Allianz Australia Insurance Limited v Tang
[2024] NSWPIC 298
•6 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Tang [2024] NSWPIC 298 |
| CLAIMANT: | Cynthia Hong Tang |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Terence Stern OAM |
| DATE OF DECISION: | 6 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Injuries Act 2017; compensation to relatives claim; approval of settlement under section 6.23; claimant self-represented; mother sustained catastrophic injury as a result of the motor vehicle accident and died; liability admitted by insurer; past and future damages for financial dependency and domestic services awarded; Held – settlement approved as just, fair and reasonable, and within the range of likely outcomes. |
| DETERMINATIONS MADE: | CERTIFICATE
|
STATEMENT OF REASONS
INTRODUCTION
The claimant, Cynthia Hong Tang, is the daughter of Ruiming Zhang, who was born in 1937 and was 83 years old at the time of the accident of 23 February 2021, which resulted in her death and in this Compensation to Relatives Act claim.
At 9.30am on Tuesday 23 February 2021, Ms Zhang, a pedestrian, was hit by a motor vehicle which was reversing on Woodland Road, without keeping a proper lookout.
As a result of the accident, Ms Zhang suffered catastrophic head injuries and died.
The deceased, who was born in 1937, was in good health prior to her accident.
This claim was bought by the deceased’s daughter, Cynthia Hong Tang (the claimant), who was 55 years.
At the time of the accident, the claimant was working at Australian Nursing Home Foundation and was earning approximately $1,137.88 gross per week and had been employed there for about eight years prior to the accident.
At the time of the accident, the deceased was in receipt of a Chinese pension, of approximately $928 per month, equivalent to about $232 per week on current exchange rates.
The deceased had been in robust health.
The accident
The deceased was crossing a road, in Chester Hill, when a garbage truck turning right, failed to give way, and collided with the deceased, who sustained catastrophic injury and died.
The claimant lodged a Compensation to Relatives claim on 12 May 2021.
The insurer admitted liability initially with an allegation of 20% contributory negligence.
The claim
The claimant alleged that she was dependent upon the deceased for housekeeping, cooking, laundry, household chores and financial support, in the aggregate amount of $250 per week.
The claimant alleged that the deceased had made a total contribution for the household of around $90,000 prior to her death.
In addition to the lump sum now proposed by the insurer, the insurer has paid all funeral expenses, and the cost of the headstone. The insurer does not seek reimbursement.
The claimant has alleged that the deceased had been paying $250 a week for rent and grocery expenditure for the household, which was about 25% of her net income. She had been depositing the balance of her net income into her savings account.
Offer of settlement
On 16 May 2024, the insurer made an Offer of Settlement of the claimant’s Compensation to Relatives Claim in the following terms:
(a) past financial dependency $44,362.50
(b) future financial dependency $84,809.81
(c) past domestic services $26,640
(d) future domestic services $7,889.70
Rounded UP total = $164,000.
The claimant has accepted the offeer, but the offer and acceptance are subject to the approval of a member of the Personal Injury Comission (Commission).
Documents to be considered
The following documents were before the Comission and considered in making this determination:
(a) insurer’s submissions dated 15 April 2024;
(b) Compensation to Relatives claim form dated 9 May 2021;
(c) particulars and bank records dated 4 July 2021;
(d) NSW police report dated 14 April 2021;
(e) further particulars dated 2 August 2021;
(f) liability notice dated 5 August 2021;
(g) English translation of bank records dated 28 July 2022;
(h) Prior compulsory third party (CTP) QBE file dated 29 July 2022;
(i) Deceased general practitioner (GP) records – Fairfield Medical Centre;
(j) visa documents;
(k) further particulars, and
(l) Deed of Release.
Deed of release
The insurer produced the ‘Agreement for Release and Indemnity – Compensation to Relatives’ on 1 March 2024.
The agreement was made between Cynthia Tang and Allianz Australia Insurance Limited (ABN 15 000 122 850) of Carrington Street, Sydney NSW 2000 (the insurer).
The agreement was made prior to the final settlement offer.
In the agreement of 1 March 2024, the insurer was entitled to deduct from the payment:
(a) “all amounts paid or paybale by the insurer to Centrelink;
(b) any amounts payable or payable by You or the Insurer to your employer or the employer’s workers compensation insurer pursuant to s 251Z of the Workers Compensation Act 1987 (NSW), and
(c) sick leave payments, make up pay, accident pay, or otherwise and whether in respect of any statute, regulation, award or agreement or otherwise concerning which any demand or notice has been served on or given to the Insurer either before, on or after the date hereof.”
No further deductions were made from the final settlement amount of $164,000.
Legislation and legal principles
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.
As a member of the Motor Accidents Division of the Commission, cl 14A(1) of the Personal Injury Commission Regulation 2020 and clause 14D empowers me to determine those proceedings.
Cl 14D(3)(b) of the Personal Injury Commission Regulation 2020 provides that the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Guidelines (the Guidelines) apply.
In making my decision I have considered the following legislation and guidelines:
(a) the Personal Injury Commission Act 2020;
(b) the Personal Injury Commission Rules 2021;
(c) the Personal Injury Commission Regulation 2020;
(d) the MAI Act, and
(e)the Guidelines.
Section 6.23 of the MAI Act states:
“6. 23 Restrictions on settlement of claim for damages
· (1) (Repealed).
· (2) A claim for damages cannot be settled unless –
(a) the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b) the proposed settlement is approved by the Commission.
· (3) The Commission is naot to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Regulation 95 of the Personal Injury Commission Rules states:
“95 Application for approval of Damages settlement
· (1) If a claimant, who is not represented by an Australian legal practitioner, and an insurer have agreed to a proposed damages settlement, the insurer must lodge an application for approval of a damages settlement under section 6.23 of the MAI Act, on behalf of both the claimant and the insurer, within 7 days of reaching the agreement.
· (2) (Repealed).”
Clause 7.37 of the Guidelines states:
“Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act [since repealed];
(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.”
Clause 10 of the Commission’s Procedural Direction MA3 provides that the application must include:
(a) a deed of release;
(b) the amount of the proposed damages settlement, including a breakdown of the amount allowed for each head of damage and how each amount allowed has been calculated;
(c) the amount of any reductions in the proposed damages settlement including for contributory negligence or any other reduction, including brief reasons for that reduction and how any reductions have been calculated;
(d) the amount of any advance payments that the insurer has made in advance of the settlement and the dates of those advance payments, including brief reasons explaining why those advanced payments were made, and
(e) the evidence, documents and materials relevant to an assessment of the damages settlement including liability notices.
I am satisfied that the application complied with cl 10 of the Commission’s Procedural Direction MA3.
Preliminary conference
At a preliminary conference on 20 May 2024, I explained to the claimant that, as she was not legally represented, the proposed settlement had to be approved by the Commision, the claimant acknowledged that she understood this to be the case.
In the course of the preliminary conference, I asked the claimant whether she wished me to approve the offer, and she clearly did (this was at the level of the previous offer).
I discussed with the parties, the relevance of the deceased’s health prior to death and whether or not it was consistent with principle that the deceased’s life expectancy was calculated in accordance with statistical tables, or whether it should be calculated on the basis of the claimant’s actual life expectancy, given that she was in robust health at the time of her death.
There was discussion about other aspects of the factual matrix, and it was agreed that the insurer would have another look at the matter, and as a result, the insurer submitted the further offer set out above.
Should the proposed settlement be approved?
Allianz has offered to settle Ms Tang’s claim for damages for $164,000, which she has accepted by way of Agreement for Release, subject to approval by the commision.
The entitlement to compensation upon the death of a person in the circumstance, is governed by the provisions of the Compensation to Relatives Act 1987 (NSW) which sets out the manner in which, dependent on the deceased, is to be compensated. I have considered the offer in the light of such provisions.
The costs paid by the insurer for the funeral and headstone are not to be deducted from the final settlement amount.
Conclusion
I am satisfied that 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 losses sustained by the claimant, and also taking into account the deductions to be made from the proposed settlement.
I am satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner but does not wish to do so.
I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that he will be precluded from making a further claim for damages arising out of the motor accident.
Ms Tang accepted the proposed settlement by the insurer on 4 June 2024.
Accordingly, under s 6.23(2)(b) of the MAI Act, the proposed settlement of Ms Tang’s claim for damages in the amount of $164,000 is approved.
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