Allianz Australia Insurance Limited v Quick
[2024] NSWPIC 94
•28 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Quick [2024] NSWPIC 94 |
| CLAIMANT: | Allan Quick |
| INSURER: | Allianz |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 28 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval in the sum of $7,000; 54-year-old male; past economic only; no entitlement to non-economic loss; 0% whole person impairment; fractured left 6th rib now healed; closed period economic loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement approval 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 7.37 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 31 May 2022, Allan Quick (the claimant) was a passenger in a bus where the driver drove away suddenly before he was able to take a seat and as a consequence he struck a pole injuring himself.
The claimant attended his general practitioner on 31 May 2022 reporting chest pain when coughing. Images were ordered and revealed a fracture to the left 3rd rib.
He was provided analgesia and conservative management of the fracture was prescribed.
On 9 February 2023 a common law claim form was lodged with the insurer and the insurer admitted liability on 8 March 2023.
The insurer has accepted that the claimant had sustained non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) he is entitled to payment of reasonable treatment if required.
The claimant had sustained injuries in a previous bus injury which occurred on 16 February 2022 and this incident was also subject to a separate claim which has also settled.
As there is no assessable impairment for a fractured rib, the claimant’s injuries do not exceed the statutory threshold of 10% whole person impairment and he does not qualify for non- economic loss.
The injuries have healed and the only claim being made is that relating to past economic loss.
The claimant sought losses for the period 31 May 2022 to 31 August 2022. A period of 12 weeks where he was unable to work. Losses for this period were calculated as $430 his nett weekly pay for 12 weeks amounting to $5,160.
For the period of 30 September 2022 to 14 November 2022 an allowance of 18 hours weekly loss was made based on payslip evidencing the lost hours where he was unable to work due to ongoing problems with suitable work. Losses were calculated as his hourly rate of $12.0656 and amounted to $217.18 weekly. The sum of $1,303.08 was agreed for this period.
Between 14 November 2022 to 12 December 2022 an allowance of eight hours weekly was agreed representing a weekly loss of $96.53. The loss was calculated at a further $386.12.
In total past losses amounted to $6,849.20. Superannuation on this sum at 11% of the total amounted to a further $753.41. In addition to this sum the tax loss was estimated at $786.
The parties agreed that actual loss amounted to $8,338.61 and this sum was rounded up to $8,500.
As the claimant has returned to full time work and not taken any further time off, there is no claim for future economic loss.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the MAI Act and relevant Guidelines.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021.
I am a Member of the Motor Accidents Division of the Commission authorised to determine the application.
Because of the date of the accident cl 14(D)(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) apply to this matter.
THE RELEVANT LAW
Under ss 6.23(2) and (3) of the MAI Act before the Commission may approve the settlement of a claim for damages, it must be satisfied that:
“The proposed settlement complies with any of the requirements of the MAI Act or the Motor Accident Guidelines.”
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
“(a) Timeframe requirements – now obsolete
(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 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.”
Preliminary conference on 15 February 2024
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 15 February 2023 with the assistance of an Auslan interpreter. The claimant participated in person and the insurer was represented by Amie Walsh.
The claimant was asked to confirm his injuries and he advised that he sustained a fracture to his left 3rd rib and that it has now healed without complication.
He confirmed he did not take any further medication and there was no ongoing treatment. He considered he had fully recovered from his injuries.
The insurer confirmed that to date statutory payments for this claim amounted to $2,425.25 and this sum was to be deducted from the proceeds of settlement.
The insurer’s initial offer was based upon a calculation of the statutory weekly payments. It was then reviewed against payslips provided and the insurer agreed at this time to amend the settlement offer made to reflect a weekly loss of $430 nett rather than the pre-accident weekly earning which was $324.23 nett for statutory weekly payments.
The settlement was then amended to reflect the increased weekly sum of $430 nett.
The claimant confirmed he understood that whilst settlement sum was $8,500 the net amount he would receive is $6,074.75.
The claimant was asked if he would like additional time to seek legal advice and he responded with “I don’t want any lawyers involved, I am happy to proceed with the settlement”.
I was informed that the claimant did not wish to seek and further investigations medical or legal.
I asked if the updated settlement as proposed was acceptable to the claimant and he confirmed “I am happy with the rate that reflects my weekly pay of $430 thank you.”
I asked the claimant if he understood the nature of the amended settlement terms and its finality and if it was being undertaken of his own free will. He responded to me:
“Yes I understand the settlement, its finality and no one has pressure me to settle.”
I asked if he understood that that from the settlement a sum of $2,425.25 would be deducted as the insurer had paid this sum as statutory weekly payments to date. I was informed:
“Yes I know”.
The insurer was also asked if any further information or statement was to be made and
Ms Walsh said “No”.The preliminary conference concluded with me advising the parties that I would upon the receipt of the updated settlement offer, executed acceptance submissions determine the matter.
Directions were issued on this occasion that the parties were to upload the fresh settlement documents.
The insurer uploaded the amended settlement documents including executed deed of release on 26 February 2024.
Amended terms of settlement dated 26 February 2024
The parties have reached agreement to settle the claim in the sum of $8,500 for past economic loss only.
The parties requested that I approve the amended terms of settlement.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle which included the following:
· Liability:
application for statutory benefits dated 4 March 2022;
application for common law damages dated 7 February 2023;
liability notice dated 7 March 2023, and
incident report 4 March 2022.
· Treating medical records:
Kildare Rd Medical Centre – Dr Michniewicz clinical records;
Norwest Central Physiotherapy clinical records;
Certificates of Fitness – various, and
Pinnacle Rehabilitation records.
· Investigations
chest x-ray.
· Economic loss material:
employer return to work certification;
payslips – various – document A7;
further and better particulars;
Australian Taxation Office Notices of Assessment 2018 to 2022, and
claimant’s email no claim for future economic loss – document A17.
· Settlement documents:
amended settlement agreement dated 15 February 2024, and
executed deed of agreement dated 26 February 2024.
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant confirmed during the first preliminary conference he sustained a left rib fracture which rendered him off work for a period and once the injuries resolved he return to work on graduated hours. He confirmed he was back at work full-time by December 2022.
When asked if he has any further time off in 2023, he stated “No I have not had any further time off.”
He mentioned he now works four days only each week. I queried whether this was in any way related to the injury sustained on the incident on 31 May 2022 and the claimant stated “no it is a lifestyle choice I have made and nothing to do with the bus accident”.
The claimant confirmed that there was no ongoing treatment envisaged. He advised me that he had not required treatment for quite some time.
INJURIES
The clinical records produced in the matter confirm that the claimant initially sustained the following injuries:
· fractures at 3rd left rib.
The clinical records of Kildare Medical centre confirms that the injury had healed by April 2023 and that there has been no ongoing treatment. There are no ongoing concerns and he was reported not having difficulty with domestic household chores or work-related tasks. He applies the manual handling techniques given to him by Pinnacle rehabilitation and is careful when lifting objects.
The clinical notes of exercise physiologists confirmed that the claimant was discharged from treatment on 26 December 2022.
Having reviewed the medical evidence, I am satisfied that the claimant’s injuries would not exceed the statutory threshold of 10% whole person impairment as his fractured rib has healed. I am satisfied that the claimant had no entitlement to damages for non-economic loss.
ECONOMIC LOSS
Past economic loss
The claimant was working at the time as a picker packer with Afford Australia Foundation for Disability. He was unable to work for a period of approximately eight months and returned to work on a gradual basis when his level of fitness accorded with the work tasks he was able to undertake.
I am satisfied that the losses have been calculated based on leave taken and the pay scale he was receiving at the time.
The calculation of loss accords with the financial records provided, the payslips and the tax assessments.
The past losses were based upon the claimant’s actual loss of $430 nett weekly or a pro-rata rate.
The amount is identified as weekly losses amounting to $6,849.20, superannuation of $753.41 and tax $786.
The total of $8,338.61 was rounded up to $8,500.
Future economic loss
The claimant has returned to full-time work and has not made a claim for future economic loss. I am satisfied on the evidence before me that this accords with the most likely circumstances but for the accident. Full recovery and no ongoing impact to his earning capacity.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past economic loss accord with the evidence provided by the claimant and the insurer in this matter and are just fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a Member of the Commission, taking into account the nature and extent of the injuries and the full recovery made by the claimant.
The injuries sustained in the subject accident have healed and any ongoing impact is now minimal. The claimant has no ongoing treatment needs. This is supported by the clinical records before me of Dr Michniewicz.
The past economic losses were supported by medical certificates for the period immediately post-accident and the claimant received statutory benefits at the time. A further allowance was made for a period until full return to work.
The claimant is aware that from his settlement the insurer will deduct the already paid statutory benefits in the sum of $2,425.25 and that he will receive the balance in sum of $6,074.75.
I consider the agreed buffer in the sum of $8,500 is just fair and reasonable and within the range of likely damages had the matter been assessed by a Member of the Commission.
CONCLUSION
I am satisfied the proposed settlement of $8,500 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant.
I am satisfied the claimant was aware he could seek legal advice but chose not to avail himself of legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant was willing to accept the proposed settlement and his decision to accept it was of his own volition.
I am satisfied the claimant is aware that from the proceeds a sum of $2,425.25 will be deducted as prepaid statutory benefits.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the amount of $8,500.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
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