Allianz Australia Insurance Limited v Uehling
[2023] NSWPIC 136
•30 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Uehling [2023] NSWPIC 136 |
| Claimant: | Gregory Uehling |
| insurer: | Allianz Australia Insurance Limited |
| Member: | David Ford |
| DATE OF DECISION: | 30 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 60-year-old driver involved in a rear end collision whilst stationary in his vehicle; sustained full thickness injury to left arm resulting in severe hyperpigmentation; no further ongoing medical issues; self-employed investment property consultant entitled to damages for past economic loss only; Held – the proposed settlement is just, fair and reasonable; the proposed settlement is approved under section 6.23(2)(b). |
| determinations made: | CERTIFICATE OF DETERMINATION DETERMINATIONS MADE 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
The claimant was driving his motor vehicle on the 8 January 2018, along the Great Western Highway at Hazelbrook. It then transpired, after he brought his vehicle to a halt, the motor vehicle driven by the insured driver, collided with the rear of the claimant’s vehicle. Because of the collision, the claimant sustained a full thickness injury to his left forearm.
He was taken by ambulance to Katoomba hospital, where he was admitted and discharged later that same day. He came under the care of his general practitioner
Dr Knight. Dr Knight found severe hyperpigmentation and distal neuropathy. The claimant was referred for nerve conduction studies, the result of which found moderate ulnar neuropathy at the level of the elbow, but no evidence of motor conduction block.In November 2022, Dr Knight reported the claimant had not recently consulted him in relation to his arm injury or neuropathic pain and he was of the view there was no further ongoing issues of which he was aware. At the preliminary teleconference, the claimant confirmed he had no ongoing issues regarding his injury, and he had no difficulty in carrying out his daily employment tasks.
Photographs of the scarring to his left forearm were lodged on the portal and viewed by me.
I reminded the claimant to submit to the insurer all outstanding medical invoices in his possession for payment and or reimbursement by the insurer.
The claimant was born in 1963 and is presently 60 years of age. In the application for personal injury benefits he states he is self employed as a U.S. investment property consultant. The claimant advised me he wishes to accept the proposed settlement.
The insurer conceded the claimant is entitled to damages. The claimant only has a claim for past economic loss.
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.
I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14(A)(1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14(D) empowers me to determine those proceedings.
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.
The claimant confirmed he can carry out the day-to-day employment tasks required by him.
The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
I am satisfied the claimant is aware of his right to have reasonable treatment expenses paid for the remainder of his 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.
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
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.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
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
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 any of the requirements of the MAI Act or the Guidelines.
Clause 7. of the Guidelines states I must be satisfied as to the following:
(a) 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, taking into the account the nature and extent of the claim and the injuries, disabilities, impairments, and losses sustained by the claimant, and considering any proposed reductions or deductions in the proposed settlement, and
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
Preliminary Conference on 27 March 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary teleconference on 27 March 2023. The claimant participated in person and the insurer was represented by Aimee Walsh.
The proposed deed of release was lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for past economic loss in the sum of $4,000.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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