Allianz Australia Insurance Limited v Quick
[2024] NSWPIC 93
•28 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Quick [2024] NSWPIC 93 |
| 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 16 February 2022, Allan Quick (the claimant) was a passenger in a bus where the driver broke harshly causing him to fall forward onto the seat in front of him injuring himself.
The claimant attended his general practitioner on 18 February 2022 reporting chest pain when moving. Images were ordered when his symptoms did not improve and revealed an acute fracture to the left 6th rib.
He was provided analgesia and conservative management of the fracture was prescribed.
On 4 March 2022 an application for statutory benefits was made.
On 7 February 2023 a common law claim form was lodged with the insurer and the insurer admitted liability on 10 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 subsequent bus injury which occurred on 31 May 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 a period of 12 weeks between the date of the accident and the period to 13 May 2022 where he had been certified fully fit to return to full-time duties as a picker packer. Losses for this period were calculated as $430 his nett weekly pay for 12 weeks amounting to $5,160.
Superannuation on this sum at 11% of the total amounted to a further $567.60. In addition to this sum the tax loss was estimated at $1,219.
The parties agreed that actual loss amounted to $6,946.60 and this sum was rounded up to $7,000.
As the claimant has returned to full time work and not taken any further time off for injuries sustained in this accident, 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 6th 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 $4,892.11 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 $7,000 the net amount he would receive is $2,107.89.
The claimant was asked if he would like additional time to seek legal advice and he responded with “There is no need, 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 “Yes, it’s only 12 weeks loss”.
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 is final and I cannot claim for any other damages except medicals.”
I asked if he understood that that from the settlement a sum of $4,892.11 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: “there is none, member”.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 $7,000 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 8 February 2023;
liability notice dated 10 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 dated 2 March 2022.
· Economic loss material:
employer return to work certification dated 19 April 2022;
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 13 May 2022.
When asked if he has any further time off in 2023, he stated “No I have not had any further time off for this accident.”
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 on16 February 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 6th left rib.
The clinical records of Kildare Medical centre confirms that the injury had healed by May 2022 and that there has been no ongoing treatment. There are no ongoing concerns and he 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 29 April 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 pick packer with Afford Australia Foundation for Disability. He was unable to work for a period of 12 weeks and then returned to work on 13 May 2022. The claim is a closed period of economic loss.
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 for 12 weeks: $5,160 for wages, $567.60 for superannuation and $1,219 for tax.
The total of $6,946.60 was rounded up to $7,000.
Future economic loss
The claimant has returned to full-time work since December 2022, having had a subsequent injury unrelated to this accident 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 future 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 on 13 May 2022.
The claimant is aware that from his settlement the insurer will deduct the already paid statutory benefits in the sum of $4,892.11 and that he will receive the balance in sum of $2,107.89.
I consider the agreed settlement in the sum of $7,000 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 $7,000 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 injuries 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 $4,892.11 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 $7,000.
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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