Allianz Australia Insurance Limited v Sternfeld
[2023] NSWPIC 77
•2 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Sternfeld [2023] NSWPIC 77 |
| Claimant: | Lola Sternfeld |
| insurer: | Allianz Australia Insurance Limited |
| Member: | David Ford |
| DATE OF DECISION: | 2 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 89 year old female passenger in a motor vehicle which collided with a concrete pillar in an underground carpark; sustained a right lateral tibial fracture with residual knee pain; entitlement to non-economic loss only; claimant is a pensioner; Held – the proposed settlement is just, fair and reasonable; settlement approved under Section 6.23(2)(b). |
| determinations made: | CERTIFICATE OF DETERMINATION 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 28 June 2019 the claimant was a passenger in a motor vehicle which was entering an underground car park at Lane Cove. It then transpired the driver of the insured vehicle collided with a concrete pillar. As a consequence of the collision, the claimant suffered a fracture of her right tibial plateau.
The claimant was taken by ambulance to the Royal North Shore hospital where she was admitted and underwent surgery being an open reduction and internal fixation and bone grafting of the fracture. Unfortunately, the claimant experienced ongoing symptoms of lower limb swelling, inflammation and pain in the knee and some numbness in her foot. She was referred to a pain specialist and a psychologist to assist her with her pain.
The claimant lodged an application for personal injury benefits on 14 July 2019. Liability was admitted by the insurer on 11 August 2021.
Unrelated to the motor vehicle accident the claimant was diagnosed with breast cancer in 2021 and underwent surgery. She is currently on medication which has delayed any further treatment of the knee. She was assessed by Dr Courtenay who noted significant stiffness in the lower back and significant restriction in the knee. Ultimately, he assessed the whole person impairment to be 20%. The insurer accordingly conceded entitlement to non-economic loss in October 2022.
The claimant is presently 89 years of age. She is a pensioner and there is no claim for either past or future economic loss. The claim is only for damages for non-economic loss.
At the teleconference, I was advised by her that she wants to resolve her case for the amount proposed by the insurer in the sum of $160,000.
I consider the settlement is appropriate in all the circumstances of this case.
The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the 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 (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.
10. I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14A(1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14D empowers me to determine those proceedings.
11. Because of the date of the accident cl 14D(3)(b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
12. The claimant confirmed she had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
13. I am satisfied the claimant is aware of her right to have reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay 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.
14. The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act 1995 (Cth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.
CONCLUSION
15. 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.
16. I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
17. I am satisfied the claimant understands the binding nature of the settlement and she will be precluded from making a further claim for damages arising out of the accident.
18. I am satisfied the claimant is willing to accept the proposed settlement.
19. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
20. Sections 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 the requirements of the MAI Act or the Guidelines.
21. 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 member, 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 13 FEBRUARY 2023
22. The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. The claimant participated in person and the insurer was represented by Amie Walsh.
23. The proposed deed of release was lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
24. I am satisfied it is appropriate in this matter to assess damages for non-economic loss in the sum of $160,000.
25. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
0
0
0