.
The claimant was of the opinion the amount allowed for future economic loss was appropriate and as stated above, he did have concerns about the amount allowed for past economic loss. He did accept the opinion as expressed by Dr Hyde Page in his report regarding the prognosis for his future work capacity.
I am satisfied the claimant is aware of his right to have reasonable treatment expenses paid for the remainder of his life. Whilst the insurer is only liable to pay for statutory benefits including treatment expenses for five years, thereafter the claimant may be transferred to icare who will be liable for ongoing reasonable treatment expenses.
The insurer will not deduct and pay monies to Medicare from the settlement sum. If any charge is raised, the insure will pay the charge as a treatment expense in addition to the settlement sum.
CONCLUSION
I find the timing requirements of s 6.23(1) of the MAI Act satisfied where it is now two years since the date of the accident. I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment 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 the claimant.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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