Allianz Australia Insurance Limited v Rust
[2023] NSWPIC 506
•28 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Rust [2023] NSWPIC 506 |
| CLAIMANT: | Dean Rust |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 28 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant involved in a motor bike accident; liability wholly admitted; claimant fractured his left scapula, sustained soft tissue injuries and developed PSTD; claimant made a good recovery; claimant a tool maker; initially the claimant was unfit for work gradually returning to pre-accident capacity; claimant understood the consequences of the approval of the proposed settlement; statutory benefits paid $26,052; offer included an additional amount for past economic loss and a buffer for future economic loss; claimant entitled to future reasonable treatment for life; Held – proposed settlement approved under section 6.23(2((b) in the sum of $175,000; statutory benefits $26,052. |
DETERMINATIONS MADE: | CERTIFICATE The proposed settlement is approved under s 6.23 (2)(b) of the Motor Accident Injuries Act 2017 in the sum of $175,000. Issued under s 6.23 of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 2 October 2020, Mr Dean Rust, was riding his motor in a northerly direction along Tench Avenue, Jamisontown near Penrith. Mrs Amanda Rust, his wife was a pillion passenger. The insured’s driver was travelling in front of the claimant when he pulled off to the left before performing a U-turn in the path of the motor bike. Both Mr and Mrs Rust were ejected from the bike causing significant injuries to both.
The police and ambulance attended the scene of the accident. Mr Rust was conveyed by ambulance to Westmead Hospital.
Dean has made a claim against Alliance Australia Insurance Limited (the insurer), the insurer at fault, for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted that Mr Rust had 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 and care for the rest of his life for his accident caused injuries.
Dean and the insurer have reached agreement as to settlement of the claim for damages.
Because Mr Rust is not represented by a lawyer, his settlement must be approved in accordance with the MAU Act.
The insurer has not conceded Mr Rust has sustained a whole person impairment (WPI) greater than 10% and accordingly there is no entitlement to recover damages for non-economic loss. The claim is limited to past and future economic loss.
THE RELEVANT LAW
Section 6.23(2) and (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 the requirements of the MAI Act or the Guidelines.
Clause 7.37 of the Guidelines states I must be satisfied that the proposed settlement is just, fair and reasonable and within the range of likely potential damages that would be assessed by a member taking into account the nature and extent of the claim having regard to the claimant injuries, disabilities, impairments, and losses sustained taking into consideration any deductions in the proposed settlement.
Also, the claimant must understand the nature and effect of the settlement.
DOCUMENTS CONSIDERED
I have read and considered all the material provided with the insurer’s application as set out in the index. I asked Mr Rust during the preliminary conference if he had any further material he wished to put before me before I published this decision with reasons. He confirmed he was satisfied the insurer had included all relevant material and he had nothing further to contribute.
REVIEW OF THE EVIDENCE
Mr Rust is currently 54 years old. At the time of the accident he was riding his Soft Tail Harley Davidson motor cycle. His wife was a pillion passenger. The insured driver was travelling in the same direction in his Toyota Hilux. He veered left into a bus stop area and let one vehicle pass before performing a U-turn in front of the Harley causing a significant collision which ejected both Mr and Mrs Rust from the bike.
The ambulance report describes the scene of the accident on arrival. Mr Rust was administered morphine during transportation to Westmead Hospital for pain.
He was diagnosed with a left scapula fracture and soft tissue injuries. These were treated conservatively and managed by his general practitioner at Ochre Health Medical Centre. He told me he had made a good recovery from his physical injuries.
After the accident, Mr Rust developed psychological injuries in the nature of flashbacks, intrusive memories and recurrent dreams relating to the accident. He reported to Dr Anand, he experienced poor sleep. He shared with the doctor he felt guilty about the accident and at times, was irritable and anxious. He was referred to Dr Ashwinder Anand on 5 May 2023 by the insurer for the purpose of an independent medical examination. The doctor diagnosed Mr Rust had developed post-traumatic stress.
I asked Mr Rust about his emotional state and he confirmed he was learning to live with it. I explained to him his rights to access reasonable treatment for any ongoing anxiety which could be managed by a professional counsellor. He agreed and indicated he would seek treatment in the future to assist him to cope with his symptoms.
ECONOMIC LOSS
At the time of the accident, Mr Rust was working as a tool maker for Thales Group. He has worked for this company for over 33 years. His pre-accident weekly earnings were $1435.59 gross.
He had no working capacity to work from the date of the accident until14 February 2021. He returned on that date at a reduced capacity until 6 April 2021. Since this date, Mr Rust has returned to his pre-accident work capacity.
During Mr Rust’s total and partial work incapacity, he was paid by the insurer, statutory benefits amounting to $26,052.18. The insurer seeks a credit for this amount. I discussed this with Mr Rust and he understood this amount has to be credited to the insurer.
THE PROPOSED SETTLEMENT
The insurer calculated the offer of settlement in the sum of $175,000. The statutory benefits amount to $26,052 out of the proposed settlement sum.
The insurer calculated the claimant’s pre-accident weekly benefits in the sum of $31,668.71 which has been rounded up to $33,000. This include a 11% superannuation amount for the past. The amount includes a period for total incapacity for 19.3 weeks and partial incapacity for a further 8 weeks.
For the future, the insurer includes a buffer for future economic loss in the sum of $142,000. This amount has taken into account Mr Rust returned to full time employment with no restrictions. Further, the medical evidence notes a successful return to work.
The future loss is based on the requirement he may need to take days off for treatment and/or aggravated symptoms. More importantly, Mr Rust’s injuries have impacted his capacity to accept overtime offered.
Mr Rust has 13 years to date of retirement. The insurer has adopted a 20% future economic loss. Vicissitudes have been applied as well as an allowance for superannuation. The calculation amounts to $133,907.39 which has been rounded up to $142,000.
TELECONFERENCE ON 20 SEPTEMBER 2023
Notwithstanding, I made a number of attempts to connect the insurer’s representative to the teleconference, my attempts were unsuccessful. The link to Mr Rust included his wife who told me she had sustained serious injuries in the accident. Her claim had been resolved a week or two before, Mr and Mrs Rust were happy to proceed in the absence of the insurer.
I explained to Mr Rust he was entitled to be legally represented. He agreed he understood that but confirmed he was happy to proceed representing himself.
He agreed he understood he is entitled to access in the future for all reasonable treatment for accident-related injuries. He promised he would see a counsellor to assist him with ongoing psychological injuries.
I explained to Mr Rust the finality of the proposed settlement. I advised him after the credit to the insurer for statutory benefits, he would receive a net sum of $148,947.82. He confirmed he understood that to accept the settlement he was not entitled to make a further claim. He advised me he was happy with the offer and the net sum.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied Mr Rust is aware the settlement finalises his entitlement to weekly benefits and to common law damages under the MAI Act.
I am satisfied that Mr Rust is aware of his rights to have reasonable treatment expenses paid for the rest of his life. The insurer will not deduct and pay monies to Medicare from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment, 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 and impairments and losses sustained by Mr Rust.
I am satisfied Mr Rust is aware he can seek legal advice but does not wish to do so.
I am satisfied Mr Rust 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 Mr Rust is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of Mr Rust’s claim for damages in the sum of $175,000.
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